[2010] NSWLEC 48
Salama v Northern Beaches Council [2020] NSWLEC 140
Telstra Corporation v Hornsby Shire Council (2006) 67 NSWLR 256
Source
Original judgment source is linked above.
Catchwords
[2010] NSWLEC 48
Salama v Northern Beaches Council [2020] NSWLEC 140
Telstra Corporation v Hornsby Shire Council (2006) 67 NSWLR 256
Judgment (26 paragraphs)
[1]
Introduction
In an overview sense, Council indicated it remained concerned about the suitability of the site for the proposed development and the feasibility of proposed measures to address site constraints (respondent's jurisdictional note (RJN) par 3).
Council identified the following site constraints which are seen to impinge on its suitability for the proposed development (RJN par 13):
"• the steep and undulating topography of the Site;
• the bushfire prone nature of the Site;
• the ecological constraints on the Site;
• the geotechnical risks of parts of the Site;
• the creek which traverses the Site (and its accompanying feeder streams);
• the limited number of access points to the Site from existing roads; and
• the identification of a corridor on the northern part of the site for a future connector road."
[2]
Particular issues
Many of the contentions originally raised by Council have been resolved through the substantial work by the applicant's team to further investigate and respond to the raised concerns. I can synthesise the real issues in dispute in this matter into three main topics and a further subsidiary topic.
The first topic is concerned with civil engineering but also includes some considerations relating to geotechnical engineering. It relates to aspects of the internal access road and specifically how the steep gradients and associated earthworks are to be managed.
The second topic is concerned with risks from bushfire. This issue needs to be understood in the context of site gradients, in particular. This issue also has a relationship with the proposal's response to natural ecology.
The third topic is concerned with ecological implications. A related constraint is that of the requirement for bushfire asset protection zones, and associated vegetation clearing and ongoing fire fuel load maintenance, as needed for bushfire risk management.
In the fourth topic I attend to other matters of subsidiary relevance.
The experts providing evidence with respect to these issues included the persons nominated in Table 1. I might say generally that, in this appeal, it was my impression that the expert evidence was of a high quality and that the experts acted cooperatively, including across disciplines, and in accordance with their overriding duty to assist the Court. This assisted considerably in narrowing the issues in dispute. In this table I also take the opportunity to refer to expert report exhibit references, as tendered. It can be seen that in a number of instances more than one expert report was tendered.
Table 1 - Expert evidence
Expertise Appointed by Applicant Appointed by Respondent Expert report
(marked exhibits)
Civil engineering D Martens M Denny Ex 9, Ex 14, Ex 19
Ex 24 (also with C Thomas from the respondent)
Ecology D Robertson M Henderson Ex 6
Ex 7, Ex 8, and Ex 23 (each jointly with bushfire experts)
Bushfire G Douglas G Swain Ex 5, 8
Geotechnical engineering G Samuels P Roberts Ex 10
[3]
Setting the scene
The proposal involves significant cut and fill along the spine road, with associated significant retaining walls, batters and revetement structures. In closing submissions Council indicates that while it does not contend that "the proposed structures are fundamentally unsafe or cannot be constructed to the appropriate standards, the possibility of failure is always present" (respondent's closing submissions filed 26 June 2024 (RCS) par 277(c)). Instances of exceedance of Council development control plan policy are involved, with some instances of considerable volumes of earth mass retained behind high walls and revetment structures.
While this can initially be dealt with as a standalone topic, it is appropriate to be mindful of the implications of a road failure, given that only the main (northern) intersection with Scenic Drive has been endorsed as safe for regular use by traffic experts (Ex X p 1-10). As put by Council (RCS par 277(e)):
"In this case, failure of the spine road would likely sever access for all properties south of the failure point. Given that the road is a private road, access would be cut off until such time as the Community Association is able to fund, and arrange for, repair."
[4]
Policy
Certain policy provisions in Tweed Development Control Plan (TDCP) are relevant here. Two policy areas were raised. The first policy area sat behind Section A5.4 Urban Subdivision Design Guidelines & Development Standards, with Section A5.4.4, concerned with "physical constraints". One of the objectives of this section is to achieve urban forms that "avoid significant changes to the natural landform and large scale earthworks".
The second control was referenced as Development Design Specification - D6 Site Regrading. A series of site regrading principles are indicated at D6.02. Table D6.1 part of TDCP is reproduced below. It limits maximum permissible combined height for retaining walls and batters to 1.8m (above street level) and 2.4m (below street level) for residential development (at the boundaries of lots created within subdivisions). Site regrading principles included the following:
"Natural topography is an important characteristic of an area. The extent of landform change to render a site suitable for subdivision should be kept to a minimum. Site regrading should be sensitive to existing landforms and topography (of both the subdivision site and neighbouring areas) so that the natural setting may be preserved to the greatest extent possible. The subdivision should be designed to fit the topography rather than altering the topography to fit the subdivision.
site regrading must not adversely impact on other land, persons or public infrastructure.
…
f) There must be no adverse geotechnical impact or risk caused to the subdivision site or other land.
…"
Figure 2 - Tweed Shire DCP combined height controls for retaining walls or batters
[5]
Geotechnical experts
Apart from civil engineering evidence, written and oral geotechnical evidence was before the Court. What is notable from the joint report of the geotechnical experts is the requirements relating to ongoing specialised input as not only the roadworks stages are completed but also in regard to ensuring good management in relation to any concentration of stormwater and wastewater flows. Two quotes assist in setting the scene. The first is in relation to Council's Contention 12A(a), which provides as follows (Ex 1 p 34):
"There is potential for slope instability across the Site, particularly over steeper portions associated with the placement of significant thickness of fill, extensive cuts and construction of revetment retaining walls. A high level of geotechnical input is required to address the stability of the Site during and after construction. Two landslips occurred at Scenic Drive in 2022 to the north-east and south-west of the Site."
The experts directly agreed with this contention noting the risk associated with
"… the placement of significant thickness of fill and extensive cut depths (maximum height and depth in the order of 10m) and construction of retaining walls (maximum height in the order of 6m). [Mr Samuels) stated that the potential for instability for existing site conditions varies from low to high across the site, however, with adequate design, an engineering solution to minimise the risk of instability should achieve an acceptable risk with additional targeted investigation and detailed design. This includes the implementation of adequately designed retention and drainage systems, and associated maintenance. [Mr Roberts] agreed with these comments."
