d the limits of economics' 19 Kyklos 33
W E Odum 1982, 'Environmental degradation and the tyranny of small decisions' 32 BioScience 728
M Taylor and R Stokes 2005, 'Up the creek; what's wrong with the definition of a river in New South Wales?' 22 EPLJ 193
Category: Principal judgment
Parties: Samer Bazzi (Applicant)
Sutherland Shire Council (Respondent)
Representation: Solicitors:
Mr J Palmer, Pikes and Verekers Lawyers (Applicant)
Ms J Amy, Sutherland Shire Council (Respondent)
File Number(s): 364899/16
Publication restriction: No
[2]
Introduction
This is an appeal by the Applicant, Mr Bazzi, pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ('EP&A Act') against the refusal by the Respondent, Sutherland Shire Council, of Development Application No. DA 16/0359 for the proposed subdivision of one lot into three lots at 24 - 26 Wonga Road, Yowie Bay and the construction of an access driveway and associated works to service the proposed lots.
Currently existing on the site is a 1/2 storey dwelling of weatherboard construction on brick supporting walls with a tiled pitched roof. The house is situated on the upper part of the property, close to Wonga Road. If the proposed subdivision is approved, the house would be situated on proposed Lot 1. The application does not seek approval for the demolition of the existing dwelling. Clause 2.7 of Sutherland Shire Local Environmental Plan 2015 ('SSLEP2015') provides that demolition of a building requires development consent.
The site is irregular in shape, with a frontage to Wonga Road of 26.5 m. The total area of the site is approximately 3760 m². (The minor differences, of the order of a few square metres, in references to the total area in different documents are of no consequence to the current discussion).
An aerial image of the site and surrounding properties, taken from Exhibit 3, is reproduced below. I understand that the underlying image dates from 2015. The development shown to the west of the subject site on 28 Wonga Road has proceeded since that time and construction of a dwelling is now well advanced. An important consideration in assessing the proposal is that the property is traversed by a Foreshore Building Line, shown in pink on the image.
The site descends from Wonga Road to the waterfront with a total fall of approximately 48 m. The fall is not uniform, and is significantly steeper from about 40 m from the road to the shore. There are numerous rock outcrops and rock retaining walls on the site.
Image taken by Mr L Mariani, Environmental Assessment Officer, Sutherland Shire Council, on 18 May 2016. This image illustrates the nature of the rock features on the site, rather than any particular outcrops (in Exhibit 3 at Folio 49).
Along the south eastern boundary of the site there is an easement, 15 feet wide, for drainage works gazetted on1 December 1933. (Exhibit 3 at Folio 130 -134, the plan of the easement being at Folio 134). The nature of the landform within the easement was a contested matter and will be discussed further below. As can be seen in the aerial image the lower part of the site supports continuous native vegetation, referable to the plant community known as the Coastal Enriched Sandstone Dry Forest. This vegetation is in generally good condition, but with some occurrences of non-native and weedy species. In the easement along the south east boundary of the property there is a higher incidence of weeds.
The matter commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979 held on site on 22 March 2017. At the start of the proceedings a number of resident objectors spoke, and a summary of the matters raised by residents became Exhibit 1 in the hearing. The site was viewed from 28 Wonga Road, and from 5 Cliff Haven Place. The inspection continued with myself, the parties and their experts traversing the site, with particular attention given to the position of the Foreshore Building Line, trees identified for possible removal and rock outcrops. Observations of the site were made from Alkaringa Road, looking across Alcheringa Creek. After discussion between the parties and their experts, the s 34 conference was adjourned, but subsequent achievement of agreement between the parties not being possible the s 34 conciliation was terminated on 30 May 2017. On 27 June 2017 the applicant was given approval to rely on amended plans. The parties agreed to me presiding at the subsequent hearing, with evidence heard during the conciliation conference being evidence at the hearing.
The matter has had a long history, with proceedings commencing on 6 December 2016. The development application was first submitted on 3 March 2016, and following neighbour notification, site inspections by council officers and exchanges of correspondence between the Applicant and the Respondent, the application was refused by the Respondent on 18 December 2016.
[3]
Preliminary Issues
The applicability to the proceedings of two planning instruments - Sutherland Shire Development Control Plan 2015 ('SSDCP 2015') and the Draft Coastal Management State Environmental Planning Policy ('SEPP') were matters which were contentious. In addition, an issue was raised regarding alleged past clearing of part of the subject land.
[4]
The Development Control Plan
When the development application was lodged the local environmental plan against which the application was to be assessed was Sutherland Shire Local Environmental Plan 2015 ('SSLEP 2015'). Clause 1.8 of SSLEP 2015 repealed all local environmental plans and deemed environmental planning instruments which applied to the land covered by SSLEP 2015 up to the time SSLEP 2015 was made. Thus the previous local environmental plan, SSLEP 2006 was repealed. SSLEP 2006 was supported by Sutherland Shire Development Control Plan 2006 (SSDCP 2006), but this ceased to apply when SSLEP 2015 came into force.
When the development application, the subject of these proceedings, was made Sutherland Shire Development Control Plan 2015 ('SSDCP 2015') was in draft, and did not come into force until 2 August 2017.
SSDCP 2015 does not contain savings provisions, so that, given that the hearing commenced on 11 September 2017, it is a relevant matter for consideration under s79C of the EP&A Act. However, Mr Palmer for the Applicant urged that little weight be given to the SSDCP 2015 given that the matter had been before the Court long before it came into force.
In support of his submissions Mr Palmer drew my attention to judgements of Commissioner Dickson - Hurley v Sutherland Shire Council [2016] NSWLEC1603, and Innovate Architects v Sutherland Shire Council [2017] NSWLEC 1067- in which the Commissioner determined that little weight should be given to the then draft SSDCP 2015.
In the period in which there was no validly applicable DCP, Sutherland Shire Council had adopted the draft SSDCP 2015 as a policy to be applied during the assessment of development applications since the commencement of SSLEP 2015 in June 2015.
In considering what weight is to be given to planning policy, the principles proposed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [90] -[92] are relevant:
"90. The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act 1979. It was similarly acknowledged in s 91 of the Act in its original form. It must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan.
91. In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options.
92. To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:
•the extent, if any, of research and public consultation undertaken when
creating the policy;
•the time during which the policy has been in force and the extent of any
review of its effectiveness;
•the extent to which the policy has been departed from in prior decisions;
•the compatibility of the policy with the objectives and provisions of
relevant environmental planning instruments and development control
plans;
•the compatibility of the policy with other policies adopted by a council or
by any other relevant government agency;
•whether the policy contains any significant flaws when assessed against
conventional planning outcomes accepted as appropriate for the site or area
affected by it."
The preparation of SSDCP 2015 involved two rounds of consultation and the draft SSDCP 2015 has been applied since the coming into force of SSLEP 2015; although not formally rebadged as a Council Policy, the Draft DCP was treated as a de facto policy. I was not taken to any examples where the Council had applied the draft DCP inconsistently or where it was incompatible with other policies. Neither was I taken to any major differences between those parts of SSDCP 2006 and SSDCP 2015 relevant to the present matter, other than some reorganisation and renumbering of chapters. Commissioner Chilcott in Andrew Aitchison v Sutherland Shire Council [2017] NSWLEC 1304 (a judgment made before SSDCP 2015 came into force) concluded at [54] - [55] that he should give significant weight to draft SSDCP 2015, given that, as a policy applied by council, it satisfied the principles in Stockland Development at [92]. It is to be noted that the matter in Andrew Aitchison involved land zoned E4 Environmental Living unlike the situation in Hurley where the land was zoned R2 Low-Density Residential and for which the draft SSDCP2015 differed in its provisions from those in SSDCP 2006 and in Innovate Architects where zoning was R4 High Density Residential. In the current matter the zoning is E3 Environmental Management.
I adopt the reasoning of Commissioner Chilcott in Andrew Aitchison as the principles in Stockland Development at [92] are satisfied. In addition SSDCP had been foreshadowed for a considerable period and had come into force before the hearing commenced. It should therefore be given significant weight. SSDCP 2015 includes a number of maps which will be discussed later in the judgement; despite Mr Palmer arguing that little weight to be given to the DCP, interpretation of several of these maps is more favourable to the Applicant's case than it is to the Respondent's.
[5]
The Draft Coastal Management SEPP
Part of the site is mapped as a Coastal Environment Area and part as a Coastal Use Area under the Draft Coastal Management SEPP. The mapped area extends from the waterfront to about halfway within the proposed Lot 2. The Respondent contends that future development 'would have adverse impacts on the native vegetation and fauna and on rock platforms within the Coastal Environment Area'. This would be contrary to clause 14 (1) of the Draft Coastal Management SEPP.
"Rock platform" is not defined, but within the context of the Draft SEPP I would take it to refer to intertidal rock platforms which are well-known to be important habitats for intertidal organisms. The supratidal rock outcrops on the subject site are above the tidal limit and are subject to different environmental processes and support different biota to intertidal rock platforms, so I would not regard the draft Coastal Management SEPP as being of applicability to the rocks above the level of waterfront on the site. I am strengthened in this view by SSLEP 2015 cl.6.8 (2) which makes a distinction between 'rock outcrops' and 'rock platforms'.
The Draft Coastal Management SEPP is proposed to enable the operation of the Coastal Management Act 2016. This Act was assented to in June 2016 but has not yet been proclaimed.
The draft SEPP was on public display from November 2016 until 20 January 2017. It is understood that the Department of Planning and Environment is considering the submissions received as a result of the public notification. Mr Palmer presented material from the department's website which indicates the current position regarding finalisation of the SEPP (Exhibit Q). These documents give no indication of when (or if) the SEPP will come into force.
Given that the Act which the SEPP, if made, would support is yet to be proclaimed, and given the length of time since closure of the public comment period on the draft SEPP, I cannot assume that the making of the SEPP is either imminent or certain. Thus, to the extent that cl 14 of the draft SEPP would apply to the site, I can only give it little weight. However, the provisions in cl 14 of the draft SEPP broadly reflect the requirements of SSLEP 2015 as they apply to the areas near the foreshore and so would be considered under the provisions of the SSLEP.
[6]
Past clearing
On 4 April 2017 Sutherland Shire Council issued the applicant with an order pursuant to s121 of the EP&A Act requiring the Applicant to prepare and implement a detailed Bushland Restoration Plan (Exhibit O). The reason for issuing the order was that the Council alleged 21 trees had been removed from the site below the FBL without a development consent.
Mr Palmer did not accept that there had been unlawful clearing (submissions 2 (i)), but nevertheless the date for appeal against the order had passed so that the Applicant was bound by the order.
The alleged past unlawful clearing is irrelevant to the determination of the current matter (Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99). It is not permissible to include the number of trees allegedly unlawfully cleared as a component of the current proposal for purposes of calculating the total clearing associated with the proposal. Nevertheless, the relationship between the Bushland Restoration Plan required by the order and the Vegetation Management Plan (VMP) proposed by Mr Stricker, would require clarification. The proposed conditions of consent, at condition 18, require augmentation of the VMP subject to a number of amendments.
[7]
Respondent's contentions
The Respondent's amended Statement of Facts and Contentions (SOFAC) was filed on 26 July 2017 (Exhibit 2).
Ms Amy for the Respondent did not press a number of contentions included in the amended SOFAC. These were:
7 SEPP 55 Contaminated Land
The Respondent accepted the findings by Hayes Environmental Consulting Pty Ltd in the Report Stage One Preliminary site investigation (soil contamination assessment) 24 - 26 Wonga Road, Yowie Bay, NSW 2228 dated 4 September 2017 (exhibit L) and the removal from the site of the waste stockpile HA4 on 4 September 2017 demonstrated that the matters initially raised by the contention were no longer of concern.
-8 Driveway
This contention, dealing with engineering aspects of the proposed driveway was resolved in the Joint Expert Report of the engineering experts (Mr Mikhail and Mr Logan for the Applicant, Mr Rayner for the Respondent) (Exhibit 7) Other matters relating to the driveway were not considered by the engineers and remain in contention.
-9 Stormwater Management
The issues were resolved by the Joint Expert Report of the Engineers (Exhibit 7)
-11 Inadequate Information
It was agreed that the extra details had been supplied.
In relation to contention 2, the undersizing of proposed Lot 2, a variation statement addressing cl 4.6 of SSLEP 2015 had been submitted. This submission satisfied contention 2.1 (c), but the Respondent maintained its objection to the proposed undersized lot.
The contentions in addition to parts of Contention 2 which the Respondent continued to press are:
-3 Unreasonable building footprint for proposed Lot 3.
-4 unacceptable impacts of the Right of Carriageway.
-5 Unacceptable impacts on the environment.
--6 Bush fire.
