Dahua Group Sydney Project 6 Pty Ltd v Shellharbour City Council

Dahua Group Sydney Project 6 Pty Ltd v Shellharbour City Council - [2024] NSWLEC 1814 - NSWLEC 2024 case summary — Zoe

Nature of the appeal and the outcome

COMMISSIONER: Dahua Group Sydney Project 6 Pty Ltd, the Applicant, lodged a development application with Shellharbour City Council (the Respondent) seeking consent for Stages 5 through 9 of a subdivision known as "1881 Tullimbar". The development proposed is the further subdivision of Lots 132 and 133 of DP 1261585 (the site). The Applicant is the owner of the land and provides consent for the lodgement of the development application.
The Applicant lodged an appeal to the Court against deemed of the development application by the Respondent. A conciliation conference was held on 2 February 2024 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The parties were unable to reach an agreement at or following the conciliation. The conciliation conference was terminated, and the matter was listed for hearing.
The Registrar granted leave to the Applicant to amend their development application in May 2024. The application was further amended by consent at the commencement of the hearing.
As amended, the development application seeks consent for Torrens title subdivision to create residential 192 residential allotments, one local park lot and two residue parcels. The subdivision will be phased over 5 stages and relates to Stages 5 to 9 of the "1881 Tullimbar" development. The works include civil works associated with the subdivision including the completion of earthworks involving cut and fill with import of material from offsite, construction and dedication of roads, retaining walls, water quality basins, construction of culverts and scour protection, a park, regrading works and dedication of the riparian corridor with the road network and stormwater drainage. The works proposed in each stage is detailed below:

Stage 5: the creation of 36 residential allotments (Lots 501 - 536) and 1 parcel zoned C3 Environmental Management attached to Lot 527. Completion of earthworks involving cut and fill with export of material to future stages of the project, construction and dedication of roads, retaining walls and stormwater drainage.
Stage 6: the creation of 12 residential allotments (Lots 601 - 612) and 1 residue parcel zoned C3 Environmental Management. Completion of earthworks involving cut and fill with import of material from other stages, construction of roads, retaining walls and stormwater drainage.
Stage 7A: the creation of 48 residential allotments (Lots 701 - 748), and 1 residue parcels for future stages. Completion of earthworks involving cut and fill with import of material from other stages and offsite, construction of roads, retaining walls, a water quality basin, temporary turning heads and stormwater drainage.
Stage 7B: the creation of 4 residential allotments (Lots 760 - 763). Minor earthworks, temporary turning head removal and road and drainage construction.
Stage 8A: the creation of 71 residential allotments (Lots 801 - 871), one allotment for a local park and 2 residue parcels for future stages. Completion of earthworks involving cut and fill with the import of material from other stages and offsite, construction and dedication of roads, retaining walls, two water quality basins, a temporary turning head and stormwater drainage.
Stage 8B: the creation of 2 residential allotments (Lots 880 - 881). Minor earthworks, temporary turning head removal and road and drainage construction.
Stage 9: the creation of 19 residential allotments (Lots 901 - 919) and one residue (Lot 920). Completion of earthworks involving cut and fill with import of material from other stages and offsite, construction and dedication of roads, retaining walls, a water quality basin, construction of a culvert and scour protection, creek regrading works and dedication of the riparian corridor with the road network and stormwater drainage.

[4]

Issues

The Respondent maintains that the development application should be refused for the following reasons. 1. This development application does not include the construction of a bridge from the end of Bemboka Street over the Hazelton Creek (the Creek) to Terragong Street. The failure to do so provides unsatisfactory traffic management and is inconsistent with the provisions of Appendix 13 of the Shellharbour Development Control Plan 2013 (DCP 2013). 2. That the development application fails to provide appropriate bushfire safety measures, in particular in relation to fire fighter safety. Secondly, whether the consent authority can be satisfied that the development meets the requirements of s 4.14 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. That the Court should not exercise the power to approve the development as there is uncertainty about the relevant works and their impacts. In particular, the development application is Integrated Development pursuant to s 4.46 of the EPA Act as a result of the need to gain approval pursuant to s 90 of the National Parks and Wildlife Act 1974 (NPWS Act) to impact (destroy) Aboriginal artefacts. The s 90 Permit is required due to the presence of Aboriginal artefacts within the footprint of the development. Further, there is potential for Aboriginal artefacts to be present in the footprint of the development site. The Respondent argues that the development application must be refused as the application has not demonstrated that the development will not have an adverse impact on Aboriginal cultural heritage and Aboriginal places of significance. 4. On similar grounds to (3), the Respondent contends that the Court has insufficient information to perform the requirement at cl 6.2(3)(f) of the Shellharbour Local Environmental Plan 2013 (LEP 2013). Namely, before granting development consent to development involving ancillary earthworks the consent authority must consider the likelihood of disturbing relics.
Whilst the Respondent included a contention in relation to the timely delivery of the proposed public park in their opening, this issue was resolved by the parties during the proceedings by the imposition of a proposed condition requiring the completion of the local park prior to the issue of a certificate of practical completion and subdivision certificate for Stage 8A of the subdivision.

