CBD Prestige Property Holdings Pty Limited v Hornsby Shire Council

A fire trail runs along a portion of the southern side of the creek connecting the end of Stokes Avenue with a right of carriageway that connects to the Leighton Place industrial complex to the south.

Adjacent to the site are: - public parkland known as Mills Park - to the north; - the residential land at the end of Stokes Avenue and another area of public bushland - to the west; - the F3 Freeway linking Sydney with the Central Coast - to the east; and - industrial land comprising the Leighton Place estate - to the south.

The site is zoned Residential A, in part, and Open Space (Public Recreation), in part, by virtue of the provisions of the Hornsby Local Environment Plan 1994 (the LEP).

On my calculation, although nothing turns on the precision of this information, some two thirds of the site is in the open space zone and that falls within two elements of the site.

If one were to draw a north-west to south-east diagonal line across the site, virtually all of the north-eastern triangle thus formed is zoned open space as is a small, also generally triangular, area in the south-western corner.

The remainder of the site is zoned residential. Pursuant to cl 7 of the LEP, subdivision is permitted with consent in the residential zone whilst, in the open space zone, the developments which are permitted (relevant to this application) are: - without development consent - bushfire hazard reduction; and - with development consent - dams (this being a matter of construction of the term in light of the facts of the application - as raised by Mr Wilson, counsel for the applicant).

I had the opportunity, during the course of the day yesterday, to inspect the site with the legal representatives of the parties; one of the court appointed experts and a number of the expert advisers to the parties.

I also heard informal evidence given by resident objectors to the proposal during the course of the view.

At the commencement of the view, I raised with the representatives of parties a number of matters of concern that arose out of my reading of the papers in preparation for the case.

The principal one of them is the question of whether or not the operation of cl 6 of State Environmental Planning Police No 19 Bushland in Urban Areas (SEPP 19) renders this proposal impermissible.

As a consequence of that discussion on the view and after consideration by the parties overnight, the parties have agreed that I should determine that issue as a preliminary matter in order to obviate the necessity (if such finding were against the applicant) of further taking up of time of the Court and of unnecessary cost to the parties.

It is appropriate, at this stage, to describe the three elements of works that need to be considered against the provisions of SEPP 19.

The first of those is the proposed bushfire hazard reduction which, relevantly, for the purposes of the evidence and observation on the site, falls in two locations.

During the course of the view, I walked the existing fire trail and paused at two locations where there are turning points for vehicles - presumably for fire tankers - located on the fire trail.

At the more easterly of those two points, which is at a location toward the boundary in the south-eastern corner of the site, I looked down into the bushland area, toward the east and to the north-east of that location, proposed for hazard reduction as part of the subdivision application.

That bushland is entirely within the open space zoned area.

Second, also within the open space zoned area, are a number of proposed fire trails in that south-eastern quadrant. They are two proposed fire trails linking each of the internal access roads to the proposed perimeter fire trail. This latter fire trail is proposed to run in a generally northerly direction from the southern boundary, before it sweeps round past the proposed water quality control pond before returning to the internal roadway prior to joining Stokes Avenue.

The other area in the site that is similarly affected by fire trail construction and by bushfire hazard reduction as part of the subdivision application, to the details of both of which I will return shortly, is the generally triangular element in the south-western corner of the site.

The finalof the three elements of works that need to be considered against the provisions of SEPP 19 is the proposed water quality control pond.

At approximately the midpoint of the site, almost at its eastern boundary, this pond is proposed to be constructed. This pond will be a substantial structure with gabions on its perimeter of ~ 3 m in height on the northern side and up to 4.5 m in height on the southern side.

Although not a matter of precise measurement, ~ 6000 tonnes of material will require to be excised from the site by excavation for the construction of this structure.

Also requiring excavation as part of these construction activities will be a significant amount of cut and fill associated with various elements of the proposed fire trails.