The matters raised by objectors covered much of the same ground as those in the Respondent's contentions, albeit with sometimes different emphasis. The objections were summarised in Exhibit 1 and covered:
Overdevelopment;
breaking the existing pattern of buildings in the neighbourhood;
location of Lot 3;
increased traffic on Wonga Road;
location of right of carriageway;
loss of trees, including losses necessary to achieve bush fire protection;
impact on privacy;
increase in background noise;
noise of excavation into rock during construction; and
loss of views.
There was considerable overlap between the issues raised by the five presenters, who all indicated general support for the positions put forward by the other objectors. It is to be noted that a number of the objections relate to possible impacts of subsequent construction within the lots following subdivision. This falls outside the current proposal.
During the hearing, further evidence was presented by Mrs Spink who expressed her concerns about the possible impact of the raised carriageway on her enjoyment of 5 Cliff Haven Place. Her evidence was illustrated by a photograph showing the side of her house and the adjacent area of Number 24-26 Wonga Road (Exhibit 8).
[8]
Statutory Controls
The applicable local environmental plan is SSLEP 2015. The aims of the plan are:
"1.2 Aims of Plan
(1) This Plan aims to make local environmental planning provisions for land in Sutherland Shire in accordance with the relevant standard environmental planning instrument under section 33A of the Act.
(2) The particular aims of this Plan are as follows:
(a) to deliver the community's vision for Sutherland Shire by achieving an appropriate balance between development and management of the environment that will be ecologically sustainable, socially equitable and economically viable,
(b) to establish a broad planning framework for controlling development, minimising adverse impacts of development, protecting areas from inappropriate development and promoting a high standard of urban design,
(c) to protect and enhance the amenity of residents, workers and visitors in all localities throughout Sutherland Shire,
(d) to minimise risk to life, property and the environment from hazards, particularly bush fires, flooding and climate change,
(e) to concentrate development in localities with adequate infrastructure that is accessible to transport and centres,
(f) to protect and enhance the natural environment and scenic quality of the Sutherland Shire through the retention and rehabilitation of wildlife habitats, wildlife corridors, bushland, foreshores and waterways,
(g) to conserve, protect and enhance the environmental and cultural heritage of Sutherland Shire,
(h) to provide leisure and recreation opportunities to suit the needs of the changing population,
(i) to meet the future housing needs of the population of Sutherland Shire."
The site is zoned E3 Environmental Management. The objectives for land so zoned are provided in the Land Use Table:
"Zone E3 Environmental Management
1 Objectives of zone
• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
• To provide for a limited range of development that does not have an adverse effect on those values.
• To allow development of a scale and nature that maintains the predominantly natural landscape setting of the locality and protects and conserves existing vegetation and other natural features of the locality.
• To limit development in the vicinity of the waterfront so that the locality's natural qualities can dominate.
• To allow the subdivision of land only if the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment.
• To share views between new and existing development and also from public space.
2 Permitted without consent
Home occupations
3 Permitted with consent
Bed and breakfast accommodation; Boat sheds; Dwelling houses; Environmental protection works; Flood mitigation works; Health consulting rooms; Home businesses; Home industries; Places of public worship; Recreation areas; Roads; Secondary dwellings
4 Prohibited
Industries; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3."
Clause 2.6 (1) of the LEP provides that:
"2.6 Subdivision - consent requirements
(1) Land to which this Plan applies may be subdivided, but only with development consent."
The minimum size of subdivision lots is determined by cl 4.1:
"4.1 Minimum subdivision lot size
(1) The objectives of this clause are as follows:
(a) to ensure that a new lot created for the purpose of a dwelling house has a sufficient area available for the following:
(i) a dwelling house and ancillary facilities,
(ii) an outdoor recreation and service space,
(iii) vehicular access to and from the lot,
(iv) landscaping,
(v) drainage,
(vi) parking,
(b) to ensure that new development complements the established scale and character of the streetscape where the development is carried out, and does not dominate the natural qualities of its setting,
(c) to ensure that lot sizes and dimensions allow development to be sited to protect natural or cultural features including heritage items, remnant vegetation, habitat and waterways.
(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.
(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.
(3A) Development consent must not be granted for the subdivision of land that would result in an internal lot for which the minimum lot size shown on the Lot Size Map in relation to that land is specified in Column 1 of the table to this subclause, unless the size of the internal lot is not less than the size specified opposite in Column 2 of that table.
Column 1 Column 2
550 square metres 700 square metres
700 square metres 850 square metres
850 square metres 1,000 square metres"
[9]
Additional minimum subdivision requirements are provided in cl 4.1A:
"4.1A Minimum subdivision requirements in certain residential and environment protection zones
(1) …
(2) Development consent must not be granted for the subdivision of land in Zone E3 Environmental Management or Zone E4 Environmental Living unless each lot resulting from the subdivision will have:
(a) a minimum width of 18 metres at the building line, and
(b) a minimum depth of 27 metres."
The current proposal is for subdivision and carriageway construction, and not for building construction. Nevertheless, on the Respondent's contentions it is necessary to have regard to controls that would be applicable to any building proposed subsequent to subdivision approval.
Height of buildings is controlled by cl 4.3:
4.3 Height of buildings
(1) The objectives of this clause are as follows:
(a) to ensure that the scale of buildings:
(i) is compatible with adjoining development, and
(ii) is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and
(iii) complements any natural landscape setting of the buildings,
(b) to allow reasonable daylight access to all buildings and the public domain,
(c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,
(d) to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,
(e) to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings in those zones,
(f) to achieve transitions in building scale from higher intensity employment and retail centres to surrounding residential areas.
(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map."
The maximum height of buildings permissible on the site is 8.5 m.
The permissible floor space ratio is determined by cl 4.4
"4.4 Floor space ratio
(1) The objectives of this clause are as follows:
(a) to ensure that development is in keeping with the characteristics of the site and the local area,
(b) to ensure that the bulk and scale of new buildings is compatible with the context of the locality,
(c) to control development density and intensity of land use, taking into account:
(i) the environmental constraints and values of the site, and
(ii) the amenity of adjoining land and the public domain, and
(iii) the availability of infrastructure to service the site, and
(iv) the capacity of the road network to accommodate the vehicular and pedestrian traffic the development will generate, and
(v) the desirability of retaining the scenic, visual, and landscape qualities of the area.
(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map."
The Floor Space Ratio map provides that the maximum floor space ratio that would be permissible is 0.5:1.
Notwithstanding the development standards specified in the SSLEP 2015 the instrument provides, in cl 4.6, a mechanism by which an applicant can seek approval for exceptions to the standards:
"4.6 Exceptions to development standards
(1) The objectives of this clause are as follows:
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b) the concurrence of the Secretary has been obtained.
(5) In deciding whether to grant concurrence, the Secretary must consider:
(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the development standard, and
(c) any other matters required to be taken into consideration by the Secretary before granting concurrence.
(6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if:
(a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or
(b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.
Note.
When this Plan was made it did not include all of these zones.
(7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3)."
The Applicant, through his planning expert Mr Layman, has made a written request (in Exhibit 4) pursuant to cl 4.6 (3) to reduce the size of proposed Lot 2 from the minimum of 1000m2 to 900m2. This reduction would not breach the limit set by cl 4.6 (6) (b).
Clearing of trees and vegetation is provided for by cl 5.9.
"5.9 Preservation of trees or vegetation
(1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.
(2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council.
Note. A development control plan may prescribe the trees or other vegetation to which this
clause applies by reference to species, size, location or other manner.
(3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:
(a) development consent, or
(b) a permit granted by the Council.
(4) The refusal by the Council to grant a permit to a person who has duly applied for the grant of the permit is taken for the purposes of the Act to be a refusal by the Council to grant consent for the carrying out of the activity for which a permit was sought.
(5) This clause does not apply to a tree or other vegetation that the Council is satisfied is dying or dead and is not required as the habitat of native fauna.
(6) This clause does not apply to a tree or other vegetation that the Council is satisfied is a risk to human life or property.
(7) A permit under this clause cannot allow any ringbarking, cutting down, topping, lopping, removal, injuring or destruction of a tree or other vegetation:
(a) that is or forms part of a heritage item or that is within a heritage conservation area, or
(b) that is or forms part of an Aboriginal object or that is within an Aboriginal place of heritage significance, unless the Council is satisfied that the proposed activity:
(c) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area, and
(d) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area."
The proposal involves the removal of a number of trees, several of which are not (cl 5.9 (2), trees to which clause 5.9 applies). The removal of trees to which cl 5.9 applies would be lawful if the application were granted development consent (cl 5.9 (3) (a)).
Clause 5.11 permits fuel reduction.
"5.11 Bush fire hazard reduction
Bush fire hazard reduction work authorised by the Rural Fires Act 1997may be carried out on any land without development consent.
Note.
The Rural Fires Act 1997also makes provision relating to the carrying out of development on bush fire prone land."
The site is mapped in its entirety on the Terrestrial Biodiversity Map as being Environmentally Sensitive Land to which cl 6.5 applies:
"Clause 6.5
6.5 Environmentally sensitive land - terrestrial biodiversity
(1) The objective of this clause is to maintain terrestrial biodiversity by:
(a) protecting native fauna and flora, and
(b) protecting the ecological processes necessary for their continued existence, and
(c) encouraging the conservation and recovery of native fauna and flora and their habitats.
(2) This clause applies to land identified as "Environmentally Sensitive Land" on the Terrestrial Biodiversity Map.
(3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider:
(a) whether the development is likely to have:
(i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and
(ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and
(iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and
(iv) any adverse impact on the habitat elements providing connectivity on the land, and
(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
(4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that:
(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised - the development will be managed to mitigate that impact."
[10]
Disputed applicability of some clauses in Part 6 of the LEP
The parties differed as to whether a number of clauses in Part 6 of SSLEP 2015 applied to the subject site.
[11]
The watercourse
Protection of riparian land and watercourses is provided for by cl 6.7:
"6.7 Environmentally sensitive land - Riparian land and watercourses
(1) The objective of this clause is to protect and maintain the following:
(a) water quality within watercourses,
(b) the stability of the bed and banks of watercourses,
(c) aquatic and riparian habitats,
(d) ecological processes within watercourses and riparian areas.
(2) This clause applies to land identified as "Environmentally Sensitive Land" on the Riparian Lands and Watercourses Map.
(3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider:
(a) whether or not the development is likely to have any adverse impact on the following:
(i) the water quality and flows within the watercourse,
(ii) aquatic and riparian species, habitats and ecosystems of the watercourse,
(iii) the stability of the bed and banks of the watercourse,
(iv) the free passage of fish and other aquatic organisms within or along the watercourse,
(v) any future rehabilitation of the watercourse and riparian areas, and
(b) whether or not the development is likely to increase water extraction from the watercourse, and
(c) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
(4) Development consent must not be granted for development on land to which this
clause applies unless the consent authority is satisfied that:
(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised - the development will be managed to mitigate that impact."
[12]
Is there a watercourse on the site?
The dictionary to SSLEP 2015 provides definitions of four interrelated concepts:
"waterbody" means a waterbody (artificial) or waterbody (natural). "waterbody (natural)" or "natural waterbody" means a natural body of water, whether perennial or intermittent, fresh, brackish or saline, the course of which may have been artificially modified or diverted onto a new course, and includes a river, creek, stream, lake, lagoon, natural wetland, estuary, bay, inlet or tidal waters (including the sea). "watercourse" means any river, creek, stream or chain of ponds, whether artificially modified or not, in which water usually flows, either continuously or intermittently, in a defined bed or channel, but does not include a waterbody (artificial). "waterway" means the whole or any part of a watercourse, wetland, waterbody (artificial) or waterbody (natural)."
[13]
How is the drainage line along the south east boundary of the subject site to be classified, and in particular, does it satisfy the definition of watercourse?
Mr Palmer (submission 6(b)) argued that:
"the drainage line on the subject site is clearly not a river, stream or chain of ponds, and it is doubtful whether it could be considered to be a creek."
"Creek" and "stream" are not defined in the LEP and Mr Palmer did not explain why the feature could not be regarded as either a stream or creek.
Dictionaries do not provide assistance, but add further synonyms or partial synonyms such as brook, burn, rill and rivulet.
The second part of the definition of watercourse in SSLEP 2015 - "water usually flows either continuously or intermittently" is also of little assistance. Water flow is clearly not continuous in the feature, but how frequently flow must occur to be intermittent is not defined. I note that in Burke v Hawkesbury City Council [2001] NSWLEC 222 Sheahan J distinguished between an ephemeral stream, only flowing during and immediately after rain, and an intermittent stream which flows for a longer period of time. However, in practice the length of the flow period lies on a continuum and for any one flow event is likely to be affected by several factors. Ephemeral is not used as a term in SSLEP2015 to describe stream flow, so a distinction between ephemeral and intermittent does not assist in determining whether the drainage line is watercourse.