The geotechnical evidence also included the following (Ex 10 pars 15-16):
"… in relation to the potential for instability across the site referred to in Particular (a) of the Contention, the placement of fill on the sloping portions of the site, the forming of the cut batters and construction of the retaining walls would be challenging. As such a high level of geotechnical input is required to address the stability of the Site during and after construction, with particular regard to construction sequencing; stable earthworks platforms will need to be established in order to safely complete the earthworks and retaining wall construction. GS stated that DP propose to carry out the aforementioned works, as required.
[Mr Samuels] stated that in relation to Particular (a) of the Contention, he was responsible for preparation of the DP assessment reports prepared on behalf of Council for the two landslips that occurred at Scenic Drive in 2022 to the north-east and south-west of the Site. GS stated that the likely mechanism of failure being saturation of the fill embankments due to poor upslope drainage."
The picture I have from the geotechnical experts is that there is a ready "conceptual" answer to the civil engineering design for the spine road, mindful of site characteristics. There is already preliminary work undertaken by Coffey and Partners, and I understand Mr Samuels, which includes a concept design including detailed cross section. The design adopts a factor of safety of 1.5, meaning that the structural components of the road would be designed to withstand 1.5 times maximum expected load (T 28/2/24 p73 (49)). In oral evidence, Mr Roberts also indicated that "it would be difficult to construct some of the structural elements". The experts agreed that the work would be "challenging" but that:
…an engineering solution to minimise the risk of instability should achieve an acceptable risk with additional targeted investigation and detailed design. This includes the implementation of adequately designed retention and drainage systems, and associated maintenance.
Still in regard to the design scheme (rather than its construction), the agreed conditions (with proposed Condition 16 a point of reference here), identify certain further works to be completed prior to the issue of the subdivision works certificate. I will not reproduce the condition in its entirety here but note the following content within it, which (not surprisingly as they were drafted by them) directly addresses concerns raised by the geotechnical engineering experts (Annexure A Condition 16):
The Geotechnical Investigations and report must address:
a. construction sequencing,
b. how stable earthworks platforms will be established to safely complete the earthworks and retaining wall construction approved by this consent,
c. the location for proposed building envelopes and driveway access, together with an assessment of geotechnical factors that demonstrate the suitability of the proposed building envelopes and driveway access,
d. site specific geotechnical advice for each lot.
The Geotechnical Investigations must be submitted and approved by the Certifier (Council or a Registered Certifier) and a copy of the approved report submitted to the Council for its records.
[6]
Civil engineers
It was clear from the civil engineering evidence that there were regular and substantial exceedances of the provisions of Table D6.1 (see [21]) in the proposed spine road civil design. Engineering plans prepared by Dr Martens provided height details for retaining structures both above and below the road surface along key chainages of the spine road (Ex K). Dr Martens agreed that the figures in Ex K indicated retaining wall heights only and did not represent the "combined height" of retaining walls and associated batters as referenced as Table D6.1 requirements.
In his evidence Mr Denny referenced relevant definitions under D6.05.6 of TDCP in regard to "combined height" and sought to add batter heights relevantly (Ex 22). Ex K had already indicated a number of areas of retaining wall heights to and above 5m (including to 6m). Ex 22 indicated that an additional 1m would need to be added in relation to the 1:2 batters.
The difference between the civil engineering experts can be outlined first with a quote from Mr Denny's oral evidence (1 March 2024 97 (24-34)):
WITNESS DENNY: "So I've got no objection to that the retaining walls can be appropriately designed, and as Dr Martens indicated, that if based on their height they become a type 1 or a class C now, that the appropriate measures within the design to reduce that risk, but despite best engineering practice, they can't guarantee that there won't be a failure. And I'm saying in regards to the extent of these walls in the vicinity of 6 metres plus 1 in 2 batters, that should there be a failure, it will be extremely cost, costly to, to repair and the failure could be significant and, and that has an impact on the body corporate in regards to how do they fund the repairs, how long would a repair take, if, if the road was, was cut."
The concern from Mr Denny was not about design or even the proposed conditions associated with construction. It was that there remained a risk of failure given the extent of the proposed retaining structures up to 6m in height (plus batters and sometimes considerable associated loads) and then the consequences of this possible failure which in could cut access to residences within the subdivision for a long period of time, according to Mr Denny.
Dr Martens pointed to the fact that there were already nearby retaining structures of similar characteristics which have been constructed. During the site inspection there was an opportunity to view the 4-6 m high vertical sandstone block retaining wall located partly on private land to the immediate north of the site and partly on the Scenic Drive Road. Mr Denny noted that there had been some problems with this wall which required rectification during a six months defects period and that subsequently there had been no problems which he was aware of.
Dr Martens acknowledged that there was potential for road failure but in his experience such defects "will manifest sometime in the first six months, often earlier than that". Defects liability period for construction contracts such as this would commonly be between six and 24 months according to Dr Martens. In cross examination, Dr Martens also acknowledged that there remained a risk of failure even with a properly designed and engineered road, and that as a general principle the higher the retaining wall and the more material behind it, other things being equal, the greater the potential consequences of failure of that wall (T 4/4/24 31 (15-17) and (41-45)).
[7]
Substantial breaches of TDCP civil engineering provisions a serious concern
Generally, it seems to me on the evidence that the plans for the spine road and associated stormwater management infrastructure do as well as they might in the circumstances. Proposed conditions of consent have been given a good degree of attention by the experts and, beyond the agreed conception of the spine road, also seem to take the matter of construction implementation as far as can practically be expected of them.
The conditions of consent, agreed by the applicant, also make clear that the Community Association would be responsible in perpetuity for the maintenance and repair of all retaining systems (walls, revetments, cut / fill batters) within, or supporting, the spine road. These and other similar requirements relating to ongoing management and maintenance responsibility need to be addressed prior to the issue of the subdivision certificate. Further on the consideration of the spine road, maintenance responsibility would be further enforced by a Positive Covenant "on all titles" to ensure that (proposed Condition 99 in part).
However, it is concerning that there have been significant civil works failures in the site environs in the past, albeit with explanations available and responsive actions to manage them in place.
The scope and relative scale of the earthworks associated with the spine road, including the response to loadings behind the retaining structures, are substantial. The geotechnical engineers note the difficulties associated with the works. The civil engineering experts agree that there remains a risk of failure remains.