[6]

Bushfire protection measures

The development application fails to provide appropriate bushfire measures, in particular in relation to Access at Section 5.3.2 of Planning for Bushfire Protection 2019 (PBP) for operational access for fire fighters. I accept the submission of the Respondent that the development, as proposed, does not provide adequate protection for life, assets and firefighters in that the performance- based solution proposed does not meet the bushfire planning measure of Access at Section 5.3.2 of PBP. That risk arises in proposed Stages 8A and 9. The Applicant relies on a variation to the acceptable solutions in PBP by providing an alternative through the process of a performance-based solutions.
In Stage 8A of the proposed subdivision, the performance-based solution proposed is to provide a fire trail as a right of carriageway (ROW) over private land in lieu of the provision of an access road in accordance with Table 5.3b of PBP. In Stage 9 of the proposed subdivision that performance-based solution is the provision of three shared private driveways over which the NSW Rural Fire Service (NSW RFS) would have an easement for access.
I accept the submission of the Respondent that the development, as proposed, does not provide adequate protection for life, assets and firefighters. That risk arises in proposed Stages 8A and 9. The Applicant relies on a variation to the performance criteria in PBP by providing an alternative to the nominated acceptable solutions. Having considered the evidence, I am not persuaded that these alternatives meet the intent of the relevant performance criteria as it fails to adequately mitigate the risk to future residents and fire fighters that arises from the subdivision of bushfire prone land for residential purposes.
Following an assessment of the development application under s 4.15 of the EPA Act, I have given three elements weight in determining that the development application warrants refusal. Firstly, the extent to which the proposed development conforms with or deviates from the PBP (the matter in cl 45(2)(h) of the Rural Fires Regulation 2022 (Rural Fires Regulation)) in Stages 8A and 9. Secondly, the risk of detrimental impacts arising from the proposed performance-based measures in circumstance where those alternatives do not meet the stated intent of the Access measure, and thirdly the correspondence from the NSW RFS which raised concerns with the lack of justification within the development application for the lack of provision of perimeter roads consistent with PBP.
Taking these matters into consideration, I determine that the development application warrants refusal.

[11]

Respondent argues the bridge is required by DCP 2013 and to provide amenity to residents.

The Respondent, in its Statement of Facts and Contentions, argues that bridge (or crossing) across The Creekhas been planned to link the existing Stage 3 (the current development application) on the southern side of the Creek with the development on the northern side of the Creek. The Respondent argues that the bridge must form part of any approval of this stage for two reasons. Firstly, to meet the outcomes of the original masterplanned Tullimbar 1881 estate (the estate) and secondly, because need for the connection was identified in the traffic impact assessment (TIA) which accompanied the rezoning application for Stages 5-9 of the estate.
In support of the first reason, the Respondent relies on Figure A13.1 from Appendix 13 of the DCP 2013 and a staging plan which formed part of development consent under DA741/2002 (the 2002 Approval). The consent and associated documents relating to the 2002 Approval do not form part of the evidence in these proceedings, with the exception of the following extract from the consent conditions which is included in the Respondent's Statement of Facts and Contentions: "Hazelton & Cooback Creek bridges 82. (a) The access bridge on Street 7/ Street 33 and Street 14 must be designed to provide for a one lane 3.5m carriageway. A dedicated passing bay shall be provided either side of the bridge with appropriate signposting and linemarking. (b) The access bridges on Street 1 and Street 5/Street 14 must be designed to provide for a two lane 6.0m carriageway. The width of the pathway must be a minimum of 1.2m. The access bridges described in condition 82(a) and 82(b) must be constructed "flood free" with a minimum of 300mm freeboard between the flood surface and the underside of the bridge deck (for all storm events up to and including the 1 in 100 year event). The bridges must be able to withstand the impact of an extreme flood event (PMF)." (Exhibit 2)
For the second reason, the Respondent relies on a TIA prepared by the Cardno Pty Ltd which assessed the traffic impacts arising from Stages 5-9 of the estate. This TIA formed part of an application to rezone this land. The TIA includes the following commentary about the bridge, which is also noted on the annexed site plan as 'Bridge subject to future DA': "2.2 Existing and Future Access Arrangements … It is understood that, by 2026, a bridge will be constructed connecting the proposed Stage 3 of the Dahua Development to the Ravenwood development to the east. This bridge connection is expected to provide an alternate traffic route for proposed development to Tongarra Road/ Church Street intersection resulting in a reduced traffic demand at Illawarra Highway/ Broughton Avenue and Illawarra Highway/ Yellow Rock Road intersections. …" (Exhibit 3)
Finally, the Respondent argues that the provision of the bridge is part of the future amenity for residents of the residential subdivision by reducing trip distances, providing alternative access options and to ease traffic congestion.

[12]

Applicant argues no unacceptable impacts, no power to impose the requirement and that DCP 13 does not apply.