Mr Doret gave evidence that water flowed in the drainage line during times of rain in the catchment and the flow was dependent on rainfall intensity. On 22 March 2017 when the site inspection occurred there was water flowing in the feature. The day itself was dry but the preceding period had experienced heavy rain.
To assist his case that the feature was not a watercourse and hence did not engage cl 6.7 of SSLEP 2015 Mr Palmer cited the decision of the High Court of Australia in Knezovic v Shire of Swan-Guildford (1968) 18 CLR468 at 475 in which Barwick CJ stated:
"it is settled the watercourse consists of a stream with a bed, with banks, and water. At the flow of water in the stream is intermittent or seasonal will not prevent what would otherwise be a watercourse from being counted as such...It must, in my opinion, essentially be a stream and be sharply distinguished from mere drain or drainage depression in the contours of the land..."
At issue in Knezovic was whether the Shire Council had a right to enter the appellant's land to clear what was alleged to be a watercourse, pursuant to the Local Government Act 1960-1965 (WA). Watercourse was not defined in the Local Government Act but the majority determined that the definition in the Rights in Water and Irrigation Act 1914-1964 (WA) at s 2 "River, stream or creek in which water flows in a natural channel whether permanently or intermittently" should apply to the Local Government Act. The majority decided that the feature on Mr Knezovic's land was not a watercourse, although Kitto J reserved his opinion "as to the difference if any between a drain and watercourse".
Knezovic has been applied in several cases in New South Wales, as discussed by Taylor and Stokes (2005) Up the creek; what's wrong with the definition of a river in New South Wales? 22 EPLJ 193 at 198. They point to fundamental differences between the environment in Great Britain and that in Australia and question whether the application of European concepts and terminology assists the understanding and management of river ecosystems in Australia.
In Knezovic, the concern was over management of the drainage functions of the watercourse/drain. It was not a matter which involved planning or biodiversity issues, so whether it is applicable to the present matter might be questioned. In the current matter the drainage issues are provided for by the easement over the feature and the Joint Report of the Engineering Experts (Exhibit 7) concludes that there are no adverse impacts on drainage/hydrology.
The contours of the site (Exhibit 6, Appendix 8 Figure 8) indicate that the disputed feature is of natural origin, even though sections of it are heavily modified, and in my opinion it functions as a watercourse.
It is not necessary, however, for me to determine if the drainage line is appropriately classified because clause 6.7 (2) of SSLEP 2015 states that (2) This clause applies to land identified as "Environmentally Sensitive Land" on the Riparian Lands and Watercourses Map.
Sutherland Shire DCP 2015 deals with wetlands and waterways in chapter 39 where on page 4 it is states
"Wetlands, wetland buffer areas, waterways and riparian zones in Sutherland Shire have all been mapped and are shown on maps entitled "Wetlands and Waterways" which form part of this DCP. The objectives and controls in this section apply to all land identified on this map."
Terms used in SSDCP 2015 carry the same meaning as they do in SSLEP 2015 (DCP chapter 1: introduction: interpretation) thus waterway in SSDCP 2015 means the same as waterway in SSLEP 2015 where the definition includes all watercourses. The drainage line is not mapped as a separate entity on the Wetlands and Waterways map in SSDCP 2015.
A riparian zone is marked on the map, covering the lower part of the site (from mean high water to approximately the Foreshore Building Line) but not extending further up the drainage line.
Mr Palmer argued persuasively that the mapped zone related to the foreshore of Gymea Bay and not to the drainage line.
Given that SSDCP 2015 has only recently come into force, the very definitive statement in relation to waterways that they "have all been mapped', and the absence of any explanation from the Respondent as to why the drainage line had not been mapped, I agree with Mr Palmer that SSLEP 2015 cl. 6.7 is not engaged in relation to the drainage line.
Mr Palmer also drew attention to the current (2015) 1: 25000 topographic map (Port Hacking) (Exhibit N) where the drainage line was not shown, even though it was shown as an intermittently flowing feature in the previous edition of the topographic map employed by Mr Doret (the Respondent's environmental expert) (In Exhibit 6, Appendix 8, Figure 2). I attach no weight to the recognition of the drainage line as a watercourse in one edition of a map and its absence in another. In Maule v Liporini and anor [2002] NSWLEC 25 the existence or absence of a river for the purposes of the Rivers and Foreshores Improvement Act 1948 was contested. Lloyd J observed at [79]:
"neither do I regard the fact that a river is shown on the land on the topographical map as being conclusive. The criteria used by the Land Information Centre for determining the presence of a river may be different from that which is employed under the Rivers and Foreshore Improvement Act."
The absence of depiction of a watercourse on a map is also inconclusive as evidence for absence on the ground; the criteria for recognising the existence of a watercourse for a planning purpose may also differ from those employed for the compilation of general-purpose maps.
That the drainage line is not a watercourse for the purpose of engaging SSLEP 2015 cl 6.7 does not mean that consideration of any environmental values of the drainage line is not required. Consideration under SSLEP 2015 cl 1.2 (g) is still required. (Aquatic flora and fauna within the drainage line would not be covered by cl 6.5 which deals with terrestrial biodiversity).
Mr Palmer invited me (submission 6(o)):
"to be satisfied on the evidence of Mr Stricker [ the Applicant's environmental expert] that any fauna utilising the drainage depression would not be impacted by the proposed development and would simply move elsewhere on the site closer to the bay and that there is little of value in terms of flora along the drainage depression, the drainage depression being largely weed infested, as agreed by Mr Doret."
I do not regard Mr Stricker's expression of an opinion to be persuasive. There is no documented information as to the composition of the faunal community currently using the drainage line (or, indeed, any other similar feature in the general area) referred to by the experts. I am not aware of a place 'elsewhere' on the site providing similar habitat conditions for any displaced fauna, but my understanding of what Mr Stricker said during the conjoint evidence was that the fauna (and I took him to be referring primarily to the invertebrate fauna) that might be washed out of the drainage line during high flow but could recolonise.
Accepting the agreed position of the Engineering experts (Exhibit 7) that the hydrological regime will remain essentially unchanged, then in terms of the consequences of flooding there would be no change on the conditions that invertebrates would experience. Some of them survive high flow periods by being attached on or under the rocks and pebbles, while others might be carried downstream but could subsequently recolonise.
A possible environmental impact of the proposal could arise from the changed shade regime for that section of the drainage line underneath the carriageway. Currently this section is shaded by vegetation, which provides for dappled shade, changing at the small spatial scale over space and time, but if the carriageway were built the regime would be uniform and unchanging.
Given that other sections of the drainage line would be unaffected by shade from the carriageway I would accept that even if there were an effect on the fauna under the carriageway this would not be sufficient to warrant refusal.
Mr Stricker also provided anecdotal information about the presence of water dragons (Itellagama leseurii ssp.lesuerii) along the drainage line. There was no information as to population size or how the drainage line compared as water dragon habitat to other areas of the site and adjacent areas. There was also no information on how any water dragons present would be affected during and after construction of the carriageway.
The drainage line has a high incidence of weeds, as was seen on the site inspection and shown on the photograph on Folio 48 of Exhibit 2 and in Exhibit 8. However, the level of degradation is not irreversible. Enhancement, recovery or rehabilitation of the environment as an objective of SSLEP 2015 is referred to in for example cl 1.2 (f) and (g) and cl 6.5 (b) (c), cl 6.8 (1) and 6.9 (1) (d). A programme of bush regeneration involving weed removal would be a means of addressing the issue
[14]
Is cl 6.8 of SSLEP 2015 relevant?
"6.8 Environmentally sensitive land--environmental and scenic qualities of natural landforms
(1) The objectives of this clause are to protect and enhance the environmental and scenic qualities of natural landforms, including rock outcrops, cliffs, beaches and rock platforms.
(2) This clause applies to all land identified as "Environmentally Sensitive Land" on the Natural Landforms Map .
(3) In determining whether to grant development consent for development on land to which this clause applies, the consent authority must consider whether the development is likely to have any adverse impact on the environmental and scenic qualities of natural landforms.
(4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the development:
(a) is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be avoided by adopting feasible alternatives--the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised--the development will be managed to mitigate that impact."
Rock outcrops are a major feature of the site. Nevertheless, the Natural Landforms Map does not identify the site as Environmentally Sensitive Land.
(Part of SSLEP 2015, Natural Landforms Map, Sheet LFM _001F (Exhibit M, behind Tab 1))
No explanation was proffered by the Respondent as to why the site was not mapped as Environmentally Sensitive Land of the Landforms Map. No features of the site were pointed out during the site inspection which would indicate that the landforms were of a different nature or of a lower value than those on adjacent lots.
However, given that the maps are recent, and interpretation of cl 6.8 is clear, I concur with Mr Palmer (submissions 17) that the site does not engage cl 6.8.
The rock outcrops on the site are a prominent feature of the landscape and provide habitat for a range of moss and lichen species (visible in Exhibit 3 Folio 49), and for a number of reptile species referred to briefly by Mr Stricker. Although cl 6.8 does not apply, consideration of rock outcrops as a feature of the site is appropriate given the aims SSLEP2015 cl 1.2(a). (b) and (g) and is relevant to addressing the objectives of Zone E3.
Bush rock removal is a Key Threatening Process (KTP) which was listed under the Threatened Species Conservation Act 1995, and is now similarly listed under the Biodiversity Conservation Act 2016 (The listing was briefly mentioned by the environmental experts in Exhibit 6).
Bushrock removal in the determination for the KTP does not include removal of rock as a result of approved activities or where development consent has been granted. Bushrock removal was listed in recognition of it being a threat to a number of species of both flora and fauna for which bushrock is habitat, and which may threaten a range of other species if it continues. If approval is granted for the current proposal, and, in the future, for any subsequent building, any removal of rock would be lawful. In making a decision as to whether to grant consent the consent authority could nevertheless take into consideration the habitat values which might be affected.
The Respondent, particularly in the Joint Report of the Planning Experts (Exhibit 4) and in the conjoint oral evidence, expressed particular concerns about the consequences for rock outcrops of building in Lot 3. Amongst the concerns of residents was the potential for disturbance from noise during construction occasioned by cutting and removal of rock.
The Applicant's position was that there would be negligible cutting of rocks as construction of a building on Lot 3 would be by the pier and beam technique so that the building would be above the rock and would not require cutting of the rock as no slab was involved. Mr Palmer (submission 7(o) argued the evidence was that any future development of the land can be carried out in such a way as to sensitively respond to, and work around, these rock outcrops.
Given the overall height limit for a building of 8.5 m, detail of the particular rock involved would be needed to determine what the clearance above the rock would be while still permitting a two-storey building not to exceed the height limit.
Mr Palmer's opinion (submission 7(e)) is that a rock outcrop would:
"still be visible, appreciated as part of the scenic quality of the land and furthermore there will remain numerous outcrops on the site, including rock outcrops in the vicinity of the foreshore building line, which will not be interfered with at all."
Without knowing the clearance and orientation of the building is not possible to determine the future appreciation of such a rock outcrop. The consequences of being under a building for the microclimate and hence habitat quality of the outcrop, were not matters discussed by the ecological experts.
Even if a building were above a rock outcrop, Mr Palmer submits that there would be many other outcrops which will not be affected. This is the case; the question is whether there is sufficient information about the rock outcrops to assess the impacts on any particular outcrops and whether approval would set a precedent for applications elsewhere, thus leading to a death by a thousand cuts scenario.
[15]
Foreshore
Two clauses in SSLEP 2015 relate to development near tidal water bodies: clauses 6.9 and 6.10.
"Limited development on foreshore area
6.9 Limited development on foreshore area
(1) The objectives of this clause are as follows:
(a) to ensure that development on the foreshore area will not adversely impact on natural foreshore processes or affect the significance and amenity of the area,
(b) to maintain and improve public access to the intertidal area of waterfronts if that access will cause minimal adverse environmental impact,
(c) to avoid adverse ecological effects on waterways by minimising any adverse impact from development on water quality and, so far as is practicable, to improve the quality of urban run-off entering waterways,
(d) to protect and enhance significant natural features and vegetation on the foreshore area,
(e) to retain endemic vegetation along foreshore areas,
(f) to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat,
(g) to minimise any adverse visual impact of development when viewed from adjacent land and waterways by using a design and materials that complement the natural landscape of the foreshore area,
(h) to minimise any adverse impact of development on the natural landform of the foreshore area and waterways by integrating the development with minimal change to the natural topography of the foreshore area,
(i) to achieve a balance between private development and the public use of waterways,
(j) to minimise the obstruction of water views from public land.