There is a risk of failure for any road. However, in this case, and directly related to the very substantial breaches of TDCP, a failure of any one of the larger scale structural elements that make up the spine road would take time and substantial costs to repair. While the risk of failure can be thought of as not high at all, the consequences of failure could be very significant. This is not just in terms of repair-related obligations (greater as they can be expected to be as a consequence of TDCP breaches) but also in terms of blocking safe access to residences located south of any failure until things are made good. The applicant's case would be significantly stronger with regard to the TDCP breach were there to be two access points suitable for general use. As it is, the substantial breaches of maximum combined retaining wall and batter structures control under TDCP is a significant adverse factor in the evaluation of this proposal.
[8]
Setting the scene
There is no dispute that the site occupied by the proposal is bush fire prone land for the purposes of the Rural Fires Act 1997 (RF Act). In turn, under s 100B(3) of the RF Act a bush fire safety authority, issued by the Rural Fires Commissioner, is required for a subdivision of the site for residential or rural residential purposes. Council referred the DA to the NSW Rural Fire Service (RFS) for it to consider the grant of General Terms of Approval (GTAs). The GTAs have not been issued at this point, with the RFS indicating in its most recent advice that it is not the practice of the RFS to review DAs that are before the Land and Environment Court (RJN par 23).
It is agreed by the parties that the non-provision of GTAs with respect to the current proposal is no bar to the grant of consent in these proceedings. Under s 8.14(4) of the EPA Act, the Court may determine the appeal whether or not the consent authority has obtained general terms of approval from, in this instance, the RFS.
Section A5 of TDCP (also titled Subdivision Manual) sits as the initial point of attention in the evaluation of bushfire risk here. That is to say that s 4.14(1) of the EPA Act is not triggered with this proposal for rural residential subdivision.
Council believes Clause A5.4 of TDCP applies, which provides "urban design guidelines and development standards" for subdivision. The applicant believes Section A5.5 applies, which provides "rural design guidelines and development standards" for subdivision. Both Clause A5.4 and A5.5 also draw in Planning for Bushfire Protection 2001. This 2001 document is now superseded and the parties agree, and I accept, that the reasonable course is to assume the reference today should be to the updated policy version: Planning for Bushfire Protection 2019 (PBP).
There was some argument about detailed provisions relating to perimeter roads within each of the abovementioned clauses within TDCP, which I will come to shortly (and briefly). But the point of main attention in regard to evaluative criteria in this matter is PBP.
While there were other points (especially in relation to the maintenance of APZ areas), for me the principal difference between the parties concerns accessibility for firefighting purposes and relates to the provision of perimeter roads.
[9]
Accessibility for firefighting purposes and perimeter road
The applicant argues that for rural residential subdivision there is no requirement for perimeter roads under PBP and thus none can be required for this proposal. I understood Council's position to be that this position is not correct for two reasons. The initial reason is that each of the two TDCP provisions (at Clauses A5.4 and A5.5) directly refer to a requirement for perimeter roads. While there might be something to be said for this Council argument, if it (Council) seeks to provide a defence mindful of the provisions of s 4.15(3A) of the EPA Act, I am more interested in overall merits evaluation at this point. In turn, the second line of reasoning in support of Council's position is of more importance, which does relate directly to substantive PBP provisions.
[10]
Relevant Planning for Bushfire Protection provisions
Section 5 of PBP is concerned with residential and rural residential subdivision and establishes evaluation principles. I reproduce PBP's nominated "specific objectives" for residential and rural residential subdivision (with dwelling entitlements) in full below:
minimise perimeters of the subdivision exposed to the bush fire hazard (hourglass shapes, which maximise perimeters and create bottlenecks should be avoided);
minimise vegetated corridors that permit the passage of bush fire towards buildings; provide for the siting of future dwellings away from ridge-tops and steep slopes, within saddles and narrow ridge crests;
ensure that APZs between a bush fire hazard and future dwellings are effectively designed to address the relevant bush fire attack mechanisms;
ensure the ongoing maintenance of APZs;
provide adequate access from all properties to the wider road network for residents and emergency services;
provide access to hazard vegetation to facilitate bush fire mitigation works and fire suppression; and
ensure the provision of an adequate supply of water and other services to facilitate effective firefighting.
Underneath these specific objectives, Section 5 of PBP is framed up along the lines of modern development control plans, stating, for various specified items: (1) intent of measure, (2) performance criteria and (3) acceptable solutions. In the normal course, it would be the case that other solutions are also candidates for conforming with specific objectives, intent of measure and performance criteria; but if the acceptable solution is met it is deemed, of itself, to satisfy these higher order requirements.
I understand the applicant to argue that, by exclusion, the acceptable solution to the relevant performance criterion and intent measure involves the non-provision of a perimeter road. Below is a snapshot of what I understand to be the relevant provisions from Section 5.3.2 of PBP. The particular point of attention is the second of the listed points in acceptable solutions.
Figure 3 - Excerpt from Section 5.3.2 of PBP
I understood the applicant's argument to be that: 1) the fact of Table 5.3b's reference to acceptable solutions for access to both residential and rural residential subdivision coupled with 2) the reference to perimeter roads as required (only for) "residential subdivisions of three or more allotments", means that (3) it is an acceptable solution for the relevant performance criteria, intent of measure and ultimate relevant specific objective that a perimeter road not be provided for rural residential subdivision. This is a form of inductive reasoning. That is, in regard to the intent to provide for "safe, all-weather access to structures" for firefighting vehicles, as a subset of the wider access-related intent, there is no direct "acceptable solution" to say no requirement for a perimeter road in any instance of rural residential subdivision, no matter its particulars. But the applicant's inference seems reasonable, generally, and is supportable. It can be expected that, for rural residential development such as that proposed here, there will be suitable road access as part of the general requirements of the development, which otherwise provide the type of firefighting vehicle access to structures referenced in this provision. In this case, the bushfire experts have had a direct role to play to ensure there is suitable access to nearby to the proposed dwelling envelopes for firefighting vehicles.
[11]
Evidence
In oral evidence, Dr Douglas expressed an outline of his view when asked whether there was a specific requirement for a perimeter road in this instance. In his response he differentiated between residential and rural residential subdivision (T1/3/2024 22 (33-), as follows:
WITNESS DOUGLAS: "…I would express it that planning for bushfire protection acknowledges the importance of perimeter roads for residential developments. The question then is what happens in rural residential developments where it's not practical for example to have a perimeter road that would operate in those areas. So, planning for bushfire protection and I've been known to be very strict on the issue with clients et cetera that a perimeter road that separates residential forms of development from the bushfire hazard is an essential measure for fire safety. Now I'll say that in this context, if there was one into two lot subdivision and everyone else didn't have a perimeter road it would not be reasonable for that one into two small lots to have a perimeter road.