In the alternative, the Applicant submits that the Respondent's contention that the development application is not made out for three broad reasons.
Firstly, that there are no unacceptable traffic impacts arising from the development for which consent is sought. Citing the decision of Preston CJ in Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158 at [8], [76] and [124], Mr Stafford, the solicitor for the Applicant submits that the fact of the desirability of the bridge is the incorrect question. The Court must deal with the development application at hand and assess and determine whether the development on the site proposed in that application results in acceptable environmental impacts. A reference to a more desirable outcome, or development, is not relevant. Assessing the development before the Court, on its merits pursuant to s 4.15 of the EPA Act, the expert evidence is that the existing road network has capacity to service the residential subdivision and the proposal does not give rise to the need for a bridge from Bemboka Street to Terragong Street.
Secondly, any proposed bridge has a boarder public benefit in circumstances where no development contribution plan applies to the land. Citing North Western Surveys Pty Limited v Penrith City Council [2012] NSWLEC 1017 at [52-70] and Fairfield City Council v N & S Oliveri P/L [2003] NSWCA 41 at [12-22] and [73-77], Mr Stafford submits that there is no proper basis pursuant to s 7.11 of the EPA Act to require a bridge as part of this application.
Thirdly, if a condition was to be imposed on a consent pursuant to s 4.17(1)(f) of the EPA Act, such a condition would need to relate to a matter referred to in s 4.15(1) of the EPA Act "of relevance to the development the subject of the development application'. Mr Stafford argues there is not a relevant matter in s 4.15(1) of the EPA Act that would ground a condition requiring a bridge to be constructed as part of this development application for two reasons: 1. Firstly, the Section of DCP 2013 relied on by Mr Seton does not apply, and; 2. If such a condition was imposed it would not be reasonable and would fail the tests of validity in Newbury District Council v Secretary of State for the Environment [1981] AC 578, those being that the condition must fairly and reasonably relate to the development the subject of the development application and must be imposed for a proper planning purpose.
Expanding on the first basis that Mr Stafford argues a condition requiring the bridge should not be imposed pursuant to s 4.17(1)(f) of the EPA Act, Mr. Stafford contends that the provisions Appendix 13 of DCP 2013 do not apply for three main reasons.
Firstly, Mr Stafford argues that the content of the planning proposal (4/2018) that transferred the land into LEP 2013 indicates that only part of Lot 132 and Lot 133 in DP 1266545 (the site) was zoned 2E Mixed Use development under LEP 2000. The remainder was zoned 1A - Rural A under LEP 2000. Therefore, the provisions of Appendix 13 of DCP 2013 did not apply to the whole of the site even before the land was rezoned. Further, provision A13.1 of Appendix 13 of DCP 2013 indicates that the controls within this Section of the DCP only applies to "deferred land" of which the site is no longer.
Secondly, the provisions of a development control plan are not static. The controls of Appendix 13 of DCP 2013 were intended to apply to land zoned 2E - Mixed use under LEP 2000 at the time of assessment. The application of the controls is not fixed in time so that they continue to apply to land which was so zoned at the commencement of DCP 2013.
Thirdly, in circumstances where only a small part of the site used to be zoned 2E- Mixed use, it is unclear how the provisions of Appendix 13 of DCP 2013 could be construed to require the Applicant for development of the site to be responsible for the provision of the bridge, especially where proponents of past and future applicants do not have this burden despite being formerly or currently zoned 2E- Mixed use under LEP 2000.
Finally, given that only a small portion of the site was previously zoned 2E-Mixed Use, it is unclear how the provisions of Appendix 13 of DCP 2013 could be construed as requiring this Applicant to be responsible for providing the bridge. This is particularly where proponents of past and future development applications within the bounds of land affected by Appendix 13 do not have this burden, despite being formerly or currently zoned 2E- Mixed use under LEP 2000.

[13]

The lack of provision of a bridge does not warrant refusal.

A consent authority has the power to impose conditions of consent on a development application. That power arises at s 4.17 of the EPA Act. The relevant section of the provision in the current proceedings states: 4.17 Imposition of conditions (cf previous s 80A) (1) Conditions - generally A condition of development consent may be imposed if - (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or … (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or … (h) it is authorised to be imposed under the following - (i) section 4.16(3) or (5), (ii) subsections (5)-(9) of this section, (iii) section 7.11 or 7.12, (iv) Division 7.1, Subdivision 4, (v) section 7.32. …
The Applicant's development application does not include the construction of a bridge between Bemboka Street and Terragong Street (the bridge). They do not seek consent for these works as part of the development application. Further, no Voluntary Planning Agreement is proposed by the Applicant to provide this infrastructure.
There is agreement between the parties that there is no development contributions plan which applies to the land which seeks to impose a requirement for this development application to contribute funds to the delivery of the bridge. Further, the land is not benefitted by a master plan consent, a staged development application or a concept approval. On this basis the provisions of s 4.17(1)(h) of the EPA Act do not apply.
In their evidence the traffic experts reached agreement that the existing and proposed road network has capacity to meet the traffic demands of the proposed subdivision. Further, the experts agreed that the traffic impacts arising from the proposed development are acceptable. On the basis of the evidence before the Court, the need for the provision of the proposed bridge does not arise to mitigate a traffic impact arising from the proposed development: s 4.15(1)(b) of the EPA Act.
The first part of the Respondent's contention, namely that the failure of the development application to include the construction of a bridge from the end of Bemboka Street results in unsatisfactory traffic management, is not made out on the evidence.
Notwithstanding this, the Respondent argues that the provisions of s 4.17(1)(a) are engaged as Appendix 13 of DCP 2013 is a matter referred to in s 4.15(1) of relevance to the development the subject of the consent.
I accept and prefer the submissions of Mr Stafford that the provisions of Appendix 13 of DCP 2013 do not apply to the development application. I adopt his submissions summarised at [30]-[33].
Even if the Court accepted that the provisions of Appendix 13 of DCP 2013 apply to the land, I find that this is an insufficient reason to impose the condition pursuant to s 4.17(1)(a) for the following reasons: 1. Appendix 13 of DCP 2013 does not contain an overt provision, or a development control, which mandates the construction of a bridge from Bemboka Street over the creek to Terragong Street. 2. When the Appendix is read as a whole, at best, it adopts the Tullimbar Village structure plan (which includes the bridge) and requires development to be generally consistent with it: see A 13.5 and Figure A 13.1. I am satisfied that the development application is concordant with the requirement to be generally consistent with the Tullimbar Village structure plan. 3. The provisions at A13.14: Street Network do contain a provision which requires the provision of creek crossings in places nominated in the Tullimbar Village structure plan, this development control on its terms is directed to providing access to all parts of the Tullimbar Village in a 1% Annual Exceedance Probability flooding event. The Respondent has not argued that this control is not met by the development application, nor that the provision of the bridge is required to achieve this outcome. Further, the control does not link the provision of any bridge to the development of a nominated section of the estate.
To the extent the Respondent relies on a condition from the 2002 Approval, I am not persuaded that such a condition is sufficient to establish the requirement for construction of the bridge as part of this development application. Firstly, the scope of the 2002 Approval comprised some 851 lots, 12 super lots, a school site, public reserves and creek rehabilitation. This development application is the further subdivision of a portion of the land the subject of 2002 Approval. There is no evidence in these proceedings to support a conclusion that the development generates traffic demand or impacts that require the mitigation of the bridge works to be acceptable.
Secondly, the effect of this condition is to detail the minimum specifications for such a bridge. The condition does not provide a mandate for the provision of a bridge nor link that requirement to the works for which consent is sought under the current development application.
Finally, to the extent that the Respondent argues that the bridge is required to deliver a level of amenity to the residents of the Tullimbar Village on the evidence I am not persuaded that the difference in accessibility or travel times argued provide an appropriate basis to impose the condition. The change in amenity arising from the provision of the bridge is disproportionate to the burden of the condition.
I find that the Respondent's first contention, that the development application should be refused as it does not include the construction of a bridge from the end of Bemboka Street over the creek to Terragong Street, is not made out and does not warrant the refusal of the development application.

