Bendent Pty Limited v Blue Mountains City Council

After development bushland would remain on the reserve land (ie. ECA) within the site and thus the bushfire threat would remain. As a consequence and consistent with the approach in DCP 27 fire protection zones ("FPZ") are required.

In this case, according to DCP 6 the FPZ should be at least 25 m and comprise a 10 m fuel free inner zone ("FFIZ") and a fuel reduced outer zone ("FROZ"). Allowing for the standard 8 m building setback and the 10 m road reserve the FROZ required would extend some 7 m into the ECA. Mr Tolhurst explained that it is not appropriate for such reserves to be utilised for this purpose because of the significant burden this would place on council resources. He acknowledged that there are areas in the suggested FROZ in the ECA which feature large areas of rock where fuel loadings would not be excessive.

Mr Tolhurst was also concerned that a number of proposed lots (ie. lots 1, 26, 27, 28, 37, 43, 44, 45, 46, 47, 54, 57, 68 and 69) variously have potential fire problems. He identified the need to reduce fuel loadings in adjoining reserves to reduce fire threat. However the provision of an appropriate FPZ on the lot might result in insufficient area for construction of a house. In some places there would be inadequate access and turning areas for fire fighting vehicles.

For the applicant Mr Free (bushfire consultant) explained that the site currently represented a bushfire threat to the adjoining residential properties which would be significantly reduced by the proposed development. Moreover, after development there would remain a relatively low threat of bushfire because the resulting urban/bushland interface would not have the existing dangerous north, north-west and south-west exposure. He considered that this development has the characteristics of infill development.

Mr Free accepted that the FPZ needed to be as wide as that specified by Mr Tolhurst which would include a 7 m wide fuel reduced area in the ECA. However he said that taking into account the width of the road and the house setbacks therefrom a FFIZ much wider than the 10m would be created. Further, because much of the ECA will be bordered by a road which would provide access and water supply fire fighting would be safer and more effective.

On behalf of the applicant, Mr Fanning (ecologist) provided a report which detailed the results of flora and fauna investigations conducted on the site and elsewhere in the vicinity in addition to a Flora and Fauna Assessment which he prepared in January 1999.

It was Mr Fanning's opinion that the proposal would only remove a small area of vegetation. Habitats which are widely distributed, common and extremely well conserved would remain. The impacts would therefore be small in extent, localised in effect and acceptable in terms of biodiversity conservation because significant areas of bushland would be retained.

Mr Fanning did not agree that the site contained environmentally sensitive vegetation units or had high visual significance, nor did he consider that it supported areas of ecological significance. He did acknowledge however that two rare plant species may be removed. However such species are not listed as threatened under the Threatened Species Conservation Act 1995. Despite the existence of numerous rock outcrops and ledges on the site he did not accept that these were significant features.

In summary, Mr Fanning believed the development proposal constituted an appropriate balance between development and conservation. He opined that the proposed subdivision would be site responsive and would not impose any significant adverse environmental impacts on the natural environment. He said that the Blue Mountains region is characterised by extensive areas of the same or similar natural resources as are present on the site and which are protected within national parks.

Mr Fanning also carried out an analysis pursuant to s 5A of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and concluded that the development of this site is not likely to impose a significant effect on any threatened species or populations or ecological communities or their habitats and no species impact statement is required.

Drs Smith (ecologists) who testified for the council were critical of the Fanning reports for several reasons. A viable local population of Red Crowned Toadlets, a threatened species, was discovered on the site. As a consequence, an 8 part test as stipulated by s 5A of the EP&A Act was required. It was their opinion that the removal of bush rock, watercourse degradation and urban development generally comprised threatening processes that could result in a significant impact on the species. They also expressed concerns regarding the existence on the site of other vulnerable species being the Yellow-bellied Glider, the Squirrel Glider and the Eastern Pygmy Possum which has been the subject of a preliminary determination and which is listed as a threatened species. Accordingly they believed that a species impact statement is required.