But in the main the establishment of a new urban area would require a perimeter road that separates the bushland hazard from the residential form of development. That set of conditions don't necessarily exist for rural residential large lots development. And the reason for that is their means of accessibility into those areas is changed and is available so my argument is that perimeter roads are very important for residential areas but are not necessary for rural residential areas."
In cross examination, Dr Douglas was taken to a number of lots to the south and west of the spine road which fall away from it. The suggestion put was that while the house envelopes were accessible and near the spine road, there was no vehicle access along the line of vegetation which presents to the hazard (ie at the outer edge of the APZ surrounding dwellings). Mr Norton for Council took Dr Douglas to one of the "specific objectives" nominated at Part 5.2 of PBP: "provide access to hazard vegetation to facilitate bush fire mitigation works and fire suppression" (relevant to contention 1.10(b)(vii) at Ex 1). Dr Douglas made clear that he didn't see this requirement for access to necessarily involve a road (T 1/3/2024 26 (17-22) and (44-49)):
WITNESS DOUGLAS: "Yeah, so the provision of access to hazard vegetation I'm not sure why you seem to be focusing on the word access as meaning a road. I don't. I see access as being the physical capability of a person to get into an area. On this basis I agree with his objective, this objective which says provide access is not about - if it was to be road access it would have said provide road access."
…
WITNESS DOUGLAS: "It includes the distance that a firefighter would use from the truck with two lengths of hose and travelling to a point where it would need to provide access to the hazards it this place and the two lengths of hose are longer than the distances that we have within the APZs on this land. I accept fully it is steep land and I accept that means that there is a challenge in actually accessing it. It doesn't mean it's not accessible."
While Mr Swain agreed with Dr Douglas that hose lengths would be able to connect the firefighting equipment to the fire hazard interface, his concerns related to the particular site conditions and the operational implications. (T 1/3/2024 27 (9-21) and 30 (5-10)):
WITNESS SWAIN: "… One of the reasons and one of the benefits of having a perimeter road when you have a hazard interface operationally it's better that the perimeter road provides access for vehicles rather than having vehicles placed on an internal perimeter road and having to run hose line lengths to the hazard vegetation. What I'm saying is that you need more resources to handle that sort of situation than having a perimeter road where one or two vehicles can go up between, along the road and deal with the hazard, with the fire coming up. The other issue of course is that I take the point that Dr Douglas indicated that they can run hose lines out but we're talking about land that is in excess of 20 degrees, so we've got access issues and safety issues and he's already touched on that but my - the benefit of having a perimeter road is purely simplifying operational access for firefighters."
…
WITNESS SWAIN: "I agree with [Dr Douglas on hose length access to fire interface], the issue with me is that it's a fire operational issue. And having been in the organisation and had the opportunity to command it's better to limit the number of resources that you've got to put into the field rather than in this case there's a fire approaching this subdivision we will need an appliance on the - on the current perimeter road at adjacent to every dwelling, rather than having maybe two and then those two would then travel up and down the road to provide the service that's required to each dwelling. Commissioner it's all right to run hose lines lengths out and that's, that's a practical way of fighting fire if the fire moves then you've got to roll hoses up or cut them or disconnect them and leave them there and then move on and I've experienced that personally. So it's, it's something that's come out of my long-term management of fire in the field and command of the fire brigade."
There was acknowledgement from both experts on a primacy to the protection of dwellings, although Mr Swain argued that the responsibility was twofold in that there was a need address the fire hazard interface given it was a factor in trying to prevent the fire from crossing from the unmanaged rainforest vegetation (subject to instances of regeneration as part of the project's ecological response) in the west and north-west into the rest of the subdivision, which includes other large areas of unmanaged vegetation within it (T 1/3/2024 31 (4-11):
WITNESS SWAIN: "In between the APZs we have vegetation that comes up to the road. So if I can paint the picture, we have a fire advancing towards this precinct, the estate. We have APZs that in theory protect the buildings, okay? We have then vegetation coming up so we don't have a continuous line, a management line being a perimeter road where the vegetation comes up to. We have a perimeter road, we have vegetation, we have house site APZ, we have vegetation and so forth, so we've got this disconnected interface of the hazard."
I note here, in passing, that I understood the bushfire experts' use of the term "unmanaged vegetation" as a reference to areas not subject to APZ fuel reduction requirements. For the ecological experts in this project, the relevant on-site areas (of "unmanaged vegetation" for bushfire purposes) were often subject to significant management in regard to removal of woody weeds and regeneration of rainforest and other native vegetation as part of the proposal.
Dr Douglas attempted to capture the differences between the experts as follows (T 1/3/2024 31 (39-50) 32 (1-18):
WITNESS DOUGLAS: "Yeah. I think, I think the difference between Mr Swain and myself is also about the nature of the threat and the nature of the hazard. We're talking about rainforest. We don't need to mitigate and do hazard reduction for rainforest. It would be inappropriate to actually hazard reduce rainforest. On that basis these, these are objectives and they're very worthwhile objectives but they're not actual requirements. The second point I'd make is Mr Swain quite rightly said most of the focus would be on property protection if there was a wildfire coming to the area.
But the fire would be running downhill through a rainforest meeting a creek and then crossing the creek and if you look at those lots the flat land predominates before it starts to move up and then it moves into essentially the APZ area I don't disagree that there are areas of vegetation along that stretch of road that come up to the road but it does. But I've got to say the context of this site and the availability to actually move around the site is nothing that I see as inaccessible for people to actually get to those areas. So I don't think there's, there's operationally much difference between us but what I suspect may be a difference is the nature of the threat and the hazard that exists here."
COMMISSIONER: "For you would it be different if it wasn't rainforest, if it was a drier forest."
WITNESS DOUGLAS: "I, I still think that the access is available for people to get here but I absolutely agree that the slope makes the accessibility that little more difficult and that you would need to get - and there are driveways you can drive onto the property if you need to, I would actually argue you'd probably stay on the main road. And then you would then operationalise from those points but during a fire event it is more likely that we would be do property protection than actually trying to go down into a rainforest to try and, and deal with it."