(2) Development consent must not be granted for development on the foreshore area except for the following:
(a) the alteration, extension or rebuilding of an existing dwelling wholly or partly on the foreshore area if the footprint of the extension or alteration will not extend any further forward of the foreshore building line than the footprint of the existing dwelling,
(b) the erection of a new dwelling on the foreshore area if there is no reasonable alternative that would allow a new dwelling to be located outside of the foreshore area,
(c) development for the following purposes that does not significantly alter the shape, natural form or drainage of the foreshore area:
(i) boat sheds,
(ii) jetties,
(iii) landscaped areas,
(iv) sea retaining walls,
(v) slipways,
(vi) swimming pools (that are no higher than 300 millimetres above ground level),
(vii) water recreation structures,
(viii) waterway access stairs,
(ix) inclinators,
(d) the erection of a building on the foreshore area (other than a building referred to in paragraph (a), (b) or (c)), if the levels, depth or other exceptional features of the site make it appropriate to do so.
(3) Development consent must not be granted under this clause, unless the consent authority is satisfied that:
(a) the appearance of the development, from both the foreshore area and the adjacent waterway, will be compatible with the surrounding area, and
(b) the development will not cause environmental harm such as:
(i) pollution or siltation of the waterway, or
(ii) an adverse effect on surrounding uses, marine habitat, wetland areas or fauna and flora habitats, or
(iii) an adverse effect on drainage patterns, and
(c) the natural qualities of the foreshore area are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, and
(d) the development will not cause congestion or generate conflict between people using open space areas or the waterway, and
(e) opportunities to provide continuous public access along the foreshore area and to the waterway will not be compromised, and
(f) any heritage significance of the foreshore area on which the development is to be carried out and of surrounding land will be maintained, and
(g) in the case of development for the alteration, extension or rebuilding of an existing building (or the erection of a new building) wholly or partly in the foreshore area, the alteration, rebuilding or new building will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and
(h) in the case of the erection of a new dwelling, the dwelling will not be erected further forward of the foreshore building line than any existing dwelling on the land, and
(i) it has considered sea level rise or change of flooding patterns as a result of climate change.
(4) In deciding whether to grant development consent for development on the foreshore area, the consent authority must consider whether and to what extent the development would facilitate the following:
(a) continuous public access to and along the foreshore area through or adjacent to the proposed development,
(b) public access to link with existing or proposed open space,
(c) public access to be secured by appropriate covenants, agreements or other instruments registered on the title to land,
(d) public access to be located above the mean high water mark,
(e) reinforcement of the foreshore character and respect for existing environmental conditions,
(f) management of any rise in sea level or change of flooding patterns as a result of climate change."
This clause applies to foreshore areas and this term has a specific meaning in the dictionary to SSLEP 2015 - being land between the foreshore building line and the mean high watermark of the nearest bay or river.
Part of proposed Lot 3 is below the FBL. Development of a dwelling on Lot 3 could not occur below the FBL but cl 6.9 (2) (c) could permit, with consent, construction of a number of structures including swimming pools below the line, although the consent authority would need to be satisfied in regard to those matters specified in cl 6.9 (3). The objectives of cl 6.9 include 6.9 (1) (a), ( e) and (h) requiring protection of natural features and vegetation.
Mr Palmer (submission 8 (b)) argued that the Court was entitled to infer that foreshore in cl 6.10 had the same meaning as in cl 6.9. This might be so if the single word 'foreshore' appeared unqualified in both clauses, but that is not the case. In cl 6.9, foreshore always occurs in the phrase 'foreshore area'. Clause 6.10 refers to foreshore and foreshore environment but does not mention foreshore area. Neither foreshore or foreshore area are included in the dictionary to SSLEP 2015.
The objectives of clause 6.10 are:
"6.10 Development on the foreshores of Port Hacking, Georges River, Woronora River and Port Botany
(1) The objectives of this clause are as follows:
(a) to provide for the protection of the foreshore environment of the Georges River, Woronora River, Port Botany and those areas of Port Hacking that are not part of the coastal zone for the benefit of both present and future generations,
(b) to protect, enhance, maintain and restore the foreshore environment, its associated ecosystems, ecological processes and biological diversity and its water quality,
(c) to protect and preserve the natural, cultural, recreational and economic attributes of the foreshores,
(d) to provide opportunities for public pedestrian access to and along the foreshores,
(e) to recognise and accommodate ecological processes and climate change,
(f) to protect amenity and scenic quality,
(g) to protect and preserve rock platforms, beach environments and beach amenity,
(h) to protect and preserve native foreshore vegetation,
(i) to protect and preserve the aquatic environment,
(j) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area,
(k) to ensure that decisions in relation to development involve consideration of the broader and cumulative adverse impacts of the development on the catchment.
(2) This clause applies to land identified as "Foreshore" on the Foreshores of Port Hacking, Georges River, Woronora River and Botany Bay Map.
(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered the following:
(a) existing public access to and along the foreshore for pedestrians (including persons with a disability) with a view to:
(i) maintaining existing public access and, where possible, improving that access, and
(ii) identifying opportunities for new public access,
(b) the suitability of the development, its relationship with the surrounding area and its impact on the natural scenic quality, taking into account:
(i) the type of development concerned and any associated land uses or activities (including compatibility of any land-based and water-based activities), and
(ii) the location, and
(iii) the bulk, scale, size and overall built form design of any building or work involved,
(c) the impact of the development on the amenity of the foreshore, including:
(i) any significant overshadowing of the foreshore, and
(ii) any loss of views from a public place to the foreshore,
(d) how the visual amenity and scenic qualities of the foreshores can be protected,
(e) how biodiversity and ecosystems, including the following, can be conserved:
(i) native vegetation and existing wildlife corridors,
(ii) rock platforms,
(iii) water quality of waterbodies,
(iv) native fauna and native flora, and their habitats,
(f) the effect of ecological processes and ecological hazards and potential impacts, including sea level rise:
(i) on the development, and
(ii) arising from the development,
(g) the cumulative impacts of the development and other development on the catchment."
Clause 6.10 (2) states the cl 6.10 applies to land identified on the Foreshores of Port Hacking, Georges River, Woronora River and Botany Bay. This map appears in Exhibit M. Foreshore on this map extends to Wonga Road and includes the entire area of 24 - 26 Wonga Road. The foreshore in cl 6.10 thus extends beyond the foreshore area in clause 6.9.
The matters which the consent authority must consider are given in cl 6.10 (3).
Those matters in clauses 6.9 and 6.10 relating to access along the foreshore, protection of rock platforms and estuarine biota are not relevant to the current proposal.
[16]
Conclusions regarding contested clauses
I find SSLEP cl 6.7 does not apply to the drainage line on the south east border of the subject land and that cl 6.8 does not apply to rock outcrops on 24-26 Wonga Road. However, the drainage line and rock outcrops have environmental significance which is relevant to assessment of the application. Clause 6.9 and cl. 6.10 apply to overlapping parts of the subject land.
[17]
Expert evidence
Concurrent evidence was provided by expert witnesses in the following areas:
Issue. For applicant For respondent Exhibit no.
Planning Stephen Layman Slavco Bujaroski. 4
Bushfire Wayne Tucker. Debbie Pinfold. 5
Environmental Peter Stricker. Geoff Doret. 6
[18]
Planning
Mr Layman is a consultant town planner and Mr Bujaroski is Development Assessment Officer for the Respondent. Both experts are also registered architects.
The Joint Experts Report of the planning experts (Exhibit 4), and the concurrent evidence given by the experts both had a strong focus on the cl 4.6 variation request to cl 4.1 (3A) SSLEP 2015 (Annexure B to Exhibit 4), which will be discussed separately.
Proposed Lot 3 and its possible future development were matters of considerable disagreement between the experts, although they agreed that the lot was environmentally sensitive. The experts agreed that although the lot was large and the permissible floorspace ratio would theoretically allow a large building, in practice constraints imposed by the foreshore building line, environmental features of the part of the lot above the FBL and required setbacks would result in a building smaller than the theoretically possible maximum.
Mr Bujaroski prepared a table of developments on other waterfront lots between 2014 and 2016 (Annexure C, Exhibit 4) comparing lot size with achieved gross floor area, floor space ratio and building footprint. These data show considerable variation, and no clear relationship between the variables. Within the table, development applications for waterfront land on Wonga Road were highlighted, two of these (the subject land at 24 - 26 Wonga Road and 44 Wonga Road had not been determined, the other two lots had yielded smaller developments than others in the table with FSRs smaller than those elsewhere, although it is notable there is only one development elsewhere on a lot markedly larger than those in Wonga Road, and apart from that all the rest were much smaller than any of the Wonga Road lots.
Mr Bujaroski suggested that the data in Annexure C demonstrated that the proposed building footprint for 24 - 26 Wonga Road is more consistent with lot sizes in the range 550 - 900 m².
Mr Layman stressed that the indicative floor plan in drawings SK03 and SK04 showed (Exhibit 4 at 2.8) that reasonable sized dwellings are capable of fitting into the proposed lot while responding to site constraints, and, (Exhibit 4 at 3.9) the designs of dwellings designs on the subject site will be the subject of future development applications which will have to comply with the planning controls applicable when the application is lodged and will give valid justification for any variations in the standards. Future dwellings are not part of the current proposal.
Mr Layman considered that for the data in Annexure C, the examination of approved development for dwellings on waterfront land is of limited utility. Each site has its own, usually unique, constraints such as width, shape, tree cover, rock outcrops and topography. Each development proposed will be determined on its merits having regard to the relevant planning controls at the time of the assessment.
Mr Bujaroski suggested that the indicative building designs were unrealistic in terms of the likely expectations of future purchasers of large waterfront lots. Mr Palmer (submission 12) regarded the Respondent's concerns about the pressure from some possible future applicant for a dwelling larger than permitted by the applicable standards and contemplated by Mr Layman as being ill founded, as Council has the ability to reject any such proposals. He also stressed that the restrictive covenant proposed for Lot 3, restricting the location and size of any building footprint, was in favour of Council so any applicant proposing a building which did not conform to the requirements of the covenant had the onus of persuading Council that the proposal was environmentally acceptable.
The Planning experts took strongly opposing views as to the impacts and acceptability of the elevated driveway. These views will be discussed, for convenience, with other matters related to the carriageway.
[19]
Bushfire
Mr Tucker and Ms Pinfold both have extensive experience in the field of planning for bushfire. Both recognise that vegetation of the site was fire prone.
(From Exhibit 3, behind Tab SEPP 2015)
In their joint report (Exhibit 5) and during their conjoint evidence, the experts maintained their different opinions on two important matters. These are the assessment of risk and the appropriate assumptions to be made for the purposes of determining the appropriate Asset Protection Zone.
A risk assessment for bushfire, as for any other type of risk assessment, involves two components - the likelihood of an event occurring, and the consequences if it were to occur.
Both experts agreed that the likelihood of bushfire was low. Where they differed was in terms of the consequences. Ms Pinfold considered the consequences could be catastrophic, language which Mr Palmer in examination regarded as exaggerated, although he conceded the consequences would be serious. The overall assessment of likely consequences led Ms Pinfold to place the risk in a high category.
The experts agreed (Exhibit 5 page 3) that an Asset Protection Zone (APZ) is required and that for Lot 3 the relevant APZ should be included, in addition to the indicative building footprint, as a restriction as to use on the s88B instrument.
If the Rural Fire Service APZ requirements are to be applied, a 20 m APZ can be established to the west of the indicative building envelope:
"without a requirement for further vegetation management on the adjoining property and an easement for maintenance of the APZ on the adjoining property is not necessary." (Exhibit 5, p 3).
The 25 m APZ extends 9-14 m below the Foreshore Building Line, with up to 4 m of the Inner Protection Area (IPA) being below the FBL and the whole of the 10 m Outer Protection Area (OPA) being below the FBL.
Trees number 23, 40 and 41A would be removed and the lowest limb of the western trunk branch of tree 24 would be pruned to create the IPA, trees number 36, 37, and 44 would be removed and cheese trees leaning into the subject land from the south-east would need to be pruned to create the OPA.
If the 11 m APZ recommended by Mr Tucker was applied the experts agree that an 11 m APZ could be established west of the indicative building envelopewithout further requirements on the adjoining property and the APZ would be entirely above the FBL. Trees 23 and 41a would need to be removed and tree 24 would require pruning to create the IPA.
The experts agreed that changes were needed to the Vegetation Management Plan (VMP) prepared by Mr Stricker (Exhibit H) These changes are incorporated in the draft conditions, and require the removal of Figure 6 and comments on page 25 of the VMP.
The differences between the experts' recommended APZ arise from their different interpretations of Appendix 2 at page 52 of Planning for Bush Fire Protection 2006 (PFBP 2006).
