Cecil D Barker & Co v Blue Mountains City Council

Cecil D Barker & Co v Blue Mountains City Council - [2001] NSWLEC 244 - NSWLEC 1998 case summary — Zoe

[52]

10.5 Environmental Impact (a) The Council shall not consent to development unless the development - (i) incorporates measures specified in accordance with any Development Control Plan that shows requirements for erosion and sedimentation control, and (ii) avoids unnecessary clearing of indigenous plants, and (iii) minimises site disturbance and soil erosion, and (iv) where the development is for the purposes of a dwelling, minimises 'cut' or 'fill' or both as far as is practical and contains such 'cut' or 'fill' or both within the dwelling where conditions allow, and (v) incorporates best practice water management techniques to protect the surface and groundwater regimes and water quality for the site. (b) Where land on which development is proposed has been cleared, the Council shall not consent to development unless it is to take place as far as is practicable within the cleared area. (c) The Council shall not consent to development unless the bushfire protection measures required to protect the land to be subdivided are contained within a perimeter road or the boundaries of the property to be subdivided, and do not have any adverse environmental impact on any water supply catchment area or any development excluded land. (ca) The Council shall not consent to development, other than subdivision, unless the development: (i) incorporates effective measures, within the boundaries of the lot concerned, and satisfactory to the Council, to protect the development from bushfire; and (ii) mitigates the adverse environmental impacts of those measures to the maximum extent practicable. (da) The Council shall not consent to development for the purposes of a dwelling house, or to development ordinarily incidental and ancillary to a dwelling house, on any lot created otherwise than in accordance with clause 34.1(c), unless the development incorporates effective measures, satisfactory to the Council, to ensure that the development has no significant adverse environmental impact on: (i) any environmentally sensitive vegetation unit (as listed in Schedule 3); and (ii) any rare or threatened species of flora or fauna or its habitat and any unusual plant community; and (iii) the hydrological aspect of the locality; and (iv) any, lake, lagoon, or perennial or non-perennial watercourse; and (v) any significant natural feature, including any rock outcrops, rock ledges and cliffs. (db) The Council shall not consent to development, other than development referred to in clause 10.5(da), on any lot created otherwise than in accordance with clause 34.1(c), unless the development incorporates effective measures, satisfactory to the Council, to ensure that the development has no adverse environmental impact on any development excluded land. (dc) The Council shall not consent to any development (excluding a work for the purpose of providing public utility services), proposed to take place either wholly or partly on development excluded land: (i) located within any lot created in accordance with clause 34.1(c); and (ii) identified when the Council granted consent to the subdivision by which the lot concerned was created, unless the Council is satisfied, by means of a detailed environmental assessment, that the development has no adverse environmental impact on the development excluded land concerned. (e) Land which is steeper than 33% (1 in 3) shall for the purpose of this Plan be deemed to be a Protected Area - Environmental Constraint Area. (f) The Council shall, when considering an application to carry out development on land in Residential Bushland Conservation zone which is adjacent to land within the National Park zone, make an assessment of the impact of that development on the aesthetic, historical, natural, scenic and scientific attributes of the land within the National Park zone. 44. Clause 10.9 deals in some detail with limitations on building site cover.