[12]
The proposal is unsatisfactory in regard to access to the hazard interface during fire fighting
[13]
Interpretation of PBP provisions
Returning to PBP and initially Part 5.2, the "specific objective" of relevance to this exchange among the experts is:
provide access to hazard vegetation to facilitate bush fire mitigation works and fire suppression.
This objective is not related to the first of the performance criterion at Table 5.3b (reproduced at Figure 3, above), which is concerned with firefighting vehicles being provided with safe, all-weather access to structures. It is this performance criterion which provides, as an acceptable solution, that no perimeter road is required for rural residential subdivisions.
In fact, the relevant "specific objective" is not captured by the "intent of measures" which sits above each of the provisions at Part 5.3.2 of PBP.
The pertinent specific objective is not factored in, relevantly, to any of the nominated performance criteria. There is a partial reference to the specific objective in the following performance criterion:
access roads are designed to allow safe access and egress for firefighting vehicles while residents are evacuating as well as providing a safe operational environment for emergency service personnel during firefighting and emergency management on the interface.
However, the side bar indicates the reference here is to "perimeter roads", and the acceptable solutions seem to indicate the performance requirements of a perimeter road. In any event, the relevance of this performance criterion is tempered by its focus (relevantly) on a safe operational environment (rather than a "facilitative" operational environment, which seems to be the essential focus of the specific objective which I am concerned with here). Then the nominated performance criterion for non-perimeter roads is focused only on "safe access and egress for firefighting vehicles while residents are evacuating".
Notwithstanding these other provisions, the specific objective under PBP, to provide access to hazard vegetation to facilitate fire suppression, remains. As raised in evidence by Mr Swain, I also note the reference at Part 3.4, outlining a purpose of the road system as to: "to provide access to areas of bush fire hazard for firefighting and hazard mitigation purposes". The point of attention here is squarely that of ensuring access to the fire line, this as an aspect of achieving the wider intentions of PBP.
It does not seem to me that there is anything in PBP which would prevent a finding that the proposal provides insufficiently for access to hazard vegetation to facilitate bush fire suppression. Mindful of the general principles underlying PBP (p 9), the stated specific objective to "provide access" should be thought to mean a degree of access that provides for protection measures in order to reduce bushfire threat. The fact that, in this instance, it might be thought of as a (partial) perimeter road (to address the less accessible areas west of the spine road) is not prevented by the system adopted in PBP to nominate acceptable solutions to higher order objectives.
[14]
On the merits - the proposal provides insufficiently for access to vegetation hazard line for bushfire suppression
While both experts provided impressive evidence, I prefer the evidence of Mr Swain, generally, in regard to this topic. There are four related reasons. It is agreed by the experts that there would not be ready firefighting vehicle access to the fire hazard line behind a number of the dwelling footprints (ie immediately beyond the relevant APZ areas). Mr Swain's suggestion that the rolling up and down of hoses would bring operational inadequacies (in the quest to make good the ambitions to reduce bushfire threat) on this site due to the site characteristics and the particulars of the proposal is accepted. Here I note Mr Swain's drawing attention to the fact that some of the lots on the western side have steep slopes down to the creekline and significant vegetation (albeit rainforest) again on steep land beyond. In the joint report, Mr Swain submitted that Lots 6, 8, 20, 21 and 23 were unsatisfactory in regard to providing access to the firefront (Ex 5 par 50). Here I do note Dr Douglas's point that he thought there was scope for "people to actually get to those areas". When I view the constraints mapping (Ex A Tab 23), in terms of access to the hazard line, it is clear that some of the areas nominated by Mr Swain are in worse situations than others. But there are certainly substantial areas where the difficulty Mr Swain identified, relating to access to the hazard line and steep slopes, can be most readily accepted.
I note here that while the PBP objective relates to both access for hazard mitigation and firefighting, my concern here is more about the scenario of a serious active fire, and high levels of bushfire fighting activity in response. In the circumstances of this site, and in the interests of reasonable operational management of a serious fire situation, it is necessary to have a firefighting vehicle moving along or near the outer edge of the APZ beyond the dwellings. The alternative of having firefighters having to traverse steep land on foot, moving up and down to meet changing fire circumstances with long hoses is not a sufficient response.
A second reason I prefer Mr Swain's evidence is that I am not convinced that the fact that much of the unmanaged vegetation, generally to the west and north-west of the APZ lines and the creekline, within and outside the site, is rainforest, means that the hazard from this direction should be set aside. While not having the same risk profile as dryer forest, there is considerable evidence to suggest serious consideration of risks associated with rainforest fuel loads is warranted today (eg see Joint bushfire expert report in response to commissioner's question dated 17 April 2024 (JER RCQ) in particular Mr Swain's commentary at p 21-22 regarding the 2019/20 fire events including in regard to rainforest in the north coast area).
A third reason simply aligns to my earlier finding on the interpretation of PBP provisions. Dr Douglas makes reference to the position of Mr Swain, suggesting more direct firefighting vehicle access as "a worthwhile objective but not a requirement". If the suggestion there is that there is no capacity for a consent authority to require the kind of access suggested by Mr Swain, then I do not agree with that policy interpretation.
A fourth reason is that I see any problems in relation to providing this firefighting vehicle access along the otherwise riparian corridor as a constraint associated with the proposed design response to site constraints, rather than a reason not to provide what I see to be a reasonably required firefighting vehicle access to the firefront.
[15]
Bushfire risk and climate change
Some attention was given to the topic of climate change in Ex 5 (par 43). After the completion of the hearing, I approached the parties and the bushfire experts to seek further evidence and submissions pertaining to this topic in case it might be of relevance to my decision. Mindful of the quality of the evidence and submissions, I think it appropriate to give some attention to the matter here.
My question to the parties and experts was mindful of interrelated physical factors in this particular matter. These included intended long term ecological and bushfire fuel load management outcomes, within APZs, and across the wider site, often in areas of very steep gradients. It was also mindful of the applicant's response to these factors, including the proposed long term community-association based land management system over many decades to come ("in-perpetuity" in the evidence). I was interested in whether, or not, there should, in turn, be a need to factor in changing externalities over time. PBP played a significant role in establishing ground rules for the land management system. A specific question, on my part, was whether and how climate change has been factored into PBP provisions.