Ms Pinfold considered that the remnant bushland area on which to make the assessment covers 0.975 ha below Wonga Road - this is just below the maximum size of a remnant (1 ha) for the purposes of PBFP 2006. Based on aerial photos provided by Sutherland Shire Council, Ms Pinfold estimated that the effective slopes beyond the APZ were 10 - 15° to the west, greater than 18° to the south west, 18° to the west south west and 0.5° to the north-west with potential of fire runs over 100 m to the west, 80 m to the west south west, and 60 m to the south-west and 160 m from the north west (addendum 04 to Exhibit 5). Ms Pinfold considers that fires from the west south west would be more likely to directly impact on a building on the indicative site on proposed Lot 3 than those from the north west.
Mr Tucker considered that Ms Pinfold's analysis did not accord with the requirements of PBFP 2006. Based on his application of PBFP 2006 and from his experience as a bush firefighter he considered that an APZ of 11 m would provide adequate protection.
For a fire to occur there needs to be a source of ignition. Under extreme fire conditions there could be direct ember attack from a major fire in Royal National Park, causing ignition on the site. During the conjoint evidence reference was made to the 1994 bushfire when damage and loss of property in the suburbs of Como and Jannali occurred under such conditions. The other fire threat and the one central to the disagreement between the experts was of a fire ignited in the proximity to the site in adjacent bush. Such a fire might be caused accidentally or deliberately by humans. For such a fire what is critical is the most likely direction of approach and determining the length and slope of the fire run and consequently the size of the APZs required. The assessment of these parameters is according to the requirements of Planning for Bush Fire Protection 2006. Ms Pinfold reached a conclusion that an APZ of 25 m was required. This was also the position adopted by the Rural Fire Service. Mr Tucker on the other hand calculated the required APZ as 10 m which, for extra caution, he extended to 11 m. With the indicated building footprint for proposed Lot 3 the whole of the required APZ would be above the Foreshore Building Line. Ms Pinfold's position was that the APZ would extend below the Foreshore Building Line and to achieve the required protection there would need to be reduction in fuel load below the FBL.
[20]
Environmental
The Applicant's environmental expert was Mr Peter Stricker of ACS Environmental Pty Ltd, and the Respondent's expert was Mr Geoff Doret, Greenweb Officer for Sutherland Shire Council. Both experts have many years of experience of the vegetation and environment of the Sutherland Shire.
The experts agreed that the vegetation of Lot 3 and the lower part of Lot 2 was Coastal Enriched Sandstone Dry Forest and that the vegetation condition on Lot 3 was of good to high quality. This community is a tall open forest with an understorey of dry sclerophyll shrubs.
Mr Stricker (Exhibit 6, page 7) said the total mapped area of the community in the Sydney Metropolitan Catchment Area was 1741 ha of which 1223 ha occurred in National Parks and Reserves.
The experts agreed that the community:
"provides for significant habitat components by way of rock ledges & outcrops, boulders, crevices, a water course as well as natural vegetation. There are also numerous significant trees on site providing valuable resources as well as natural hollows for former habitation.
…
All these elements form essential habitat components for a wide array of fauna species including amphibians, birds, mammals, reptiles and invertebrates that would forage and nest in this environment." (Exhibit 6 page 4).
Mr Doret regards the loss of trees and elements of the lower storeys to be significant and will have detrimental impact on the available habitat for native fauna on the site (Exhibit 6 page 6) and that overall he:
"was of the opinion that this proposed subdivision (with future development) will result in an unacceptable loss of native trees and bushland (in all strata's(sic)) and described natural land formations, including the open water course, resulting in significant adverse impacts on the existing natural environment." (Exhibit 6, page 7)
Mr Stricker on the other hand regarded the loss of trees as not considered excessive for the proposal. He also considered the trees removed could be replanted under the requirements of the landscape plan.
Mr Stricker did not consider there would be a need to remove groundcover and understorey to satisfy the requirements for a 25 m APZ although acknowledging that leaf litter build up may require removal.
Mr Stricker considered that with pier and beam construction for the proposed building on Lot 3 there would be no damage to rock outcrops and that shelter for fauna would still be provided among the rocks although there may be:
"some compromise of current habitat due to ongoing human activity, noise, daytime shadowing and unnatural night light." (Exhibit 6, page 14).
For the site as a whole Mr Stricker stressed the high frequency of rock outcrops and that there would be:
"adequate exposed rock outcropping, not covered by any dwelling footprint that would be suitable for reptile behaviours such as basking and sheltering." (Exhibit 6, page 14).
Mr Doret believed that the open channel along the south-east site was a watercourse and that it performed many important ecological functions and that the proposed development would damage and leave very little of the remaining watercourse to provide any valuable ecological benefit. 'As such I believe it will have an unacceptable impact on the habitat value and biodiversity of the area and unnecessarily see the removal of much of this natural feature from the site' (Exhibit 6 page 18). Mr Stricker expressed the view that 'the open channel is a watercourse that follows the contours of the land drains partly across naturally occurring sandstone outcrops that appears to have been historically augmented by the use of retaining walls and sections of the banks and strategically placed stone slabs' (Exhibit 6 page 18) but later concluded (Exhibit 6 page 20) that he was of the opinion that, since extensive development of the locality along Wonga Road had occurred, the watercourse is no longer a natural feature of the landscape. The current augmented drainage channel periodically drains erratic flows of polluted water from upstream catchments, including contaminated surfaces such as the road, driveways and their hard surfaces through discharge drains and at times resulting in turbulent flows down the drainage channel.
The experts differed as to whether or not the proposed and possible future development met the objectives of cl 6.5 of its SSLEP 2015 and whether or not the considerations required by cl 6.5 (3) should result in rejection of the proposal and whether objectives of clauses 6.9 and 6.10 were met by the proposal.
The experts agreed that the subject land was mapped as Greenweb Core, and that the Greenweb strategy was a key component of the council's biodiversity conservation measures.
Mr Doret was of the view that the proposal did not achieve an appropriate balance between development opportunity and conservation of the natural environment and the objectives of SSLEP 2015, cls 6.5, 6.9, 6.10 were not met. Mr Doret was particularly concerned that cumulative impacts of individual decisions affecting Greenweb habitat would not be adequately addressed, citing the concerns raised by Commissioner Fakes in Hamilton v Sutherland Shire Council [2012] NSWLEC 1015. He also argued that the activities proposed encompassed at least in part three Key Threatening Processes, Bush rock Removal, Clearing of Native Vegetation and Loss of Hollow Bearing Tees - see also Appendix 3 Exhibit 6.
Mr Stricker argued that environmental protections would be applied to the proposal and that there is the capacity to achieve a balance between development and the conservation of the natural environment.
He stated that the proposed actions would protect much of the commonly occurring native fauna and flora at the property, and it is expected they maintain the protection of the ecological processes necessary for their continuing existence and as such continue to retain the conservation and recovery values of native fauna and flora or their habitats
[21]
The Carriageway
The engineering experts in their joint report (Exhibit 7) resolved the contentions as to details of design and construction.
However, concerns about the size and other impacts of the carriageway remained.
The Planning Experts held divergent opinions.
Mr Bujaroski's view (in Exhibit 4 at 4.4.19 and 4.4.20) is that:
"The proposed structure is completely foreign to the sensitive landscape setting of the site and to the context of surrounding development. It is of a scale that would not be reasonably expected for an ancillary structure, particularly in the most environmentally sensitive zone where housing is permissible. It is more akin to an overpass than one would expect in infrastructure zone'.
'The elevated driveway would be visually dominant and have an adverse visual impact on the subject site and on adjoining property to the south-east. It would be highly visible from the adjoining property at 5 Cliff Haven Place as well as from both lot 2 and lot 3. It has not been designed to sensitively relate to its context."
Mr Layman was of the view (4.4.3) that:
"any visual impact of the driveway is ameliorated by landscaping and fencing"
He stressed (Exhibit 4 at 4.8) that:
"in his view the driveway structure occurs on a disturbed part of the subject site which is altered from its natural state by structures and fill within its bed and by walls at its edges".
In order to soften the visual impact, the Respondent proposed a condition, which is accepted by the Applicant, that the concrete mix used should contain black oxide. The effect would be that the colour of the carriageway would be a weathered grey, somewhat resembling the natural rock on the site.
The only neighbour likely to experience impacts from the carriageway is at 5 Cliff Haven Place. Mrs Spink was concerned by the proximity of the carriageway to her house. Mr Palmer argued that the degree of shading experienced as a result of the carriageway construction would be little different from that currently occurring. While recognising that there is dense vegetation close to the boundary there was no evidence in the form of shadow diagrams of any possible impacts on shade or qualitative analysis of the difference between dappled and changing shade and shade from a fixed structure.
Above the edge of the carriageway would be a safety barrier and balustrade, adding in total metres of the total height of the structure. The conditions proposed by the respondent would require that the balustrade be painted a recessive dark colour.
The heights quoted on plans for levels on the proposed structure are heights above the bed of the creek and not above the level of the clothes line platform, but nevertheless parts of the structure would be at levels higher than the platform.
In considering impacts on a neighbour the planning principle enunciated by Moore SC (as his Honour then was) in Davies v Penrith City Council [2013] NSWLEC 1141 at [121] is of some assistance, although this is limited by paucity of data. The principle states:
"Revised planning principle: criteria for assessing impact on neighbouring properties
The following questions are relevant to the assessment of impacts on neighbouring properties:
•How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?
•How reasonable is the proposal causing the impact?
•How vulnerable to the impact is the property receiving the impact?
•Would it require the loss of reasonable development potential to avoid the impact?
•Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours?
•Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?"
For the first dot point there are no data, but opposing statements of opinion on the impacts. The carriageway as proposed is reasonable (second dot point) in the sense that there is little option, given the nature and constraints of the site, to relocate the carriageway for a three lot subdivision further away from Cliff Haven Place. To the extent that there is an impact on 5 Cliff Haven Place the issue then becomes whether the nature of the impact is sufficient to require the loss of reasonable development potential (third dot point) on 24-26 Wonga Road. In itself I consider that the impact would not cross the threshold of requiring refusal. The last two dots points are not relevant in this case.
A further issue is what if any visual screening should be required between Mrs Spink's property and the carriageway. There is a very narrow gap of 0.57 metres between the property boundary and the edge of the carriageway. Three suggestions had been made. The first was planting of small tree species such as Syzygium in the gap. Soil conditions for planting are less than ideal and Mr Stricker and Mr Doret were in agreement that the prospects for success were limited. An alternative proposed was planting native climbers supported by wires or a trellis. Mr Stricker suggested that Wonga Vine (Pandorea pandorana) was one of a number of possible suitable species. This concept was being developed on the run during the concurrent evidence and little detail is available to assess its likely success. The third proposal shown on some diagrams was for a solid fence. If a fence were constructed both of the planting options would be ruled out. Mrs Spink spoke strongly against installation of a fence which she thought would be visually obtrusive and add to the impression of bulk of the carriageway.
If the proposal were to be approved the treatment of the boundary would require resolution. I agree that planting trees is unlikely to be successful, and I agree with Mrs Spink that fencing is undesirable and should not be installed. If approval were to be given to construct the elevated carriageway then the choices for the boundary treatment would be 'do nothing' or planting of vines- but details of design and planting would need to be developed and incorporated in conditions.
[22]
The Bushfire Issue
The proposed subdivision is development which requires a bushfire safety authority pursuant to 100B of the Rural Fires Act 1997. This requirement means that the proposed development is integrated development (s 91(1) of the EP&A Act).
Integrated development permits the applicant to make a single application to the consent authority, and for the authority to consult with the relevant approval body, in this case the Rural Fire Service (RFS), and if the approval body issues General Terms of Approval (GTAs) then these are incorporated within a single set of conditions issued by the consent authority if it were otherwise the mind to grant consent.
However, when the Court is standing in the shoes of Council, s 39(6A) of the Land and Environment Court Act enables the Court to determine a development application for an integrated development proposal whether or not another approval body has issued GTAs and is not bound to refuse an application if an approval from the approval body has not been obtained. The Court can determine an appeal even if the development consent granted is inconsistent with the GTAs of the approval body.
Hymak Pty Ltd & anor v Wyong Shire Council [2015] NSWLEC1546 involved an application for subdivision, which was resolved after a conciliation conference, with agreement between the parties under s 34(3) of the Land and Environment Court Act. The Court noted that General Terms of Approval had not been received from the RFS. Despite the lack of GTAs the Court accepted that in the circumstances of the case, the agreement and associated conditions represented a decision that could have been made by the Court in the exercise of its functions (see Order 3 in Hymak).
The Court is able to reach a decision in the absence of, or contrary, to GTAs issued by an approval body: the question for the Court is whether in the circumstances of an individual case it is appropriate to do so.
In this case there was dispute as to whether the RFS had issued General Terms of Approval.
After receipt of the development application, the respondent referred the matter to the NSW RFS, seeking GTAs on 15 April 2016. The RFS carried out an inspection and replied on 2 May 2016 (Exhibit 3 at Folio 89). The RFS sought additional information but also provided indications of the size of any required APZ. Subsequently there were further inspections by RFS officers in September, October and November 2016.