[15]

Legislative framework

The proposed development is "integrated development" under s 4.46 of the EPA Act as, in order for the development to be carried out, a bush fire safety authority under s 100B of the Rural Fires Act 1997 (NSW) was required. Section 100B(3) requires a person to obtain a bush fire safety authority before developing bush fire prone land for a purpose referred to in s 100B(1), which includes "a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes". It was common ground that the land was bush fire prone land, and the proposed development was a subdivision of that land which could lawfully be used for residential purposes.
Before granting development consent to an application for consent to carry out integrated development, the consent authority must obtain from the relevant approval body (here, the RFS Commissioner) the general terms of any approval (GTAs) proposed to be granted by the approval body in relation to the development (s 4.47(2) of the EPA Act). As outlined by Preston CJ in Shoalhaven City Council v Easter Developments Pty Limited (2024) 261 LGERA 35; [2024] NSWLEC 49 (Shoalhaven v Easter) at [11] least four scenarios can apply: 1. Firstly, the approval body informs the consent authority of the GTAs it proposes to grant. Any the consent granted must be consistent with the GTAs. 2. If the approval body informs the consent authority it will not grant an approval, the consent authority must refuse consent to the application (s 4.47(4) of the EPA Act). 3. If the approval body fails to inform the consent authority whether or not it will grant the approval, or of the GTAs, the consent authority may determine the development application and, if determined by granting consent, the approval body cannot refuse to grant approval to any application for approval in respect of the development and any approval granted by the approval body must not be inconsistent with the development consent (s 4.47(5) of the EPA Act). 4. On appeal, the Court may determine the development application whether or not the consent authority has obtained GTAs from the relevant approval body, is not bound to refuse the application for development consent because the relevant approval body has decided not to grant a relevant approval or determine GTAs, and may grant development consent on conditions that are inconsistent with the GTAs from the approval body (s 8.14(4) of the EPA Act).
In these proceedings, Applicant elected for the development application to be integrated development on the development application form and the development application was referred to the NSW RFS on 3 November 2022. No GTAs have been issued. In response to that referral, NSW RFS raised the following concerns in relation to the development application: 1. There is an inconsistency between the plans which were assessed in the Applicant's Bushfire Assessment Report and those referred to NSWRFS. I note that the NSW RFS was referred the first iteration of the report. 2. Insufficient information has been provided in the bushfire assessment report to support the removal of the perimeter roads. The correspondence states (emphasis original): "Perimeter roads The planning proposal assessed for the rezoning of the subject land included a concept subdivision plan which incorporated perimeter roads to all lots with the exception of 1 lot in what is now Stage 9 and 5 lots in what is now Stage 5. Insufficient information has been provided in the bushfire assessment report to support the removal of the perimeter roads, in particular a response to the following performance criteria is required: Access roads are designed to allow a 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. The current plan presents the following areas without the benefit of a perimeter road: Stage 5 Operational access to the perimeter of Lots 518-527 to be addressed. Stage 6 Operational access to the southern boundary of Lots 606 and 607 to be addressed. It is noted that the proposed access road adjoining the lots on Lot 240 DP 828854 is unlikely to be constructed as the land has now been rezoned to C3 Environmental Management. Stage 8A Operational access to the western boundary of Lots 861-873 to be addressed. Stage 9A Operational access to the perimeter of Lots 914-919 to be addressed. Stage 9B Operational access to the perimeter of Lots 931-934 to be addressed. …" (Exhibit 3) 1. Road widths and on-street parking: the NSW RFS requires any on street parking proposed to be provided outside the minimum road width requirements in PBP. Alternatively, installation of 'No Parking' signage is required. This requirement is discussed below in relation to the fire trail proposed for Stage 8A at [61]. 2. An updated bushfire assessment report was required by NSW RFS to provide recommended conditions for the following lots: Lots 530-536 in Stage 5; and Lots 606 and 607 in Stage 6. This matter has been addressed and appropriate conditions have been drafted to provide restrictions on title for these nominated lots requiring future construction to conform to a Bushfire Attack Level of 29.
PBP details the Bushfire Protection measures for development on bush fire prone land in New South Wales, including for new residential subdivision allotments. One of those Bushfire Protection measures is Access, which is detailed at Section 3.4: Access Arrangements. Chapter 5 of PBP details the performance criteria and acceptable solutions for access arrangements for residential and rural residential subdivisions in Table 5.3b. The Bushfire Protection measure is met in circumstances where the performance criteria are achieved through the nominated 'Acceptable solutions' or 'performance-based' solutions: see PBP Section 1.4.3. Where a performance-based solution is proposed, it is assessed against the intent of the specific Bushfire Protection measure and the listed performance criteria. Where a performance-based solution is proposed, PBP outlines the submission requirements at A2.4 of Appendix 2.
An assessment of the extent to which the proposed development conforms with or deviates from the PBP (the matter in cl 45(2)(h) of the Rural Fires Regulation) needs to be undertaken by the consent authority and, on the appeal in this case, by the Court in determining the development application to carry out the proposed integrated development and is a relevant matter to consider in determining the development application: s 4.15(1)(a) of the EPA Act and s 39(4) of the LEC Act.
Further, in Shoalhaven v Easter held that firstly, the Court is required to consider the impact of bush fire attack on the people and assets on the land and the bush fire protection measures to mitigate that impact under s 4.15(1)(c) of the EPA Act and secondly, where the proposed development is a residential subdivision, is to take into consideration the compliance with the Asset Protection Zones (APZ) requirements of PBP in considering the suitability of the site for the development.