[16]
Expert advice
The bushfire experts, in turn, provided a response to my question which I reference above as JER RCQ (see [64]). This document comprised a brief joint report followed by individual reports as annexures (together page-numbered sequentially). The experts acknowledged the "tension and inter-relationship between climate, slopes and vegetation as they relate to the provision of APZs (par 12) but that the constituent parts to "fire danger" is "primarily fire weather driven" (according to Dr Douglas at JER RCQ p 28). They also advised that PBP does not give consideration to climate change, either in regard to strategic planning or development control provisions.
To back-up for a moment, PBP's reference to APZs is in regard to the intent to:
"provide sufficient space and maintain reduced fuel loads to ensure radiant heat levels at the buildings are below critical limits and prevent direct flame contact".
The particularly relevant performance criterion to achieve that intent is that:
potential building footprints must not be exposed to radiant heat levels exceeding 29 kW/m² on each proposed lot [also known as BAL 29].
Acceptable solutions under PBP (relating to achieving the required BAL 29 at the building) for both rural residential and residential subdivisions is that APZs are provided in accordance with nominated tables. These tables relate the following three factors: vegetation formation (eg rainforest is seen as less risky that dryer forests), slope of the site and forest fire danger index (FFDI). The RFS nominates FFDIs for groupings of local government areas (LGAs) for use in the application of PBP.
Of direct relevance to this matter, the experts agreed that the current FFDI of 80, as applying to the site (and the north coast of NSW generally), is inappropriate, albeit based on certain historical records. FFDIs (along with vegetation formation and slope) are relevant to the calculation of APZs. Dr Douglas believes the actual FFDI has likely "increased the annual exceedance probability (at the 1:50 year level) to close to or exceeding FFDI 100" (JER RCQ p 32). The evidence also indicates (JER RCQ p 31-32):
Using Coffs Harbour as an example, the FFDI for the 1:50 year annual exceedance rose from FFDI 71 in the 1972-1992 period, to an FFDI 108 for the period 1995-2015, with the highest value being FFDI 118 in the periods 1987-2007 and 1988-2008. In terms of APZs for rainforest, this could significantly increase the size of the APZ to a 3-10 metre increase over the acceptable solution FFDI 80 requirements.
Projecting forward 10 years (from 2015) to the present, the FFDI could be between 120-125 and would be a reasonable assessment for Tweed Shire.
I am aware that this localised FFDI concern has been factored into the calculation of APZs for the proposal and instead an FFDI of 100 has been adopted.
A table in JER RCQ illustrates the significance of differing FFDIs in this regard. The hub of it is that significance increases with steeper sloping land. It is notable that the slopes on the subject site exceed 20 and 30 degrees in some instances.
Figure 4 - APZ distances for FFDI 100 and 80 (source: JER RCQ p 30)
There was considerable notable material in JER RCQ. However, given my determinative finding above, this judgement is not the place for it to be further expounded upon. Briefly here, I understood both experts to hold the view that the current applicable FFDI 80 indicator for Tweed, at least, no longer reflected the current situation. Generally, Mr Swain indicated that impact of climate change on bushfire behaviour is now irrefutable and that modelling for planning purposes is not sufficiently mature to account for this change yet. Dr Douglas's evidence featured the complexity of evolving weather scenarios and associated fire behaviour change. This also highlighted the intricacies involved in developing responsive policy parameters. Dr Douglas also saw underdeveloped risk reduction opportunities in construction standards. Notably, the expert evidence also emphasised that there had been considerable attention to the impacts of climate change on bushfire behaviour in the recent past. With, in particular, the 2019/2020 NSW Bushfires Coronial Inquiry (findings released in March 2024) and relating to that unprecedented and catastrophic bushfire season, referenced by Mr Swain.
[17]
Submissions
The applicant submitted that the proposal was entirely suitable from a bushfire safety perspective given that both experts had indicated in their evidence that they were satisfied in regard to APZ provision. In relation to PBP and climate change the applicant pointed to the nominated limitations to the document. That is to say, within the document itself. PBP makes clear itself that it is involved in the balancing process involved in development evaluation and sets standards to assist this process. In its arguments to suggest a requirement for more stringent standards (than PBP) would be unreasonable, the applicant pointed to the aim of PBP (p 10):
"The aim of PBP is to provide for the protection of human life and minimise impacts on property from the threat of bush fire, while having due regard to development potential, site characteristics and protection of the environment."
Importantly, the applicant pointed to various provisions in the RF Act which already indicate a capacity to manage vulnerabilities to fire danger over time. Part 3 of the RF Act is concerned with "coordinating bush fire fighting". Section 63 was highlighted by the applicant:
63 Duties of public authorities and owners and occupiers of land to prevent bush fires
(1) It is the duty of a public authority to take the notified steps (if any) and any other practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of a bush fire on or from -
(a) any land vested in or under its control or management, or
(b) any highway, road, street, land or thoroughfare, the maintenance of which is charged on the authority.
(2) It is the duty of the owner or occupier of land to take the notified steps (if any) and any other practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of bush fires on or from, that land.
(3) A public authority or owner or occupier is liable for the costs incurred by it in performing the duty imposed by this section.
(4) The Bush Fire Co-ordinating Committee may advise a person on whom a duty is imposed by this section of any steps (whether or not included in a bush fire risk management plan) that are necessary for the proper performance of the duty.
This establishes a system where owners or occupiers of land can be required to take steps, at their cost, to prevent the occurrence of bush fires on, and to minimise the danger of the spread of bush fires on or from, their land.
The applicant also submitted that bushfire should be differentiated from, say, sea level rise (as a factor related to climate change), because of existing established policy on that topic, including "NSW Sea Level Rise Policy Statement DCCW2009B" (Applicant's submissions addressing commissioner's question par 16).
Council argued that if the Court forms the opinion, based on the evidence, that climate change impacts are engaged by a development proposal, it would be obliged to consider them in the course of evaluating it. On the basis of the bushfire expert evidence, Council submits that there is potential for future changes in climate to lead to a higher FFDI, as applying to the site, which would have the consequence that APZs would not be wide enough to provide for the BAL 29 level of protection. Council proposed an "adaptive management" approach, were a decision in favour of the application to be made. Reference was made to a number of cases where adaptive management had been recognised as a proper lawful approach to determining conditions of consent "where there is a degree of error in regard to future risk" (Respondent's response to commissioner's question par 66), including Preston CJ's findings in Telstra Corporation v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256 at [163]-[164], and Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and anor (2010) 210 LGERA 126; [2010] NSWLEC 48, at [182]-[187]. Reference was also made to Salama v Northern Beaches Council [2020] NSWLEC 140, where conditions to a consent addressed climate change related issues. In the case before me, Council proposed a consent condition, which I will not reproduce here due to its length, but I understood to essentially require that after 20 years a qualified expert would undertake reviews of APZs in regard to whether BAL 29 levels were still achieved. If not, measures would be required to meet BAL 29. Increases in APZ areas was one response. The possibility of enhancement of construction in response also seemed to be a consideration.