Subsequent to the refusal by the respondent of the development application and the commencement of the s34 conciliation, the respondent again communicated with RFS. The response from the RFS on 1 June 2017 (Exhibit 3 at Folio 84 and 85) again indicated that the applicant had not provided certain information, but stated that the "NSW RFS would raise no objection to the approval of the subdivision subject to the numbered conditions below." Six conditions were included as well as an advisory note regarding appropriate boundary fence construction.
Following further correspondence from council on 7 August 2017 the RFS again replied on 10 August and stated the "NSW RFS would raise no objection to the approval of the subdivision subject to the following conditions" following which appeared five conditions (Exhibit 3 folio 125 and 126).
On 31 August 2017 the Respondent's Principal Environmental Lawyer (Ms Amy) emailed the RFS (Exhibit 3 Folio 126B) seeking advice as to whether the RFS advice already offered constituted the GTA's. Mr Maslen of the RFS responded by email on 1 September 2017 (exhibit 3 Folio 126 A) stating "subject to the parties being satisfied that the land is managed, the NSW RFS General Terms of Approval would be as set out in its letter dated 10 August 2017 and copied below"
Mr Palmer submitted (submission 3 (c)) that the letter of 10 August and the subsequent email do not give approval and (submission 3(b)) the Court cannot be satisfied that it has GTAs from the RFS.
Mr Palmer further pointed out (submission3 (g)) that the RFS had not given evidence which would have allowed the testing of any opinions expressed in the correspondence, and that the RFS had refused to meet Mr Tucker (although the nature of any request was not in evidence). Mr Palmer submitted that the Court is entitled to draw the inference that the RFS would not have assisted the Council's case if called and that (submission 3 (i)):
"The RFS correspondence can only be admissible as a business record of the RFS's response to certain enquiries of the Council It is otherwise hearsay and, to the extent that it expresses an opinion of the RFS or its officers, that opinion is inadmissible without the officers present and available to be tested."
He also submitted (submission 39(j)):
"To the extent that the Court might have regard to that correspondence, it should be given very limited weight."
Although the Applicant argues that little weight should be attached to the contents of RFS officers' correspondence with the Respondent, the concerns expressed by the RFS were consistent over an extended period. The Respondent took the RFS concerns into account in reaching its conclusion.
I note that in its letter of 1 June 2017 (Exhibit 3, folio 84 and 85) that Nika Fomin, Manager, Planning and Environment Services (East) of the RFS, advised that:
"While Planning for Bush Fire Protection 2006 states that the effective slope should be taken across the length of the hazard, an assessment of the slope in all directions is still required to determine the' worst case scenario' for a potential fire. In this instance the slope has been assessed to the south-west, the west and the north-west. It was determined that classifying the vegetation as a remnant a 25 m Asset Protection Zone (APZ) is required to the south-west, a 20 m a APZ is required to the West, and a 10 m a APZ is required to the north-west to ensure a dwelling on proposed Lot 3 could achieve compliance with Planning for Bush Fire Protection 2006.
While the vegetation has been assessed using the provisions outlined on page 52 Planning for Bush Fire Protection 2006 as remnant, the vegetation class present is dry sclerophyll forest. For this reason any asset protection zone could comprise both an Inner Protection Area (IPA) and an Outer Protection Area (OPA) in accordance with table A 2.7 in Planning for Bush Fire Protection 2006."
Mr Pinfold (exhibit 5) had carried out an assessment of the slope in all directions. However, in the joint report (Exhibit 5, page 3) Ms Pinfold agreed with Mr Tucker that further vegetation management was not required on the adjoining property to the west and that an easement for maintenance on the adjoining property was not required.
The RFS in its correspondence expressed concern that the land on 28 Wonga Road was not being managed to an APZ standard. Nevertheless, in their letter of 10 August 2017 the RFS took the position that
"subject to it being determined that an Asset Protection Zone is provided for a distance of at least 20 m to the west of the maximum building footprint proposed on Lot 3, the NSW RFS would raise no objection to the approval of the subdivision subject to the following conditions."
The phrase 'subject to it being determined' does not make clear by whom the determination was to be made. However, the experts in their joint report are satisfied that the matter is addressed, so the remaining matters are those which the RFS seeks to have included in the conditions, and these provide the basis for the Respondent's proposed conditions relating to the APZ.
Mr Tucker expresses the view that in its correspondence, the RFS has gone beyond the literal interpretation of PFBP 2006 and this is impermissible. His interpretation of PFPB 2006 results in smaller APZ for proposed Lot 3, entirely above the Foreshore Building Line. Further Mr Tucker pointed out that the RFS has not issued any formal amendments to PFBP 2006 which would have supported its interpretation of the assessment requirements.
Planning for Bush Fire Protection 2006 is not included amongst the categories of document which are listed as Environmental Planning Instruments on the NSW Planning and Environment Portal (accessed on 18 October 2017), but it is given statutory effect by cl 44 of the Rural Fires Regulation 2008:
"44 Application for bush fire safety authority
(1) For the purposes of section 100B (4) of the Act, an application for a bush fire safety authority must be made in writing and must include the following:
(a) a description (including the address) of the property on which the development the subject of the application is proposed to be carried out,
(b) a classification of the vegetation on and surrounding the property (out to a distance of 140 metres from the boundaries of the property) in accordance with the system for classification of vegetation contained in Planning for Bush Fire Protection,
(c) an assessment of the slope of the land on and surrounding the property (out to a distance of 100 metres from the boundaries of the property),
(d) identification of any significant environmental features on the property,
(e) the details of any threatened species, population or ecological community identified under the Threatened Species Conservation Act 1995 that is known to the applicant to exist on the property,
(f) the details and location of any Aboriginal object (within the meaning of the National Parks and Wildlife Act 1974) or Aboriginal place (within the meaning of that Act) that is known to the applicant to be situated on the property,
(g) a bush fire assessment for the proposed development (including the methodology used in the assessment) that addresses the following matters:
(i) the extent to which the development is to provide for setbacks, including asset protection zones,
(ii) the siting and adequacy of water supplies for fire fighting,
(iii) the capacity of public roads in the vicinity to handle increased volumes of traffic in the event of a bush fire emergency,
(iv) whether or not public roads in the vicinity that link with the fire trail network have two-way access,
(v) the adequacy of arrangements for access to and egress from the development site for the purposes of an emergency response,
(vi) the adequacy of bush fire maintenance plans and fire emergency procedures for the development site,
(vii) the construction standards to be used for building elements in the development,
(viii) the adequacy of sprinkler systems and other fire protection measures to be incorporated into the development,
(h) an assessment of the extent to which the proposed development conforms with or deviates from the standards, specific objectives and performance criteria set out in Chapter 4 (Performance Based Controls) of Planning for Bush Fire Protection."
Mr Palmer (submission 3(o)) referred me to Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council 1984 53 LGRA 322 at 323, wherein Cripps J said:
"I adopt, with respect, the observation of Lord Reid in Gill v. Donald
Humberstone & Co Ltd [1963] I W.L.R. 929 at 933, 934 that when
interpreting delegated legislation, the court ought be concerned with practical
considerations rather than construing it by meticulous comparison of the
language of the various provisions such as might be appropriate in construing
sections of an Act of Parliament and that if that language is capable of more
than one interpretation, a court ought discard the more natural meaning if it
leads to an unreasonable result, and adopt that interpretation which leads to a
reasonably practical result. That observation was adopted by Murphy J in
Driscoll v. J Scott Pty Ltd (1976) 50 A.L.J.R. 528 at 531 when dealing with
regulations made under the Inspection of Scaffolding Acts 1915 (Q.)."
In the present matter Mr Palmer urges me not to accept Ms Pinfold's interpretation of length of the vegetated remnant as being something most people would normally regard as width and argues that such an approach would only be permissible if the 'more natural meaning leads to an unreasonable approach'. However, Ms Pinfold's approach accords with that suggested by RFS.
But in this case the parties are differing not so much over the delegated legislation itself but over the apparent importation into PFBP 2006 of additional assessment requirements. I accept, however, the importance of discerning the purpose of delegated legislation, which in this case is the promotion of, as far as possible, protection of human life and property in the event of bushfires.
The Applicant also stressed the formal absence of issued GTAs by the RFS. There is no document which lays out requirements under the heading of GTAs. However, the wording of the correspondence between the RFS and Council, in my view clearly indicates the conditions that the RFS wished to see imposed and that these would be reflected in any GTAs.
The reason why there was reluctance by RFS to commit to GTAs is not clear, and Ms Amy's email of 31 August 2017 (Exhibit 3 at Folio 126B) did not elicit the requested clarification. The Respondent did not take the step of calling RFS to give evidence - and if this had been done it is possible that the absence of GTAs would been explained.
Even if the RFS correspondence is not to be taken as including implicit GTAs, the absence of GTAs does not prevent the Court from making its own decision (s 39 (6A) Land and Environment Court Act 1979). In reaching a decision I have had regard to the evidence of the two experts (Exhibit 5), the correspondence between RFS and the Respondent, and my own observations made on the site inspection.
In the letter of 1 June 2017, the RFS indicated that there was need to determine the 'worst case scenario'. This suggests that a precautionary approach to setting requirements is desirable.
Given that the purpose of requirements for an APZ is to protect life and property I find that the more conservative approach of the 25 m APZ supported by Ms Pinfold is preferable to the 11 m APZ supported by Mr Tucker, and also note that Ms Penfold's position is supportive of the RFS conclusion which it must be remembered was assisted by number of inspections of the site.
What are the consequences of adopting the 25 m APZ rather than 11 m? In terms of trees to be removed to attain the required canopy separation the difference was that the 25 m APZ would require removal of four extra trees. In addition to removal of some canopy trees, it would also be necessary to reduce understory fuel loads (figure 4.3, PBFP 2006). The APZs are required to be maintained in perpetuity and hence will bind both present and future owners. Additionally, 'a proponent should not diminish the ecological integrity of adjoining bushland and an APZ should be designed to minimise the impacts on any environmental feature in the landscape' (PBFP 2006 page 18).
Mr Palmer (submission 4 under the heading 'Clearing of trees') argues that the loss of trees, even for the larger APZ is small and should not be regarded as significant. He does not, however, address the impacts at the plant community level of reduction of fuel load in the understorey.
Mr Palmer notes that chapter 39, cl 4.9.2 (4) of SSDCP 2015 contemplates removal of trees and replacement planting. Proposed condition 19 provides for planting replacement trees, but in a note to the condition indicates that:
"Council offers off-site planting under a Deed of Agreement as an alternative to on site planting, at a cost in accordance with Council's fees and charges per tree. Offsite planting will be undertaken as part of Council's Green Street program."
The effects (if any) on ecological functions and processes of the vegetation arising from continuing management of the fuel load in the understorey were not addressed by the parties.
As I consider that the proposal, if it were to be approved, would require the 25 m APZ on Lot 3, the focus of determination then becomes are the likely environmental impacts of the imposition and maintenance of a 25 m APZ acceptable?
[23]
Environmental Issues
The objectives of SSLEP 2015 include at s 1.2 (a),(f), (g):
"(a) to deliver the community's vision for Sutherland Shire by achieving an appropriate balance between development and management of the environment that will be ecologically sustainable, socially equitable and economically viable,
(f) to protect and enhance the natural environment and scenic quality of the Sutherland Shire through the retention and rehabilitation of wildlife habitats, wildlife corridors, bushland, foreshores and waterways,
(g) to conserve, protect and enhance the environmental and cultural heritage of Sutherland Shire,"
The objectives of Zone 3 Environmental Management are:
"Zone E3 Environmental Management
1 Objectives of zone
• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
• To provide for a limited range of development that does not have an adverse effect on those values.
• To allow development of a scale and nature that maintains the predominantly natural landscape setting of the locality and protects and conserves existing vegetation and other natural features of the locality.
• To limit development in the vicinity of the waterfront so that the locality's natural qualities can dominate.
• To allow the subdivision of land only if the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment.
• To share views between new and existing development and also from public space."
The terms 'special ecological, scientific, cultural or aesthetic values' and 'in the vicinity of the waterfront' are not defined in the dictionary to the LEP).
For environmentally sensitive land, for which the whole of the site is mapped in relation to terrestrial biodiversity, the objectives are:
cl 6.5 Environmentally sensitive land - terrestrial biodiversity
(1) The objective of this clause is to maintain terrestrial biodiversity by:
(a) protecting native fauna and flora, and
(b) protecting the ecological processes necessary for their continued existence, and
(c) encouraging the conservation and recovery of native fauna and flora and their habitats.
(2) This clause applies to land identified as "Environmentally Sensitive Land" on the Terrestrial Biodiversity Map.