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In the body of that report, Kennan comments: 4.7 The Statements of Evidence relating to flora and fauna, the provision of engineering services, and soil and water management have been filed with the Court with the general conclusion that the proposed development: · will have a significant and adverse impact on the significant vegetation on the Site; · does not provide for sufficient buffers to the significant vegetation units; · does not provide for sufficient buffers to the watercourse below the Site; · will not provide an adequate buffer between the development area and an important patch of Powerful Owl habitat; · will result in bushfire management practices which will clear large areas of vegetation, some of which is significant vegetation; · will result in adverse impact to the rare species of flora Amperea xiphoclada variety papillata, and · will not encourage the re-establishment of bushland areas. … 4.12 The contents of my original Statement of Evidence, and the Statements of Evidence prepared by other experts, support the conclusion that the proposed development will not meet the various requirements imposed by sub-clause 10.5 of LEP, 1991. In particular, the comments of Drs Smith concerning the impact of the proposed development on: · Amperea xiphoclada variety papillata, · Powerful Owl habitat, and · Blue Mountains shale Cap Forest and Sydney Coastal River-flat Forest are of concern. 4.13 The provision of underground services and the construction of the access road will have a significant impact on the integrity of many of the natural features of the Site. The potential impact on these natural features has resulted from poor design of the subdivision and indeed the approach adopted by the Applicant which seeks to maximise lot yield from the Site with little or no regard for the environmental consequences of that development. 4.14 With regard to sub-clause 10.5(c) of LEP, 1991, as amended by Amendment 25, the development relies upon a perimeter road for bush fire protection. That perimeter road will be constructed in large part on land which is zoned Environmental Protection and is thus development excluded land. The Statements of Evidence of both Mr Koen and Mr McVey have demonstrated that a significant level of engineering works will be required to effect the construction of the proposed perimeter road. I am of the opinion that such engineering works will have an adverse environmental impact on the development excluded land and as such do not accord with sub-clause 10.5(c). … 4.23 The Amended Plan retains substantial sections of the access road and its associated cut and fill located within the EP zone and will require construction on land which contains significant numbers of Amperea xiphoclada variety papillata (development excluded land) with commensurate impacts on the environment which that zone and sub-clause 10.5 have been designed to protect. 4.24 The location of the proposed building envelopes in close proximity to the EP zone will mean that bushfire protection measures will be employed in close proximity to or within that EP zone. Many of the proposed building envelopes also contain significant numbers of Amperea xiphoclada variety papillata. I am of the opinion that such a development proposal has had little regard to the impact it will have on either the environment of the EP zoned land or the significant numbers of Amperea xiphoclada variety papillata and is completely at odds with sub-clause 10.5(c) of LEP, 1991. … 4.34 … proposed lots 7, 8, and 9, and possibly others, do not have sufficient land available to accommodate the ancillary uses which would normally be associated with the erection of a dwelling house on an allotment of land. The rear of these lots is narrow and constrained by slope and rock outcrops. These and many other lots in the proposed development are also be (sic) constrained by the presence of Amperea xiphoclada variety papillata. I am of the opinion that the design of these lots is unacceptable.

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In his report of 1 October 2001 (Exhibit C42) Kennan says, in response to Maher, inter alia: 2.7 Mr Maher, at page 4 of his Statement, provides details of the means by which the development capability of the site has been determined, and concludes that: '… the outcome being the site having a land capability of fifteen (15) lots'. 2.8 Mr Maher then translates that 'land capability' to mean that the site is also suitable for such a lot yield. Whilst it is agreed that the land capability of the site is 15 lots based on the determination of the maximum or notional lot yield contained in LEP, 1991, Mr Maher ignores the fundamental planning principal that capability does not necessarily translate to suitability. 2.9 It is a fundamental planning practice that, in the determination of the capability and suitability of a particular site for development, a number of iterations or a sieving process is undertaken. In the subject case, the first stage in the sieve process is the determination of the maximum lot yield, or the notional development area of Site. Mr Maher, correctly determines that 15 lots is the maximum lot yield or notional development area in the RES-BC section of the Site. 2.10 Having determined the notional development area of the site (15 lots), the next stage in the development process is the determination of the suitability of that section of the Site for the proposed development. It is at this stage of the development process that the site specific constraints to development are identified and the sieving process eliminates those sections of the Site which are so constrained that they are not suitable for the development form proposed, in this case subdivision and residential development. 2.11 Mr Maher has ignored the fundamental components of LEP, 1991, as amended by Amendment 25, which have been inserted into the LEP to assist the Council, or in this case the Court, in the determination of the suitability of the Site to accommodate the possible maximum lot yield of 15 lots. As noted at paragraph 3.2 of my Supplementary Statement of Evidence, one of the aims of Amendment 25 to LEP, 1991 is to: '(c ) replace the definition of "Useable Land Area" with two definitions, one relating to the area which may notionally be suitable for development, and the other relating to land that is suitable for development.'

At a glance

Court

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Before

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Judgment (192 paragraphs)

Parties

Cases Cited (4)

Cited By (2)