In addition Drs Smith were concerned about a number of unusual plant species on the site as well as the nationally rare plant species, Lomandra fluviatilis, Lissanthe sapida and the regionally significant plant species, Gratiola penduculata.

They were also generally concerned as to the removal of some of the extensive rock outcrops and rocky escarpments that characterise the site and which comprise valuable habitat.

In a supplementary statement, Mr Fanning rejected the criticisms of Drs Smith. In relation to the Red Crowned Toadlet, the Yellow-bellied Glider, the Squirrel Glider and the Eastern Pygmy Possum he acknowledged possible impacts but argued very strongly that in terms of s 5A of the EPA Act the development was not likely to have a significant effect on these species. In the circumstances he considered that a species impact was not required.

Mr Fanning concluded that even though there would be site disturbance and native vegetation removal it was not a matter of critical concern. He also noted that the vegetation communities on the site are abundant in the locality and the region and are extremely well conserved.

For the applicant Miss McDonald (archaeologist) referred to aboriginal sites on the land namely; a camp site and two axe grinding groove sites. The camp site is described as an open artefact scatter and is the only site which is likely to be impacted. It is located across the boundary of proposed residential lots 18 and 24. The two grinding groove sites would be located in open space.

These sites were identified in a 1998 report prepared by Miss McDonald's consulting company which recommended that the camp site needed to be further investigated to determine the significance of the site. This work has not been completed. Once it has been completed and the likely impacts of the proposal determined, management recommendations could then be made and an application lodged with the National Parks and Wildlife Service (if necessary) for a consent to destroy or interfere with the site.

For the applicant Mr Lewis (town planner) considered the expert reports which dealt with drainage, sedimentation, geotechnical, topographical, flora and fauna, bushfire, archaeology and was satisfied that all of these matters had been properly addressed and the application could proceed to approval.

Mr Lewis also considered site density in terms of cl 34.1 of LEP 1991 and concluded that because the proposed density was only marginally greater than is allowed by LEP 1991 this was not a matter of concern. He referred to the SEPP No 1 Objection which states that the development standard would allow 70.39 lots and that the proposal exceeds this standard by 1.61 lots or 2.29%. He considered that non compliance was minor and strict compliance would be unreasonable and unnecessary. In further support he explained that no additional road or drainage works are required; the proposal represents the proper management and development of the land; the subdivision has had full regard to the particular aspects of the land; it makes optimal use of existing infrastructure; it is a natural extension of the village of Warrimoo; and it is consistent with the underlying purpose of the development standard being to allow a reasonable density having regard to the constrains of the site.

For the council Mr Kennan (town planner) was concerned that the applicant seeks to maximise lot yield with little or no regard for the environmental consequences. He was especially concerned in relation to the conflict with cll 34.1 and 34.4 of Amendment 25 which when applied to this subdivision resulted in 65 of the 72 lots not complying with the proposed requirements.

Mr Kennan also considered the expert reports and believes that they demonstrate the potential impacts on flora and fauna, natural features and archaeological deposits are significant and adverse. He considered that the integrity of the site's bushland setting will not be maintained by the proposal. These impacts arise from the subdivision, its services, bushfire mitigation and the resultant erection of dwelling houses.

Significant and adverse impacts on the environment of the site would arise as a result of the following matters which he identified and conveniently summarised by him as follows:-

(a) There has been no attempt to reduce the adverse impact on the vegetation on the Site; (b) Adequate buffer zones have not been provided to protect the integrity of the significant vegetation on the Site or the watercourses which traverse the Site; (c) The proposed subdivision would have a major impact on the population of identified threatened species over the longer term; (d) The impact of the development will not be confided to the development site itself but can be expected to extend well beyond its boundaries; (e) Bushfire protection measures necessary to protect the residential development which will result from the proposed subdivision will involve clearing or thinning of native vegetation within the lots and also probably beyond the outer edge of the development. The bushfire protection measures will have an adverse impact on the vegetation units both within and beyond the Site. (f) The construction of the proposed roads within the subdivision will have a significant impact on the environment of the Site and the downstream water quality due to the extensive engineering works involved in constructing those roadways. (g) The construction of the proposed watercourse crossings will result in a significant disturbance to the environment of the Site with a commensurate impact on the major unnamed gully traversing the Site.