[18]

Stage 8A

In the supplementary joint report, Mr Cannon and Mr McMonnies note that their previous concern regarding the dimensions of the proposed turning circle at the termination of Cordeux Road are resolved and it is agreed that the turning circle now complies with the acceptable solutions at Table 5.3b of PBP.
Mr McMonnies and Mr Cannon agree that in Stage 8A of the development application a fire trail at the rear of lots 859 to 871 is proposed as a performance solution in lieu of a perimeter road. The experts disagree about the appropriateness of the performance solution and whether it meets the intent of the Access bushfire protection measure at 5.3.2 of PBP.
A fire trail, via an easement over Lots 859-871, is proposed to extend from Road 08m at the rear of the proposed lots to connect to the turning circle at the termination of Cordeux Road through Lot 870. A 20m long passing bay is proposed within Lots 859-871. No stopping signs are proposed to be required for the length of the fire trail by condition of consent. That portion of the subdivision where an easement for a fire trail is proposed is extracted below (fire trail highlighted in yellow):
The subdivision plans incorporated as part of the development application include plans delineating the building envelopes on each of Lots 859 to 871. These plans seek to demonstrate how future residential dwellings would relate to the fire trail easement. The Applicant proposes that these plans will form part of the approved plans if a consent is issued. The building envelopes are proposed to be imposed on title of the affected lots as a formal restriction to user. An example of one of those lots is extracted below (fire trail highlighted in yellow):
The proposed conditions of consent in the proceedings include the following conditions to implement the fire trail in Stage 8A: "124. Services & 88B Instrument Lots affected by new or existing utility services must be burdened with easements and restrictions on the use of land to the satisfaction of the Principal Certifier and the relevant utility provider. Restrictions must be placed on title with respect to: … xi. Fire Trail over allotments 859 to 871 in accordance with 'Concept Plan of Subdivision Sheet 07 of 07' prepared by Orion Consulting (ref: 219334-04-PL-007, Revision K, dated 5 September 2024) xii. Building Envelopes in Stages 5, 8 and 9 in accordance with:- 210334-04-PL-011 - 013, Building Envelope Plan Stage 5 Orion Consulting 011, Revision 8 19/07/2024, 12/08/2024, 26/08/2024 (Sheets 01 to 03 / 03 of 03) 012, Revision 9 013, Revision 9 Building Envelope Plan Stage 8 210334-01-SK-075 - 076, 22/07/2024 (Sheets 01 to 02 / 02 of 02) Orion Consulting 075, Revision E 06/08/2024 076, Revision F Building Envelope Plan Stage 9 Orion Consulting 210334-01-SK-087, Revision 8 09/08/2024

[19]

xiv. Fencing Requirements … 2. No sheet metal fencing for the rear, secondary or side boundaries for Lots 859 - 871 … xvi. Each of lots 859 to 870 are to be fenced and gated to the eastern side of the right of way passing through those lots and there is to be no further fencing to the west of those fences and gates. …"

The intent of the Access bushfire measure is extracted at [59].Table 5.3b of PBP nominates a list of acceptable solution that meet the performance criteria of firefighting vehicles being provided with safe, all-weather access to structures. The development application varies the acceptable solution as perimeter roads are not provided where a residential subdivisions of three or more allotments is proposed.
The focus of the expert evidence was how the performance-based solution (fire trail by easement) meets the intent of the Access measure. Mr McMonnies acknowledges that the proposed fire trail can provide attending fire services reasonable operational access to the western interface to undertake hazard reduction or fire suppression activities. His concern centres on the certainty of unimpeded access across the fire trail where such access relies on an easement over 13 individually owned residential allotments. In his evidence, Mr McMonnies outlines the following concerns in relation to the proposed fire trail as a performance solution: 1. The practicality of ensuring unimpeded access along the fire trail when it exists as an easement on private property owned by 13 individual owners. For example, Mr McMonnies notes that whilst the restriction on title may require the width of the easement to be unfenced and unobstructed - how can this been ensured and by whom? He noted that the presence of a physical barrier during a fire would impact the ability to deploy fire suppression activities. Such a barrier could be a vehicle, a trailer, a fence, clothesline or the like. 2. Each of the individual owners will be required to maintain the surface of their respective section of the fire trail. As the subdivision is proposed as a Torrens title subdivision, it is unclear how this may be coordinated, or such an obligation enforced. 3. It is unclear how owners of the lots affected by the easement will fence or secure their properties, for example, to restrict pets/children or maintain security. This is especially the case as the easement is not co-located with a property boundary but bisects the property. As can be seen in [63] the proposed subdivision layout results in some private land for each lot being located both to the east and to the west of the proposed fire trail.
Mr McMonnies does not support the dual use (emergency services and the residents) of the fire trail proposed by Mr Cannon unless the width of the carriageway is increased. Where the fire trail is proposed for dual use, Mr McMonnies argues it should comply with the requirements for a Perimeter Road detailed at Section 5.3.2 of PBP. These requirements include being a two-way sealed road of a minimum width of 8m.
In his oral evidence, Mr McMonnies agreed that if a covenant, or restriction on title, is placed on each of the lots mandating the easement cannot be obstructed and fencing is prohibited, and it is complied with, his concerns would be resolved. It is the certainty of compliance and the risk that arises from non-compliance he remains concerned with.
In the alternative, Mr Cannon argues that the proposed fire trail is acceptable for the following reasons: 1. The development application proposes a 4m wide sealed fire trail with clear signposting, that will be constructed in accordance with Table 4.3b of PBP. 2. That the upfront sealing of the road surface will reduce the ongoing maintenance requirements for residents. 3. The fire trail will sit within a 6 to 8m wide ROW which will be established over lots 859-871. That ROW will authorise approved individuals to drive their vehicles over a designated portion of another person's land, thus facilitating access for the NSW RFS. The terms of the restriction will include that the property owner cannot restrict entry or construct any structures on or over the easement area. These restrictions address the concerns of Mr McMonnies that access to the fire trail by NSW RFS will be obstructed or blocked. 4. Lots 859-871 are zoned R5 - Large Lot Residential, ranging in size from 1,069m2 to 4,519m2. The building envelope plans included with the development application do not reflect the realistic future development site. If a dwelling area of 16m x 20m is placed on the proposed lots, it demonstrates that most have over 20m of rear yard space before the ROW. Mr Cannon argues that given this a fence could be installed on the east side of the ROW without significantly impacting the lots useability.