The applicant was entirely against such conditions, indicating to adopt such an approach was not required on the merits and would provide for an inappropriate time-limited consent and lack of finality, among other concerns.
[18]
Consideration
As indicated earlier in this judgment, there is a determinative bushfire-related concern with this application. It relates to not providing adequately for access to hazard vegetation to facilitate bush fire suppression. I do not rely on the considerations relating to climate change in my findings here. That said, it does seem reasonable to make some brief comments in relation to the topic given the extent and quality of evidence and submissions.
I would first highlight the importance of policy documents such as PBP in providing for a level of clarity, predictability and consistency in the system for the evaluation of development applications. These kinds of policy documents cannot be expected to be perfect. As the applicant indicates, a degree of uncertainty relating to the bushfire risk management is already documented in PBP itself.
In regard to the applicant's submissions that there is no parallel bushfire-related policy instrument to NSW Sea Level Rise Policy Statement, I note that there seems to be a recognition of the topic of climate change adaptation generally in government policy (noting the 2022 publication, NSW Climate Change Adaptation Strategy which makes reference to climate change impacts in NSW including in regard to bushfire (p 7)). Generally, it seems fair to understand that policy makers are working towards climate change adaptation policy to reduce impact on climate change on existing and future development. The bushfire experts advise of a current review of PBP. They were uncertain whether this review was intended to factor in climate change. They did not indicate any knowledge of the review of any localised FFDIs, which appeared on the evidence of the experts (and reliant on localised empirical weather data) to provide a less intricate policy challenge.
As indicated in my question to the parties and bushfire experts, the interest here in relation to APZ widths, mindful of climate change, in development application evaluation should not be at the minutiae, say a metre here or there. Modelling will introduce such errors in any event. The concern relates to whether and how more significant systematic effects, ultimately relating to safety of persons and property, might be factored into development application evaluation. Council's suggestion of adaptive management related conditions of consent seems to me to have some potential. The Court has used such approaches in the past. It is also important to note the applicant's arguments that adaptation to change is already available in the bushfire management system through the non-DA related provisions of s 63 of the RF Act. Whether these particular RF Act provisions, and the associated operational response, has been designed with the systematic effects of climate change in mind was not made clear.
[19]
Ecology and biodiversity impacts
In my opinion the most significant concern raised in relation to this topic by Council was that the form of the development does not demonstrate sufficient response to threatened species on the site.
[20]
Policy
The Biodiversity Conservation Act 2016 (BC Act) is a central point of attention with respect to this topic. In this instance a biodiversity development assessment report (BDAR) has been prepared, perhaps among other reasons, because more than the minimum nominated requirement for native vegetation will require clearing, exceeding the biodiversity offsets scheme threshold (Applicant's closing submissions filed 13 May 2024 par 89).
Once a BDAR is required, the consent authority must consider the likely impact of the proposed development on biodiversity values as assessed in the BDAR. Council also points out that under s 7.13(6) of the BC Act, and while under no obligation to go beyond the BDAR in considering impact on biodiversity values, a consent authority may still decide to do so (RCS par 100):
The BC Act does not foreclose consideration of matters beyond the BDAR itself.
It seemed to be agreed by the experts that the content requirements of the BDAR, in relation to the biodiversity assessment method, were generally met and the calculated biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values were correct and were relevantly included in proposed consent conditions.
A further policy instrument of relevance in the proceedings was TDCP Section A19 entitled Biodiversity and Habitat Management. Among other things it seeks to:
Provide guidance on acceptable measures to avoid or minimise the impact of proposed development on biodiversity including for proposals affected by Part 7 of the Biodiversity Conservation Act 2016.
Mindful of s 7.13(6) of the BC Act, Section A19 of TDCP indicates that the BC Act "enables Councils to determine their own standards to avoid or minimise biodiversity impacts". In that sense the provisions of Part A19 are intended as Council's advice "to inform the selection of measures that may be taken to avoid or minimise impacts of development" (RCS par 107).
[21]
Evidence
I understood, Dr Henderson to have concerns on three fronts with regard to this topic. The first two related to certain specific threatened species groupings, the third related to the general topic of accommodating red flag requirements under TDCP.
A considerable degree of attention was given in the evidence to the threatened plant species Lepiderema pulchella (Lepiderema). The selection of building envelopes, access and service areas has sought to avoid the Lepiderema but there are large areas of Lepiderema proposed within APZs (an area of fire fuel load management). Dr Henderson and Mr Swain were both concerned about the practicality of this and that plants may be damaged in clearing for the establishment of APZs.
The proposal would also result in the loss of a portion of endangered Brushbox-Camphor community (PCT 1073) which is Koala habitat. Out of an area of 2.42ha some 0.43ha would be lost. I understood Dr Henderson's particular concern here was that this community had the highest vegetation integrity score on the site. It seemed that part of this 0.43ha was required for APZ purposes. I thought Dr Henderson's argument to be that if the two allotments associated with these APZs were not subdivided (and the land allocated as part of the Community lot) then a significant portion of the 0.43ha loss would be avoided.
Generally, Dr Henderson felt that insufficient regard was had to the red flag areas under TDCP which I will come to further below.
I understood Dr Robertson to acknowledge each of the points of Dr Henderson but that his view was that the overall ecological and biodiversity outcome was very positive.
[22]
More positive than negative ecological and biodiversity outcomes
I note the applicant's concern that it would be inappropriate to place too much store in TDCP's red flag provisions. Of note to me was the applicant's reference to the, perhaps, coarse grain of the red flag system of ecological setbacks, when compared to the more sophisticated approach adopted in the BDAR. I also note Council's position that it was not seeking strict compliance with the red flag setbacks (which would be particularly restrictive) but rather more attention to them.
While it is not the only matter warranting attention here, on reflection it would have assisted me to understand better Dr Henderson's position on the overall biodiversity outcome that the proposal brings. Here I am mindful of the provisions of TDCP Part A19 which ask a similar question. That is to note one of the objectives of the development envelope controls at section 2 is to
Provide additional flexibility where improved biodiversity outcomes are assured.