I turn, at the commencement of this consideration of the issues, to set aside one matter raised by Mr Tomasetti, counsel for the council. Mr Tomasetti asked me to have regard to the fact that the proposed activities would take place on land which, if the applicant were to exercise its right pursuant to cl 17 of the LEP, the council would be required to acquire - namely that portion of the site zoned as open space.

Mr Tomasetti invited me to assume the inevitability of the portion of the site zoned as open space passing into public ownership and therefore giving rise to an implied conflict with matters dealt with by Talbot J in Scott Revay & Unn v Ku-ring-gai Council (1994) NSW LEC 112. I am satisfied that, as there is no suggestion that the applicant has triggered the acquisition process or, indeed, proposes to do so, I need not have any regard to treating the land as comprising two separate sites or as future public open space (with respect to the open space zoned element).

Clause 2 of the policy sets out its aims and objectives.

The broad aim is to protect and preserve bushland within urban areas and it applies to land set out in sch 1 to the policy. It is not disputed that sch 1 includes the site.

Clause 2(2) sets out a variety of specific aims, all of which are linked to and integral with the objective of preservation of urban bushland.

Clause 5 is a paramountcy provision which effectively means that this policy will prevail over any other planning instrument (whether made before, on or after the relevant date) if there is a conflict between SEPP19 and such other instrument.

The critical provisions in this appeal are contained in cl 6. Clause 6(1) provides that "a person shall not disturb bushland zoned or reserved for public open space purposes without the consent of the council".

However, cl 6(2) contains a number of exceptions to this requirement for consent. No development consent is necessary in a limited number of circumstances - the relevant one of which in these proceedings is in cl 6(2)(a) where works which will disturb bushland may be carried out, without consent, for the purposes of bushfire hazard reduction.

Mr Wilson put that the appropriate way to characterise all the works in the application to be carried out on open space zoned land is that they are for bushfire hazard reduction and that, as a consequence, development consent is not required for them.

He put that, with respect to the disturbance other than for the water quality control pond structure, this is simply bushfire hazard reduction simpliciter and that, for the water quality control pond structure, it has, as an integral and essential component, an element of making water available for bushfire fighting purposes - there being proposed to be a considerable standing volume of water contained in that structure. If not, he said, it is permissible, with consent, as it is a dam.

The question of how to characterise the activities arises because the council says, through Mr Tomasetti, that, effectively, the totality of the activities are a subdivision and that these aspects are merely subsumed elements of a development application for subdivision on the residentially zoned land.

I am satisfied, in this regard, that the council's submission is correct.

I am satisfied on the basis of the decision to which I was taken by Mr Tomasetti of Glass J in Food Barn Pty Limited v The Solicitor General (1975) 32 LGRA 157 at 161 and, more recently, dealt with by Talbot J in Pallas Newco Pty Limited v Votraint No 1066 Pty Limited & ors (2003) 129 LGERA 234. In Pallas Newco, his Honour, quoting Glass J in Food Barn, at para (10) on p 238, and concludes that, if there are two uses running in parallel then they can be separate uses but if one of them is totally subsumed by and merely an appendage to the other, rather than being a separate but subservient use, then all of the activities should be characterised as being together a single use.

Mr Wilson asked me to draw a contrary conclusion by having regard to Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202.

I am satisfied in Argyropoulos that the road that was applied for across the relevant residentially zoned land was capable of being regarded as a separate and distinct use.

The element that Mr Wilson takes me to in this proposal of the water quality control pond is not applied for as a dam which is a permitted use but is applied for, I am satisfied, an essential, somewhat minor and merely ancillary activity of the proposed subdivision application. It is not something which is incapable of relocation or being given effect at some different location whereas, in the case of Argyropoulos, the property would not have been able to have had access without the separate and necessary road element.

I turn to consider the nature of the construction activities and their testing against cl 6 of SEPP 19.

I turn first to the proposed bushfire hazard reduction activities.