[20]

Stage 9

During the hearing, the subdivision design was altered for Stage 9 as an amendment to the development application. As amended lots 914-919 have extended driveways (4m wide) shared between adjoining lots which terminate at the end of the APZ building offset line. A reciprocal ROW is proposed to benefit the adjoining lots. A T-turning head is proposed at the termination of the driveways which is NSW RFS compliant. A restriction prohibiting fencing of the ROW is proposed. This series of extended shared driveways are a performance-based solution which is proposed as an alternative to the acceptable solution of access via a perimeter road: Table 5.3b of PBP.
The bushfire experts disagree about whether the performance-based solution proposed for access in Stage 9 of the proposed subdivision meets the performance criteria in Table 5.3b of PBP. There are three key differences between the experts. Firstly, whether the performance-based solution proposed will detrimentally affect the efficiency of fire fighters undertaking fire suppression and property protection activities. Secondly, whether the concerns raised by the NSW RFS in their correspondence of 3 November 2022 in relation to the lack of perimeter roads in Stage 9 have been addressed, and finally whether the development application has sufficient detail and justification to demonstrate that the performance-based solution meets the intent of the Access bushfire protection measure.
In summary, Mr Cannon's evidence is that the proposed driveways, the ROWs, the provision of hydrants and open style fencing to the rear of the lots will allow for relatively quick and easy access to the bush interface to manage bushfire threat and egress through residential properties if required. He argues that the shared extended driveways proposed in Stage 9, along with the restrictions on fencing, significantly enhance access to the bushfire interface located to the south of Lots 914 to 919.
In his evidence, Mr McMonnies accepts that the proposed concrete driveways now located between Lots 914 & 915, 916 & 917, and 918 & 919 provide greater opportunity for fire appliances to access the southern bushfire interface than was proposed in previous iterations of the development application. However, he argues that the performance-based solution does not meet the Access bushfire protection measure. His reasoning is that the shared driveways between the proposed lots do not allow a coordinated and efficient response by fire fighters undertaking fire suppression and property protection measures. His principal concern is that in event of a fire, separate fire appliances and crews would need to be deployed at the end of each driveway. They would operate independently. In contrast, a perimeter road would allow crews to move across the face of the bush interface in a coordinated manner. He argues that the three shared driveways proposed will separate and duplicate resources. On this basis, he says the intent of the access measure to provide safe operational access to structures and water supply for emergency services is not met by the Applicant's performance-based solution.

[21]

Submissions

Mr Stafford makes the following key arguments in his submissions. Firstly, that the bushfire protection measure Access at Section 5.3.2 of PBP is not directed at providing access for NSW RFS to perimeter bushland. Secondly, that any performance criteria (and their corresponding acceptable solution) directed to perimeter roads is only applicable to a development application that proposes perimeter roads. He argues that the bushfire experts are mistaken to raise the performance criterion for perimeter roads in Table 5.3b in their evidence as it does not apply. Thirdly, that the performance-based solutions proposed by the development application are appropriate.
In support of the first submission, Mr Stafford notes that the intent of Section 5.3.2: Access in PBP is directed two components, firstly, the provision of safe operational access to structures and water supply for emergency services and secondly provision of access for residents to evacuate from the area. He emphasises that the intent is not directed at the provision of access to the perimeter bushland. Further, he notes this emphasis is repeated in Table 5.3b where the table indicates that the acceptable solution provided under the requirement "Access (General Requirement)" is that 'firefighters are provided with safe, all-weather access to structures'.
Secondly, Mr Stafford submits that the requirements in Table 5.3b for a perimeter road are only applicable where one has been proposed. He submits that there is nothing in the corresponding 'acceptable solution' or 'performance criterion' that requires the performance criterion to be met where no perimeter road is provided around the interface between the subdivision and the interface at all. The relevant section of Table 5.3b is extracted at [78].
Mr Stafford argues that the correct interpretation of Table 5.3b is that the provisions for non-perimeter roads only apply where a perimeter road is proposed. In his submission, if no perimeter road is proposed the provisions for perimeter roads are irrelevant. Applying this reasoning, he argues that the development application seeks only to vary the performance criteria of 'firefighting vehicles are provided with safe, all-weather access to structures' as the second component of the acceptable solution is not provided (i.e. there is no perimeter road).
Thirdly, Mr Stafford submits that the performance-based solutions proposed in the development application are appropriate.
In relation to the proposed performance- based solution for Stage 8, the fire trail, Mr Stafford argues:

The proposed 4m sealed ROW provides rear access across the proposed lots for emergency services only. It is not intended to provide private vehicular access to the lots themselves and this is not proposed to be one of the terms of the title restriction.
That, in contrast to the views of Mr McMonnies, that once the fencing is placed as part of the subdivision works, it is unlikely a property owner would construct a fence to block the ROW.
That the Court, applying Kur ring gai v Twibill and Associates (1979) 39 LGRA 154, Parramatta City Council v Hale (1982) 47 LGRA 319 and Minister for Planning v Walker [2008] NSWLEC 97, should presume that the conditions of consent prohibiting any obstruction of the ROW will be complied with. He submits that if the consent identifies a sealed ROW, with fencing required to the east of the ROW, there is no proper basis on which to assume the development will not be carried out in accordance with the consent.
That the land to the west of the ROW, owing to its topography and vegetation would not have been very functional as private open space and on Mr Cannon's evidence the proposed lots have ample area for a building envelope and sufficient open space.
Finally, in response to Mr McMonnies concern about the ROW being formed over multiple lots, and that this approach has been abandoned by PBP he argues: "Thirdly, Council's concern (and that of Mr McMonnies) associated with having an easement over multiple lots (and the suggestion that this approach has been abandoned by PBP 2019) is not made good by the terms of PBP 2019, which itself notes in respect of isolated subdivisions that "Maintenance of perimeter roads shall be the responsibility of the cluster community" (pg 40). It is not apparent why a rear easement for access to Stage 8 is not also an appropriate case for maintenance of the access to be the responsibility of the owners of the cluster of dwellings: these are larger rural residential blocks (albeit not particularly isolated like some small rural holdings). Running a public road down the back of these blocks would again literally be a road to nowhere of no public utility in the context of the larger lots that the proposal serves." (Applicant's closing submissions p 25)

In contrast, Mr Seton submits that Stage 8A of the development application proposes a ROW that fails to meet any of the acceptable solutions in PBP for Access. He argues that the development application poses an unacceptable risk by failing to propose an acceptable solution or, based on Mr. McMonnies' evidence, a performance solution that meets the intent of the Access bushfire protection measure. Mr Seton argues the unacceptable risk is the failure of the ROW to provide safe operational access for firefighters and their equipment in circumstances where is relied on the operation access to structures and water supply. Relying on the evidence of Mr McMonnies, Mr Seton says that risk arises in two ways. Firstly, as the ROW will be in the ownership of thirteen different private individuals with no coordinated requirement for maintenance to occur to keep it to a standard that meets the requirement of NSW RFS. Secondly, that in the circumstances where that ROW is obstructed at the time of the fire, either by a barrier or a vehicle, the ROW cannot provide adequate protection for life, assets and firefighters.
In relation to Stage 9, Mr Seton argues that the Court should accept the evidence of Mr McMonnies that the alternative solution of access driveways through lots is not equivalent to the provision of a perimeter road. He argues that the Applicant has not addressed McMonnies' concern about the reduction of efficiency of operational RFS crews. Further, the Applicant has not embraced the alternative solutions process outlined in PBP at A2.4 of Appendix 2. There is no evidence of engagement by the Applicant with the NSW RFS nor has it prepared a Bush Fire Design Brief as required by A 2.5 of PBP.
Finally, Mr Seton argues that the nomination of the extended shared driveways between lots in Stage 9 demonstrate that the argument from the Applicant that a perimeter road is not feasible is not made out. He argues that any justification that a perimeter road cannot be delivered in Stage 9 due to the topography of the proposed lots, is undermined by the amended development application. Mr Seton's reasoning is that the nomination of driveway accesses in Stage 9 (for example that proposed between Lots 914915) demonstrate that an engineering solution addressing the contours to create a road is possible. Further, he argues it appears possible that such a perimeter road could be provided on the western boundary of Lot 914 as the land has effectively the same contours. He emphasises the evidence of Mr McMonnies in relation to efficiency means the difference between the extended driveway option and a perimeter road is important. In Mr McMonnies' evidence, it is not efficient to place an appliance and fire fighting resources in isolated locations at the end of shared driveways, it is much more efficient and safer for those resources to be deployed collectively along a perimeter road.
Mr Seton submits that the Court has an obligation to consider conformance of the proposed development with PBP as part of the determination of the application. Part of that assessment and determination is the mandatory consideration is the consideration of the suitability of the site for the development which he submits includes the need to consider bushfire attack: Shoalhaven v Easter at [18].

[22]

Findings

The development application proposes two performance-based solutions for the Access bushfire protection measure that are in dispute. Those are the ROW proposed as part of Stage 8A and secondly, the shared driveway arrangement in Stage 9.
Dealing first with the submissions of Mr Stafford about the interpretation of Table 5.3b, I make the following comments: 1. I disagree with the submissions of Mr Stafford that the performance criteria for perimeter roads in Table 5.3b of PBP do not apply. When the PBP is read in totality, it is clear that the purpose of the distinction between 'perimeter roads' and 'non-perimeter roads' in Table 5.3b is the role of perimeter roads in providing space at the bushland interface for active fire fighting and hazard reduction. So much is clear from Sections 3.41 and 3.42 of PBP which is extracted below: "3.4.1 Perimeter roads A perimeter road should be provided to separate bush land from urban areas, allowing more efficient use of firefighting resources. A perimeter road is located on the outer extremity of a local area or subdivision and usually runs parallel to the bush land interface. The perimeter road provides space to conduct active firefighting operations and hazard reduction activities. In developments where no perimeter road exists, property defence in a bush fire event may be more difficult. 3.4.2 Non-perimeter roads Non-perimeter roads are the interconnecting roads between the perimeter roads and the existing and/ or broader road network. These roads form a link for firefighting operations by providing access for emergency vehicles, a safe space for conducting property protection, and a suitable road network for egress of residents." 1. Nevertheless, even if I accept the approach of Mr Stafford to the interpretation of Table 5.3b, the acceptable solution for Access under the general requirements is not met as a perimeter road is not provided.
In assessing the compliance of the development application with PBP, I have also given weight to the four-part classification of Access arrangements in PBP. Namely that access arrangements are classified as either a perimeter road, a non-perimeter road, a property access road or a fire trail. In Section 5.3.2 Access, Table 5.3b delineates the performance criteria and acceptable solutions for each of these classifications of access arrangements.
The development application represents a substantial variation to the acceptable solution in both Stages 8A and 9 (for example, these two stages do not propose a perimeter road, and the alternatives (the ROW and the extended driveways do not conform to the required width in PBP). It is agreed between the bushfire experts that in Stages 8A and 9 of the subdivision the development application seeks to achieve the performance criteria through a performance-based solution as the acceptable solutions are varied. I accept this agreement.
Section 3.4.4 Fire trails in PBP is clear that "A fire trail is not a substitute for a road; nor is it considered an appropriate trade-off for the provision of perimeter or non-perimeter or property access requirements".
PBP clearly outlines at Figure 1.5 how the document is to be used. Where a performance-based solution is proposed in a development application, the application is to include a demonstration of how compliance with the performance criteria is achieved by that solution. This process is nominated as Step 7 at Figure 1.5 of PBP and is detailed at A2.4 of Appendix 2 of PBP. Accordingly, in assessing the development application I have given weight to the bushfire assessment reports prepared by the Applicant.
The updated bushfire assessment report (BAR) submitted with the development application details the conformance of the access arrangements with Section 5.3.2 of PBP collectively across Stages 5, 6, 7, 8B, 8A and 9. However, relevantly the BAR provides the following reasoning that seeks to demonstrate compliance of the subdivision with the performance criteria in PBP. I note that the BAR refers to the fire trail in Stage 8A as a single width road: Stage 8A