The associated acceptable solution seems to be at C26 as follows:
C26. Other acceptable solutions may be appropriate (including any variations relating to development controls contained in Part C) but the applicant needs to demonstrate that:
a) a clearly equivalent or superior long-term ecological outcome can be assured; and
b) the variation is consistent with all relevant planning principles and objectives of this Section of the DCP.
What I do find is that I have considerable support for Dr Robertson's arguments on that front. Clearly it is a negative aspect of the proposal that it would bring high vegetation integrity Koala habitat loss (albeit with associated offsetting), rather than conserve this habitat in situ. Here I note the biodiversity mitigation hierarchy under the BC Act and the priority to "avoidance". I would also think, as I believe Dr Robertson acknowledged, that it would be most difficult to retain Lepiderema within APZ areas to the extent envisaged, especially on the steep ground. I am not sure if this is a point of concern with offsets as proposed, noting Dr Robertson's change of view that in fact there had not been a factoring in of expected lost Lepiderema associated with APZ management. But generally, I am less concerned in regard to Lepiderema and accept Dr Robertson's evidence in regard to likely future propagation, especially outside of APZ areas within community land. More broadly, I accept the evidence of Dr Robertson that the proposal would bring a significant ecological and biodiversity benefits associated with the removal of woody weeds and regeneration of rainforest. When the considerations are balanced, it seems to me the proposal would bring more positive than negative ecological and biodiversity outcomes.
[23]
Other matters
Here I consider some other Council contentions along with a further relevant point raised in the applicant's evidence and submissions.
The two other Council contentions I mention briefly here relate to the proposal's implications for an established regional wildlife corridor and Council's proposed future road network extensions. In regard to the wildlife corridor, I note its broad scale and generally do not see the proposal, noting its substantial native vegetation regeneration aspects, as bringing a significant adverse effect. The Tweed Road Development Strategy 2017 identifies two proposed future road network extensions: the Piggabeen Road to McAllisters Road extension, and the McAllisters Road extension to Scenic Drive. No acquisition provisions are in place. While on occasion, development proposals will seek to accommodate such infrastructure proposals through detailed design, in this instance this has not occurred, something which might be thought to reflect the site constraints and tight available areas for dwelling pads. However, this is not a reason to refuse a development application. Rather there are other statutory provisions relating to land acquisition which would come into play should the road extension proposals advance.
A point raised on the applicant's side warrants some attention. A number of the experts appointed by the applicant pointed to the site zoning as a justification for the development generally. I do note the proposal's capacity to address the first R5 zone objective and provide residential housing in a rural setting. In a sense in line with this, the applicant made reference to the findings in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399, (BGP) [117]-[119], including that "planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted", and that: "(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".
There are two responses to the applicant's arguments in relation to BGP. First, I note that the zoning permits a wide range of uses beyond rural residential. Second, it seems to me BGP makes clear that if there are concerns with this proposal in regard to impacts on such things as safety (notably here in regard to occupants and firefighters) along with fire damage of property, or indeed if there were found to be critical adverse ecological or biodiversity impacts, the zoning of itself should not be seen to trump such concerns.
[24]
Conclusion
To draw a conclusion in this matter requires the weighing up of both positive and negative implications.
There are positive aspects of the proposal. It is the case that the proposal would provide residential housing in a rural setting. Although I note the residential housing would be limited to some 21 homes. I have also found that, on balance, the proposal would bring more positive than negative ecological and biodiversity outcomes, although these benefits are tempered by some direct loss of relatively high quality habitat.
It is my finding that these beneficial outcomes cannot be seen to overcome the serious adverse aspects of the proposal relating to bushfire risk management. As I outline above, the proposal brings a serious deficit in regard to providing access to hazard vegetation to facilitate bush fire suppression. The concern is fire paths in favourable weather conditions spreading from the forest areas to the west and north-west (both within and outside the site) introducing fire hazard lines along certain steep areas of this site on the western side of the spine road. It is essential for this access (ie beyond the APZ to the vegetation fire line) to include access for firefighting vehicles. This is a determinative factor in the evaluation of the proposal. A further significant negative aspect of the proposal also concerns the site topography. The spine road design would involve substantial breaches of controls for retaining walls and associated structures under TDCP, which have a signficant relationship to risk of failure and repair timelines. The associated user consequences of road failure are severe due to the fact that there is only one safe access into/out of the site for future residents.
Based on the reasoning in the preceding judgment, it is found that the proposal does not warrant the grant of consent.
There is a requirement for certain procedural orders, essentially agreed between the parties, relating to the amendment of the development application which I make below. To the extent it is relevant I find that the amendments are not minor, in turn it would seem necessary for the associated costs order to be made.
[25]
Orders
The Court orders that:
1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Tweed Shire Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant further amending Development Application 21/0404 such as to accommodate the plans and documents as set out in condition 1 of the draft conditions of consent as filed with the Court on 27 May 2024.
2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that were thrown away as a result of amending the development application as agreed or assessed.
3. The appeal is dismissed.
4. Development Application 21/0404 for a rural residential community title subdivision at 67 Scenic Drive Bilambil Heights, which is Lot 7 in DP 853589, is determined by refusal of the grant of consent to the application.
5. The Exhibits are returned, except Exhibits 1, 14, A, C and H which are retained.
[26]
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: 29 November 2024
Parties
Applicant/Plaintiff:
Bird in the Hand 1 Pty Ltd
Respondent/Defendant:
Tweed Shire Council
Cases Cited (9)
Local environmental planning instruments
The major portion of the site is zoned R5 - Low Density Residential under Tweed Local Environmental Plan 2014 (TLEP). There are two pockets of R1 General Residential zoned land under TLEP at the north-eastern and north-western corners of the site. An older instrument, Tweed Local Environmental Plan 2000 continues to apply to a triangular portion of the site near the western boundary which is zoned part 7(d) Environmental Protection and part 1(c) Rural Living under that instrument. The entirety of this area affected by Tweed Local Environmental Plan 2000 forms part of the proposed community lot. The parties agree that no subdivision occurs in this area. I refer here to the parties agreed further submissions filed 18 August 2024, referencing Hood Rural Resources Pty Ltd v Bathurst Regional Council [2009] NSWLEC 1366 at [48] and Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 at [78]. Generally, there is no dispute that the proposed subdivision is permissible in these zonings.