(3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider:
(a) whether the development is likely to have:
(i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and
(ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and
(iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and
(iv) any adverse impact on the habitat elements providing connectivity on the land, and
(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
(4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that:
(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised - the development will be managed to mitigate that impact."
The objectives of cl 6 .5 are aspirational, but cl 6.5 (3) requires the consent authority to consider various matters, but consent must not be granted unless the consent authority is satisfied in regard to the matters in cl 6.5 (4).
Clause 6.7 applies to land close to Alcheringa Creek, being approximately the part of the site below the Foreshore Building Line and similarly requires that the consent authority is satisfied of various matters before consent can be granted:
"(4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that:
(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised - the development will be managed to mitigate that impact."
Clause 6.9 applies below the FBL, the lower part of proposed Lot 3 and below the indicative footprint of any future building. Nevertheless, the consent authority is required by cl 6.9 (3) to consider whether development on Lot 3 would have impacts below the FBL:
"(3) Development consent must not be granted under this clause, unless the consent authority is satisfied that:
(a) the appearance of the development, from both the foreshore area and the adjacent waterway, will be compatible with the surrounding area, and
(b) the development will not cause environmental harm such as:
(i) pollution or siltation of the waterway, or
(ii) an adverse effect on surrounding uses, marine habitat, wetland areas or fauna and flora habitats, or
(iii) an adverse effect on drainage patterns, and
(c) the natural qualities of the foreshore area are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, and…."
Collectively these clauses indicate that biological diversity and landscape are to be major considerations in determining the development application.
The LEP adopts the definition of biological diversity from the Threatened Species Conservation Act 1995. Section 4(1) states:
"biological diversity means the diversity of life and is made up of the following 3 components:
(a) genetic diversity - the variety of genes (or units of heredity) in any population,
(b) species diversity - the variety of species,
(c) ecosystem diversity - the variety of communities or ecosystems."
The Biodiversity Conservation Act 2016 came into force on 25 August 2017. This was noted by the environmental experts (Exhibit 6). For completeness the definition of biological diversity in the new Act at s 1.5 is
"For the purposes of this Act, biodiversity is the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems."
This differs in wording from that in the previous legislation but the intent of the definition is essentially unchanged
Biodiversity values are defined in the Threatened Species Conservation Act as:
"4A Biodiversity values - meaning
(1) For the purposes of this Act, biodiversity values includes the composition, structure and function of ecosystems, and includes (but is not limited to) threatened species, populations and ecological communities, and their habitats.
(2) However, a reference in this Act to biodiversity values does not extend to
biodiversity values as they relate to fish, or marine vegetation, within the meaning of
Part 7A of the Fisheries Management Act 1994, other than those that are considered
to be animals or plants because of an order made under section 5A of this Act."
This definition was within legislation current when SSLEP2015 came into force, so use of "biodiversity values" in SSLEP2015 would take this meaning.
A more complex definition is employed in the Biodiversity Conservation Act in s1.5(2):
"(2) For the purposes of this Act, "biodiversity values" are the following biodiversity values:
(a) vegetation integrity--being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state,
(b) habitat suitability--being the degree to which the habitat needs of threatened species are present at a particular site,
(c) biodiversity values, or biodiversity-related values, prescribed by the regulations."
Habitat in this definition means:
"habitat" includes:
(a) an area periodically or occasionally occupied by a species or ecological community, and
(b) the biotic and abiotic components of an area.
Both definitions of biodiversity values relate to the importance of ecological functions and processes provided in the present case by the vegetation.
The concept of biodiversity is broad and is not restricted to threatened species, populations or communities. Is there sufficient evidence available on the biodiversity and biodiversity values of the subject site such that a consent authority could be comfortably satisfied that the considerations required by the SSLEP 2015 would be favourable to consenting to the development?
I am satisfied that there are not likely to be significant impacts on known threatened species, populations and ecological communities (Exhibit 3 at Folio 116).
I am satisfied that the only plant community present on the site is the Coastal Enriched Sandstone Dry Forest. The extent of this vegetation type known from the Sydney Metropolitan Catchment Area is 1741ha, of which 1223ha occur within National Parks and Reserves (Exhibit 6).
The data on fauna are sparse and largely anecdotal. Mr Stricker made reference to a number of skinks which might be found on rock outcrops and to a number of mammals which might occur. Mr Stricker suggested that a number of microbat species potentially occur in the area, but again without any survey-based evidence.
Mrs Spink referred to occasional observations of the presence of echidna (Tachyglossus aculeatus) but there is no evidence as to whether these represent sightings of members of a resident population or of casual visitors. No information on the significance of these sightings compared with other sites was presented.
Hamilton v Sutherland Shire Council [2012] NSWLEC 1015, was an appeal before Commissioner Fakes against the issuing of an emergency order to prune branches of a dead Angophora costata tree but to retain the trunk which could provide suitable habitat and breeding sites for native fauna. The applicant sought replacement of the council orders with one permitting removal of the entire tree.
The tree was situated in the Gymea Bay area, the site was mapped as Greenweb Core. It was acknowledged by all the experts at the site inspection that:
"for one reason and another no aerial inspection of the tree had been undertaken to investigate occurrence and or occupancy of cavities." (Hamilton at [30])
Commissioner Fakes considered in detail (Hamilton [65] - [79]) the application of the precautionary principle, as analysed by Preston CJ in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC at 125 - 183. In Telstra at [138] Preston CJ stated:
"The precautionary principle does not apply and precautionary measures cannot be taken, to regulate a threat of negligible environmental damage."
Commissioner Fakes (Hamilton at [67]) said:
"while it may be argued by some that the removal of one dead tree with perhaps only one hollow is negligible or at least not serious or irreversible environmental damage, it could also be argued that it is a serious threat when the cumulative impacts are considered. The impact of urban development on remnant bushland is often described as 'death by a thousand cuts'. Often, most at risk are large old trees that may be perceived as posing a risk to safety. As hollow formation takes many years, it is often only in these older trees that hollows are found. The listing of 'loss of hollow-bearing trees' and 'removal of dead wood and dead trees' as key threatening processes under the TSC Act, significantly elevates the importance of retaining dead trees with hollows wherever possible. The many references in SSDCP to the need to retain hollow-bearing trees indicate to me that council considers the removal of such trees to be a serious threat to local biodiversity and to the success of its Greenweb strategy.
68 Therefore, I find that there is a threat of serious environmental harm and thus the second test of 'full scientific certainty' must be considered."
Death by a thousand cuts occurs as the result of a process which is described by the ecologist WE Odum as 'the tyranny of small decisions' (Environmental degradation and the tyranny of small decisions.1982 32 BioScience 728). The author pointed out:
"that each threatened and endangered species, with a few exceptions, owes its special status to a series of small decisions. Polar bears, key deer, bald eagles, California condors Everglades kites, humpback whales and green turtles have all suffered from the combined effects of single decisions about habitat conversion or over exploitation."
The phrase tyranny of small decisions was first used by the economist AE Kahn (The tyranny of small decisions: market failures, imperfections and the limits of economics 1966 19 Kyklos 33) to describe the cumulative consequences of small independent decisions made in the course of business.
Commissioner Fakes considered that the consequences of cumulative impacts were such that even loss of a single tree could be viewed as posing a serious threat to biodiversity, and (Hamilton at [67] the removal of such trees to be a serious threat to local biodiversity and to the success of its Greenweb strategy.
Presence of a serious threat is the first trigger to engaging the precautionary principle. The second trigger is provided by lack of full scientific certainty and one factor contributing to such a lack of certainty was lack of sufficient, appropriate evidence Commissioner Fakes (Hamilton at [70]) was of the view that:
"it has to be said that neither party has established, with any modicum of certainty, that the hollow is used by native fauna, or indeed if it is capable of being used, as no aerial inspections have been undertaken nor have any targeted surveys been carried out.
She continued at [71]-[72]:
"71 While there are reports of incidental sightings of birds and a perhaps a possum, this evidence cannot be verified and therefore cannot be relied on. The applicant proposes the installation of nest boxes in other trees. As each species that nests in hollows has very specific spatial requirements, the appropriate selection and positioning of nest boxes requires some specialist knowledge as to the species likely to be displaced from the tree to be removed. While some assumptions may be made from desktop searches of wildlife databases, the spatial scale of those resources may be less applicable to local areas of bushland and may be limited to listed species and not the broader range of fauna that may require protection now to avoid eventual listing.
72 On this basis, there is clearly insufficient evidence to determine whether the removal of the tree will result in the loss of current habitat for an unknown number of species. In this regard I find Mr Fraser's conclusions (given at [17]) to be focussed on 'significant' habitat and 'significant' species rather than the broader consideration of 'habitat'. Because of the methodology, that is, a limited ground level inspection, the level of uncertainty is high. I consider that the potential to reduce the level of uncertainty within a reasonable time frame exists if the dangerous limbs are removed and the targeted survey recommended by the parties' ecologists is implemented. The results of the survey would not only inform a decision to keep or remove the trunk but, anticipating that it may eventually be removed on safety grounds, it would also inform the appropriate choice and location of nest boxes."
Five years after Hamilton. and also in Greenweb Core habitat, the same insufficiency of data regarding fauna arises.
In the present case there is an indication that databases had been interrogated to identify the locations of the threatened entities but whether these databases included information on non-threatened species is not in evidence. There has not been comprehensive sampling to determine presence or absence of even vertebrate taxa, let alone details of population sizes.
The applicant in Hamilton proposed to install nest boxes, but the basis for the details of the proposal was not clear (Hamilton at [76]):
"The precautionary measure they propose (the installation of nest boxes) is not based on any specific knowledge."
In the current matter Mr Stricker has proposed installation of nest boxes (both for birds and microbats) but the choice of the number proffered (as distinct from any other number) and the species which were to be targeted as future occupants was not explained.
In Hamilton, Fakes C dismissed the appeal and required the applicants engage an ecologist to carry out the biodiversity assessments agreed to be necessary by the parties at Hamilton [32].
Preston CJ had occasion to extend consideration of the application of the precautionary principle in circumstances where little information was available about the presence of stygofauna within voids in limestone proposed to be mined in Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd. [2010] NSWLEC 48 (NHVSS). Approval for mining limestone was granted. Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd (No 2) [2010] NSWLEC 104 (NHVSS (No 2)) determined the conditions for approval, which included requirements for intensive sampling and investigation of possible stygofauna. This was considered to be a proportionate response compared to the alternative of refusing approval.
While the sampling procedures and adaptive management regime in NHVSS (No 2) were appropriate in the case of a proposal which had a planned life extending over years, they are not adaptable to the current proposal where the subdivision process occurs once and there is no chance to alter it after the event. Nevertheless, NHVSS provides support for the proposition that in the absence of more than preliminary data on biodiversity, assessment of possible impacts of the proposal on biodiversity should take a precautionary approach. The effort and expense of biodiversity survey should be proportionate to the circumstances of each particular case. In this case a requirement for intensive survey conducted over a long period of time would be excessive, but something more than generalisation and assumption is required.
[24]
The clause 4.6 variation request
The applicant has made a written request, pursuant to cl 4.6 of SSLEP 2015, to vary the development standard in clause 4.1 (3A) of SSLEP 2015. (The cl 4.6 variation request is Annexure B in Exhibit 4). The development standard which it is sought to vary sets the permitted minimum lot size for internal lots in a subdivision in the E3 Environmental Management zone. The minimum permitted lot size is 1000 m² the variation proposed is for a lot size of 900 m2- a reduction of 100 m² or 10%.
The objectives of clause 4.6 are
"4.6 Exceptions to development standards
(1) The objectives of this clause are as follows:
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances."
The objectives intend to achieve better outcomes both for and from development. The Applicant's intent (Mr Palmer submission 13 (f)) is to provide better outcomes for and from the development of Lot 3, without detracting from the ability to develop all the amenities and functionality of Lot 2.
Mr Palmer argued (submission 13 (g)) that cl 4.6 is focused on the particular development and the particular circumstances. It is therefore not appropriate to consider whether the outcomes will be better under a different development. In this case the proposal is the three lot subdivision for which development application was made (and which was subsequently modified to the form before the Court) and the cl 4.6 variation request must address whether the minimum lot size is justifiable in the context of the three lot subdivision proposed, and a comparison with other proposals (such as a two lot subdivision) is not appropriate.
As the proposed lot size is 90% of the minimum lot size, the variation can be considered (clause 4.6(2)).
The applicant is required to justify that adherence to the lot size standard is unreasonable or unnecessary and that there are sufficient environmental planning grounds to justify the contravention.
Mr Layman argues that proposed Lot 2 (900 m²) is large enough to permit protection of the natural features on the site. If the 1000 m2 standard were maintained the bulk and scale of the development could be greater and potentially more intrusive. A smaller site with a smaller built form that sits well with the character of the area and adjoining areas is more appropriate.