When I was standing in the turning circle at the eastern end of the fire trail, looking toward the north-east, it was the agreed evidence of Mr Rose, the applicant's bushfire adviser, and Mr Swain, the council's bushfire adviser, that, for the very large part, the particular quadrant of the site to which I was having regard would be cleared in a fashion which, for approximately fifty percent of it, would have: - no vegetation understorey retained; - apart from a number of recruitment trees necessary to maintain forest diversity, no trees that had a trunk diameter less than 150 millimetres at 1.5 metres above the ground; and - for a number of the more substantial trees, significant pruning above that height so that there was no interconnection in the canopy.

In the remaining portion of that part of the site , the same regime would apply, save that there would be no necessity for the pruning in the canopy but the same understorey and mid-storey clearing would take place. There would also be the substantial construction of the proposed fire trail elements to which I earlier adverted.

I asked three questions of Mr Rose and Mr Swain, at this location, with respect to the hazard reduction that was proposed as part of this application.

First, I asked would that hazard reduction, for that portion of the site, provide a benefit for the structures and public recreation areas at Mills Park to the north. I was advised that it was their agreed position that it would not.

Then, I asked whether the hazard reduction would provide a benefit to the residences at the eastern end of Stokes Avenue and I was advised that it was their agreed position that it would not.

Finally, I asked the same question with respect to the industrial structures to the south and I was advised that it was their agreed position that perhaps a minor element along or in the vicinity of the southern boundary of the site would provide some benefit. On my assessment of what I was told, I also understood that the very great portion of that hazard reduction activity would have no benefit to the industrial area to the south. They did not suggest that there would be any other present hazard reduction benefit.

A similar, but to a lesser extent, conclusion I draw with respect to the proposed hazard reduction in the south-western corner of the site.

There is an existing fire trail through the site and nothing was put to me that would cause me to conclude that the additional fire trails which are proposed to be constructed through the site are necessary extensions to the existing fire trail.

With respect to the water quality control pond, I asked Mr Young, an ecological adviser to the applicant, and Dr Peter Smith, an ecological adviser to the council, what were the benefits, if any, in an environmental sense, for the existing bushland from the construction of the water quality control pond - it being the on-site evidence that the stormwater from the Stokes Avenue dwellings that would otherwise carry down the creek and into Cockle Creek and the Hawkesbury catchment would be diverted into the proposed water quality control pond.

Dr Smith's evidence given on site was that there would be some modest environmental benefit but that, in his view, it was not significant. On the other hand, Mr Young put a higher order of environmental benefit.

In this regard, Mr Wilson has invited me to have regard to the provisions of Sydney Regional Environmental Plan No 20, Hawkesbury Nepean River No 2 1997 (SREP 20). SREP 20 has a range of specific planning policies and recommended strategies; one of which is to ensure that water quality, if possible, is improved as a consequence of any development activity undertaken in the catchment. Mr Wilson invited me, on the basis of both Dr Smith and Mr Young's evidence, to accept that there would be an improvement in the downstream water quality as a consequence of the construction of the proposed water quality control pond. I accept their evidence that there would be such an improvement (although they differed as to its extent).

I put a question to Mr Wilson relating to the objects contained in cl 5 of the Act. I asked him, in light of the provisions of s 5(a)(ii), being the object of the Act "to encourage the promotion and coordination of the orderly and economic use and development of the land" that, when coupled with the matters discussed by McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council 138 LGERA 237, at 262 para (117), that there is, in general terms, a presumption in favour of development for a purpose for which such development is permitted in a zone, whether development in the open space, or more correctly, a refusal to permit development in the open space zoned land would constitute a sterilisation of the land.

Mr Wilson properly and correctly conceded that, if I were to hold that SEPP19 prohibited the present application, such a determination would not have the effect of sterilising any development for purposes consistent with its zoning on the residentially zoned land.