The Court has been persuaded by the evidence of the respondent that on balance the proposal is not sufficiently responsive to the constraints of the site and as concluded by Mr Kennan it would have significant and adverse impacts on the site caused by engineering requirements especially for road and culvert construction and removal of rock outcrops and vegetation. In summary the proposal should be rejected for the reasons set out hereunder.

i) Whilst adequate roads can be provided and safely constructed and bush fire protection provided, the impacts, particularly upon the ECA will be unsatisfactory. This would be inconsistent with objective (a) which seeks to protect environmentally sensitive land and areas of high scenic value. ii) In addition, the significant extent to which the roads and the likely of some of the lots would involve steep land and rock shelves and outcrops would be inconsistent with cl 10.2(b) and 10.5(d)(v) of LEP 1991. Significant amounts of cut and fill are a relevant consideration as well as the removal of an estimated 3,500 m3 of surplus fill. iii) One of the particular concerns of the council was the impact of the proposal on the three watercourses which traverse the site. Three box culverts are proposed to provide road crossings but the proposed methods of construction have not been finalised. Given the nature of such box culverts and especially considering the likely size of the culvert between lots 24 and 25, significant works including fill and or retaining walls will be required. Such works would be contrary to cl 10(5)(iv) of LEP 1991. The council would have preferred that bridges be provided. Given the sensitive nature of this site, the details provided for such important infrastructure is clearly inadequate. iv) The applicant's proposals for sewerage disposal are unsatisfactory. The disposal of sewerage by a system of privately operated and controlled pumps is contrary to accepted practice as recommended by Sydney Water. Such proposal is novel and in the absence of support from the relevant authority, that is, Sydney Water and in the absence of any precedent for such system the proposal is rejected. v) Regarding drainage and sedimentation, while such matters potentially could have significant effects the Court concludes they could have been dealt with by the provision of more detailed plans and conditions of consent.

i) The Court accepts the evidence of Mr Tolhurst that to achieve an appropriate FPZ part of the ECA would need to be subject to fuel reduction. Given the existence of significant outcrops the suggested 7 m may not however be required. Nevertheless it would result in an impact on the ECA in terms of loss of natural vegetation which should be avoided. Such impact would be compounded by Mr Koen's requirement for the main road through the site to be widened and the need to extend retaining walls or batters and associated cut and fill into the ECA. These impacts would no doubt result in interference with vegetation and the topography including rock shelves and rock outcrops. Such works will, according to Drs Smith, result in the loss of valuable habitat.

ii) As for the matter of threatened species I have been persuaded by the evidence of Mr Fanning that the proposal is not likely to have a significant effect thereon. Accordingly this aspect would not have been critical to the application. Despite this, greater attention could have been given to the rare or unusual species of plants which were discovered on the site by Drs Smith.

i) Amendment 25 was the subject of much debate. Mr Robson for the council submitted that the plan was "certain and imminent" but even if it were not, its objectives are clear and there is no suggestion that these are not being pursued by the council. Such objectives are clearly relevant to this site. The Court is required to take into consideration the requirements of the draft Amendment 25 pursuant to the provisions of s 79C of the EP&A Act. In view of the almost certain prospect that the draft will be adopted, the Court must pay regard to the fact that there will be non compliance with the proposed standards by 65 of the 72 lots as detailed by Mr Kennan. While not being determinative, this consideration adds to the unacceptability of the proposal, in accordance with the principles referred in Walker v North Sydney Council (2000) 110 LGERA 397 at 404; Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138; Edward Listin Properties Pty Ltd v North Sydney Council (No 2) [2000] NSWLEC 181; Mathers v North Sydney Council [2000] NSWLEC 84.

Having taken into consideration all of the relevant matters required by s 79C(1) of the EP&A Act, it is the decision of the Court that the present proposal is unacceptable and that the appeal should not be upheld, for all of the above reasons.

1. The appeal be dismissed.
2. Exhibits be returned.

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