Mr Layman argues that non-compliance with that standard would not result in any adverse impacts and the area of non-compliance is minor. To require adherence to the standard would not serve to achieve the objectives of the standard.
The effect of reducing the size of Lot 2 would be to move the boundary between Lots 2 and 3 closer to Wonga Road, reducing the need to clear and prune trees below the Foreshore Building Line. Moving Lot 2 further away from the waterfront would shorten the driveway (by about 4 m), reducing interference with the drainage channel and reducing the extent to which the driveway is perceived from adjoining properties.
Mr Bujaroski (Exhibit 4) did not support the cl 4.6 variation. He agreed that the objectives of the lot size development standards in clause 4.1 (1) (a) (i) - (vi) could be met although he suggested that the site is highly constrained and that the Applicant's suggested building footprint might be a simplistic interpretation of what the actual property outline would be. The future development on Lot 2 would have minimal impact on the Wonga Road streetscape and the driveway would also have little impact on the visual quality of the street. He thought the reduction in length of the carriageway would result in negligible improvement to the impacts of the structure on the site.
Mr Bujaroski conceded that moving the developed area of Lot 3 uphill by 4m would reduce impacts below the Foreshore Building Line but would also situate the building footprint over a rock outcrop. On balance he saw no net environmental benefit to reducing the area of Lot 2. The proposed development is not, in Mr Bujaroski's view, in the public interest as it fails to comply with the lot size requirement and objectives of the zone E3.
This is not a case of trying to squeeze an extra dwelling into a development and I accept that the Applicant has advanced the variation proposal in order to achieve a lesser environmental impact.
Whether or not the proposed lot size variation results in a net environmental benefit is finely balanced. The potential impact on rock outcrops cannot be readily assessed given that the arguments advanced are more in the way of assertion then being evidence-based, and the absence of details of any pier and beam construction limits the ability to determine whether the claimed beneficial consequences would be achieved.
There are both possible environmental benefits and possible detrimental consequences if the cl 4.6 variation were allowed and insufficient information to conduct a risk/ benefit analysis, particularly in relation to the impacts on the rock outcrop if a building were to be constructed over the indicative footprint. In this circumstance I reject the variation request.
What is to be assessed?
The proposal is for a 3 lot subdivision of a parcel of land, and the construction of a driveway and pedestrian access and associated drainage works.
There is no application for demolition of the existing dwelling on what would become Lot 1. Construction of new dwellings on proposed Lots 2 and 3 is not part of the proposal.
Considerable discussion occurred at the hearing about plans and layouts of possible dwellings on the two lots. This was an exercise of hypotheticals. They provided examples of what might be possible, but if approval were given for the subdivision, then, within the constraints set by the relevant development standards, any subsequent development application would reflect the aspirations of the clients and the skill and imagination of their architects. Any future development proposal would not be bound by the layout diagram produced by Mr Layman, although they would be bound by the indicative building footprint for Lot 3.
Given that the nature of future development applications is at this stage unknown and unknowable is it permissible for consent authority to have any regard for, or set constraints on, future development after the subdivision stage?
Acting Senior Commissioner Brown (as he then was) in Penrith Lakes Development Corporation Ltd v Penrith City Council [2015] NSWLEC 1329 agreed with Senior Counsel for the respondent that 'the court has the opportunity, or even obligation, to consider the ultimate use of the land in deciding whether to approve a subdivision application' and cited Walsh JA in Seraphina Bell Pty Ltd v Willoughby Municipal Council (N0 2) (1967) 14 LGRA 209 at [8]:
"I have already said it would be quite wrong to require the council or the board to deal with a subdivision application as if a land were and would always remain vacant land. The propriety of looking to the present and to the prospective state of the buildings and their uses is, I think, affirmed by such cases as.. (citations omitted)."
The Applicant, recognising the environmental sensitivities of the site, accepts the planning principle adopted by Roseth SC in Parrott v Kiama [2004] NSWLEC 77 at [17]-[18]:
"17 When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them.
18 In this case the proposed battleaxe allotment is not small, though it is much smaller than its neighbours. It is environmentally sensitive because of its extreme steepness. It is in a location where the adjoining allotments all have rear yards and thus it breaks the established building line. Any future building on it will be closer to the Stafford Street properties than other houses are to their southern neighbours. The likelihood of adverse impact is high. This is not to say that an acceptable dwelling cannot be designed on the allotment, only that it would require a higher than usual level of design skill. The design of the future house (at least the outline design) is not a matter that is appropriately left till later."
and proposes a maximum building footprint for proposed Lot 3 as shown on Drawing SK01 Issue P7 Subdivision Plan prepared by Resolut, dated 4 August 2017, and that this be subject to the creation of a suitable instrument(s) over proposed Lot 3 pursuant to s 88B of the Conveyancing Act 1919 which would limit the construction of any habitable building, including any attached structures, to within the proposed maximum building footprint. The instrument would be required to be created prior to the issue of a subdivision certificate.
While the maximum building footprint will include the dwelling and attached features such as decks it would not include swimming pools or other outdoor structures, construction of which would require separate application.
It will be necessary to either approve, with conditions, or reject the application for proposed three lot subdivision. Although Mr Bujarovski had prepared an example of a possible 2 lot subdivision (Exhibit 4 Annexure E) it would not be possible for me to approve this. If a two lot subdivision were proposed, with a much larger lot 2 than that of the currently proposed Lot 2, there would be scope under the permissible FSR for the building on the lot to be much larger than that currently envisaged, with different impacts. In addition the access would require redesigning and the impacts of the new design would require new assessment. Equally there is no scope for an 'orange light' approach as any significant modifications of the current designs and layout would not result in an outcome which would be substantially the same as the current proposal.
[25]
Conclusions
The proposed subdivision into three lots creates lots of sufficient size to permit future construction of dwellings which are compliant with all applicable standards. Assessment of the matter must therefore be based on the merits of what is proposed.
As explained by McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [117] -[119], while zoning is at the core of the planning system and what is permissible in a zone is important, other considerations must also be given appropriate weight in assessing whether a proposal should be approved.
"117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project."
In the present case the applicable zoning has specific requirements and a restricted number of permissible uses so the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (BGP Properties at [117]). The zoning permits, with consent, subdivision and the current application is for subdivision and provision of access. Any proposals for new dwellings on proposed Lots 2 and 3 are for the future. The detailed designs of any proposed buildings are unknown, but it is necessary to have regard to the probability of future construction of some form in considering whether the design of the project results in unacceptable environmental impacts (BGP Properties at [118]).
SSLEP 2015 is a recent instrument so this is not a case where, since the introduction of the plan, new policies or information will affect the application of a historic plan (BGP Properties at [119]). The task is to evaluate the acceptability of environmental impacts in the context of SSLEP 2015 as it stands.
The zoning of the site is E3 Environmental Management; of the categories of environmental zoning E1 and E2 do not permit dwelling construction, while E4 permits more development than E3. There are other categories of zoning, such as the residential zone categories, where development features higher in the zone objectives than it does in the environmental zones. Weight needs to be given to the zone objectives of the E3 zone in assessing the proposal.
The whole of the subject land is mapped as environmentally sensitive. Mr Palmer argued, and the environmental experts agreed, that the environmental values on the site increased downslope from Wonga Road and were highest in proposed Lot 3.
It is agreed that there are no currently threatened species or ecological communities known from the land. Special provisions exist for the protection of threatened species and communities in the Biodiversity Conservation Act 2016. Biodiversity is more than just its threatened components, and the experts agree that the condition of the vegetation on proposed Lot 3 and the lower part of Lot 2 was good.
The experts agreed that the vegetation and the rock outcrops will provide habitat for fauna species; but most of the discussion was generalised expectations rather than being well supported by data. I accept the general proposition but the absence of more than a few observations of fauna is a major deficiency. I accept as a generalisation that the habitat value of the site is likely to be high - the general condition of the vegetation would support such a conclusion.
The existence of a community comprising plants and animals, and the interactions between them and with the environment, are responsible for a range of ecosystem processes and services which contribute to the biodiversity values of the land.
Mr Palmer (submission 4) argues:
"(j) the Council relies on clause 6.5 of the LEP - the objective of that clause is to "maintain" terrestrial biodiversity in certain ways. It is not to maintain all trees or bushland.
(k) The clause (at 6.5 (3)) 'requires consideration of the condition, ecological value and significance of the flora and fauna of the site, as well as the importance of vegetation as habitat. The evidence is that the flora on the site, and the limited identified fauna, is common and does not have special significance, value or importance beyond being indigenous and at the fringes of a larger area of intact bushland. The Court would not find any adverse impact on that significance or importance as a result of the limit (sic) clearing proposed.
(l) The evidence is that there is no fragmentation caused by the disposal, nor is there any impact on the connectivity of the land.
(m) Clause 6.5 (4) clearly contemplates some impact is permissible provided that the impact is not significant. Significant impacts are also permissible, where the development is designed or managed to minimise or mitigate that significant impact."
At submission 4(p), Mr Palmer states
"The removal of the small number of trees on the site, and the limited impact on the overall area of this very common bushland community cannot be said to be contrary to the objectives at 4.1' [chapter 3 39.4.1 of SSDCP 2015] 'There is no impact on unique, threatened or endangered trees or vegetation."
Mr Palmer's categorisation of the vegetation type as a 'very common bushland community' is without a point of reference. Very common is relative to what other communities? The community is widespread in parts of the Sydney region, and a high proportion of its total area occurs in reserves, nevertheless an estimated area of around 1700ha in the Sydney Metropolitan Catchment Area is not, in absolute terms, large. Focussing on area does not take into account condition, nor the value of stands for the maintenance of ecosystem processes at the local scale, not the value of the particular stand as part of the corridor network.
The basis for the Greenweb is protection of a network of interconnected bushland areas to maintain biodiversity values and ecosystem processes. There is no requirement that the Greenweb be made up of endangered communities or threatened species (even though they might occur in some parts of the Greenweb, or move through the network). Greenweb is about conserving the common as well as the threatened.
Biodiversity conservation requires a broad approach rather than a narrow reductionist approach concentrating on a few specific components without considering interactions between them. A narrow view risks loss of perspective (Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSW LEC 140 at [43] (Cory Turnbull). Preston CJ in Cory Turnbull at [43] - [51] provides a pertinent analysis of the concept of ecological community, demonstrating the need for a holistic approach - while this was undertaken in the context of a prosecution the analysis is of wider applicability.
Given that both environmental experts recognise that the vegetation was in good condition and provided habitat potentially for a large number of fauna species I do not regard the absence of any currently listed threatened species as diminishing the biodiversity values of the community.
Mr Palmer (submission 4 (k)) makes reference to the 'limited identified fauna' - this is ambiguous - is identified fauna limited ( ie only a few have been identified).or is the fauna limited? Absence of evidence is not evidence of absence and there is no reason to suspect that the fauna of the site is depauperate - rather that study has been limited.
Mr Palmer's submissions on the rock outcrops (submission 7) is also limited and does not acknowledge the lack of evidence on the biota of the outcrops and how it might be affected by the proposed construction on Lot 3.
The approach advocated by the Applicant does not recognise the site's environmental and biodiversity values, and does not address cumulative impacts (the death by a thousand cuts scenario) and continues the approach criticised by Commissioner Fakes in Hamilton.
I have found that, if approved, the APZ for the possible future dwelling on Lot 3 should be that proposed by Ms Pinfold. This would extend below the Foreshore Building Line, and would require fuel management below the FBL in perpetuity, Construction of a building within the indicative footprint on Lot 3 is likely to have impacts both on the perception of the rock outcrop and its value as habitat, the magnitude of the impacts cannot be assessed on the basis of currently available information. The full impact of the elevated carriageway on the drainage line is also difficult to estimate because of limited information. Individually these impacts might not be considered great, but collectively and cumulatively I am of the view that the precautionary approach adopted by Commissioner Fakes in Hamilton is equally appropriate in the circumstances of the present case.
I find that, on the merits, the three lot subdivision proposal would have undesirable impacts on the integrity of the Greenweb habitat on the site and does not meet the objectives of zone E3 and thus cannot be approved. I would also find that the two lot proposal advocated by Mr Bujaroski for the Respondent would, in the form proposed during the concurrent evidence, similarly not be supportable.
[26]
Orders
The Orders that flow from my conclusions are:
1. Appeal dismissed.
2. The Development Application No. 16/0359 for a three lot subdivision of 24 - 26 Wonga Road, Yowie Bay, is refused.
3. Exhibits are returned except for Exhibits 2, A, B, C, D, E, F, J and K.
Paul Adam
Acting Commissioner of the Land and Environment Court of NSW
[27]
Amendments
28 December 2017 - Typographical corrections at [36], [39], [40], [46], [48], [165], [166], [181], [189], [210], [216].
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: 28 December 2017