At this point, I interpolate that I am determining the acceptability or otherwise of the present application and, particularly, its activities on the open spaced zoned land. I am not determining, in absolute terms, whether or not any development might be permissible in the residentially zoned land. It would be inappropriate if I were to offer gratuitous comments on or speculate about other possible developments not before me [see the comments of Bignold J in Manzie v Willoughby Council (1996) NSWLEC 26].

I am satisfied, as a consequence of the information given to me by Mr Rose and Mr Swain on site, that there is no present bushfire hazard reduction benefit that would bring the present application within the exception contained in cl 6(2)(a) of SEPP 19.

I so conclude because there is no bushfire hazard reduction benefit of any significance to existing development and, indeed, the proposed bushfire hazard reduction must therefore be regarded as, virtually in its entirety, attaching to and being subsumed in the present subdivision application on the basis of the characterisation to which I earlier referred.

A similar position applies, in my view, to the water quality control structure in that it cannot be regarded as being for the purposes of bushfire hazard reduction.

It may have an ancillary or incidental benefit in that regard but it is certainly not the purpose for which it is proposed to be constructed.

I must, therefore, test the totality of the activities against the requirement that all of the proposed activities in the open space zone cannot be conducted without consent. Consent can only be granted if the provisions of cl 6(4) are satisfied. This reads: (4) A consent authority shall not consent to the carrying out of development referred to in subclause (1) unless: (a) it has made an assessment of the need to protect and preserve the bushland having regard to the aims of this Policy, (b) it is satisfied that the disturbance of the bushland is essential for a purpose in the public interest and no reasonable alternative is available to the disturbance of that bushland, and (c) it is satisfied that the amount of bushland proposed to be disturbed is as little as possible and, where bushland is disturbed to allow construction work to be carried out, the bushland will be reinstated upon completion of that work as far as is possible.

I have presumed, with respect to cl 6(4)(a), that there has been an appropriate consideration of the need to protect and to preserve the bushland but that would be dealt with in evidence that is not before me for the purposes of my consideration of the very narrow compass of matters contained in cl 6(4)(b). That provision requires that I must be satisfied that a disturbance of the bushland meets a number of discrete criteria. They are: - that the disturbance is essential, - that it is for a purpose in the public interest; and - that no reasonable alternative is available to that disturbance.

All three of those are in the conjunctive and not in the disjunctive and, thus, all must be met.

I am satisfied, as a consequence of the conclusions I have reached, from the evidence of Messrs Rose and Swain, that there is no public interest in the bushfire hazard reduction activities proposed to be undertaken at the eastern end of the site. I have so concluded as a consequence of their evidence about no significant benefit for the protection of existing structures or habitation arising out of these bushfire hazard reduction activities.

I am satisfied that the disturbance of the bushland is only essential for the purpose of subdivision of the land; a purpose which will not be frustrated, in a more limited sense, if the subdivision and any activities associated with it, if there were to be a subdivision, were required to be confined in their entirety to the land which is presently zoned for residential purposes. I am satisfied that there is no present public interest of any relevant significance in that bushfire hazard reduction.

If I be wrong about that, I am not satisfied, and could not be satisfied, that some development taking place on the land which is presently zoned for residential purposes would not have available to it a reasonable alternative which would not involve disturbance of the bushland in the area zoned for public open space.

The question of what might be public or essential were the subject of submissions by Mr Tomasetti taking me to a number of authorities. Given the conclusions that I have reached, I do not consider that I need to go other than to questions of first principle, from the face of the evidence, to deal with those matters.

However, the position is a little more clouded with respect to the water quality control structure because I have concluded, taking the evidence of Mr Young at its highest, and, if I were to prefer it above the evidence of Dr Smith, there may be some, limited public interest in the creation of the water quality control pond structure.

However, I am not able to be satisfied that it is essential, in the public interest, that that structure be used to obtain the benefit that would flow from it.

I reach that conclusion because there is certainly an area available within the unformed Chelmsford Road road reservation where alternative and less intrusive structures might be able to be constructed - but options about which I have no evidence.

Indeed, I am also satisfied that the degree of disturbance that would be required by the removal of some 6000 tonnes of material and the construction of the gabion walls is entirely disproportionate to any benefit that might be obtained either in the reduction of weed infestation of the creek zone or by the achievement of improvements in downstream water quality consistent with SREP 20. 75. As a consequence of those conclusions, I am satisfied that the various activities that are proposed to be carried out in the public open space zoned land are not able to be sustained pursuant to SEPP 19.

76. Indeed, I am of the view that the provisions of cl 6(4)(b) have always been a fatal and unable to be overcome impediment to this proposed development and that it was doomed, as a futility, from its beginning as a result of that.

77. The result must therefore necessarily be that the appeal is dismissed--

THE FOLLOWING EXCHANGE THEN TOOK PLACE: WILSON: Well I'm not sure of that. Just before you get to the last - because if you say those words I take it you're intending that they be an order.

COMMISSIONER: I'm certainly proposing to issue orders.

WILSON: Yes. I am not certain, as a consequence of what you say Mr Commissioner, whether it is appropriate to consider, in the context of this application, an amendment which does not impinge. Now there's a wide power under 55 and there are limitations, of course, on the exercise of that power. I would like the opportunity to get some instructions in that regard but I must say, as I sit here and listen to your judgment, I would apprehend that a dismissal would be the likely result but I don't know that clearly yet so I would ask that you hesitate at this point of time to dismiss the appeal and allow me that opportunity to talk to my client regarding your judgment. There was one other matter regarding your judgment that I would like to ask the question, with your permission.

COMMISSIONER: You can ask the question. I'll decide whether I'll answer it or not.

WILSON: Indeed. I apprehend from your reasoning that you have characterised both the water quality control pond and the bushfire hazard reduction, including the fire trails, you have characterised all of those activities as residential subdivision.

COMMISSIONER: --a residential subdivision development application.

COMMISSIONER: Mr Tomasetti what do you say to the application that's just been made.

TOMASETTI: My friend hasn't indicated how long he requires. From my understanding he's seeking 15, 20 minutes or something like that to get some instructions.

WILSON: I'm not sure of that because I'd certainly like to digest it. It's Wednesday, I was thinking about Friday and simply notifying the court by e-callover or even by telephone.

COMMISSIONER: Well can I - I propose to say something then I propose to take a short adjournment to enable you both to consider what I am about to say.

There are two concerns I have about that course of action Mr Wilson; the first one is that on 26 September Pain J refused an application to amend what, on my understanding of it, would have been a much more modest application to amend than that which would necessarily follow from my decision which is effectively that the entirety of the development, except for a de minimis extent, be confined within the perimeter of the 2A zoning. That's the first concern that I have.

The second concern that I have is this, that even if that were not an impediment there's a decision I've given (and I confess I can't even remember the name of my own decision now in this regard involving a Ku-ring-gai council matter [ see Red Sea Investments Pty Limited v Ku-ring-gai Council (No 2) [2005] NSWLEC 490 ] ) which involved an application after I had given an extemporaneous decision and before I had perfected orders about whether I should exercise a discretion to permit a re-opening to amend. I set out in that the relevant High Court decision as to why it would be inappropriate to do so. Now what I would propose to do now is I propose to adjourn, till say 3 o'clock and in the meantime I will find that Ku-ring-gai judgment and I will provide you and Mr Tomasetti with a copy of it. I'll adjourn till 3 pm.

WILSON: Thank you for the decision. I've got to say I haven't digested it because I didn't think I had to go to it in circumstances where I think if you had proceeded with the judgment you would've proceeded to dismiss the appeal. That's the only way I think the matter can go.

COMMISSIONER: All right. The orders of the court in this matter will be that the appeal is dismissed. The exhibits 1 and A will be retained. Exhibit 2 will be returned and I will have the court officer give the parties the remainder of the material.

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