The majority of Stage 8 is serviced by perimeter roads with the southern portion relying on a single width road of 190m length.
A conforming perimeter road is unable to be provided due to geotechnical issues (steep topography) and the proximity of the land zoned C3 Environmental Management.
The portion of Stage 8A which relies on the single width road proposes large residential lots.
Passing bays have been provided to offset the reduction in width.
A reticulated water supply (including hydrants) will be provided to comply with Australian Standard AS 2419.1.2021.
A 2m wide building restriction will be applied to the side boundaries to ensure adequate access past any buildings.
The single width road will be implemented as a ROW, and via a restriction on the use of the land, to ensure unobstructed access.
Fire fighters can gain access to the rear through each property to access the threat via the ROW. Stage 9
The relevant lots which are not serviced by a perimeter road in the amended development application are Lots 914-919 in Stage 9.
Implementation of a perimeter road for these lots was not pursued as it would have resulted in large batters on the interface with the adjoining steeply sloping land.
Stage 9 has an average slope greater than 15% with greater slopes located at the zone interface between the C3 Environmental Management zone and the R5 Large Lot Residential.
Further, any perimeter road on the southern boundary of the proposed lots would require significant cut and would result in large batters or retaining walls to achieve the maximum road grade.
The amended development application includes nominated building envelopes for Lots 914-919. They demonstrate that the rear of the proposed lots will be undeveloped.
A 2m wide building restriction will be applied to the side boundaries to ensure adequate access past any buildings.

In the BAR, Mr Cannon concludes that the proposed performance-based solution of the ROW for Stage 8A is acceptable because: firstly, the prevailing bushfire threat would be a slow-moving fire rolling down the slope at the rear of the properties; secondly, the lots are larger and finally that given the topography provision of a perimeter road would be unreasonable and unnecessary.
Amendments to the subdivision design occurred in Stage 9 during the proceedings. Those changes were addressed by the experts in a supplementary joint report. In that report, Mr Cannon concludes that the proposed performance-based solution of the extended driveways is acceptable. He concludes that the relevant performance criteria in Table 5.3b of PBP that: "firefighting vehicles are provided with safe, all weather access to structures" and further that: "The road design, combined with the proposed additional measures, also aligns with the specific objectives for subdivision by ensuring access to hazard vegetation, thereby facilitating bushfire mitigation efforts and fire suppression activities. The current design, featuring an 8-meter-wide carriageway (excluding parking), would effectively support safe access and egress for residents during a bushfire emergency, even as emergency services personnel are arriving to conduct firefighting operations. Additionally, it is my opinion that the current Stage 9 design provides adequate operational access for emergency services personnel, ensuring they can efficiently manage firefighting and emergency response activities at the interface." (Exhibit 10)
For the reasons that follow, I do not accept that either of the performance-based solutions in Stage 8A or Stage 9 of the proposed subdivision meet the intent of the Access bushfire protection measure. My reasoning is: 1. The first general requirement for Access (general requirements) is not met by the development application in Stages 8A and 9 as a 'perimeter road' is not provided. 2. Further, when reference is made to the performance requirements for perimeter roads (or on the Applicant's case non-perimeter roads) the acceptable solution is the provision of an 8m wide carriageway (or on the Applicant's case a 5.5m carriageway). Neither is not met as the development application proposes only a 4-metre-wide pavement in both the ROW proposed in Stage 8A and in terms of the extended driveways in Stage 9. The reduction in width impacts on risk in at least three ways. Firstly, it reduces the separation of the residential lots from the bushfire interface, secondly it reduces the width of the egress path and finally it reduces the space to provide safe operational access to structures and water supply for emergency services. The reduced width impacts the ability of the performance-based solution to meet the intent of the Access bushfire performance measure, thereby failing to meet the requirements of PBP at A2.4 of Appendix 2. 3. I accept the evidence of Mr McMonnies that the reduced width impacts the feasibility of the fire trail in Stage 8A to serve the function of both and egress for residents and to provide safe operational access to structures and water supply for emergency services. This conflict between residents seeking to egress and the firefighting function is a detrimental likely impact of the proposed development. 4. Further, in relation to Stage 8A whilst I accept that the proposed terms of the 88B Instrument at [65] and the consent conditions will require future land owners to ensure the ROW is clear, such a legal right on title is less than that a dedicated roadway. I give weight to concerns raised by Mr McMonnies about the potential impact on operational access to the bushfire interface arising from the ROW being of a different character of a public perimeter or non-perimeter road. 5. I find that the intent of the Access measure to provide safe operational access to structures and water supply for emergency services and residents are seeking to evacuate from an area is not met by the Applicant's performance-based solution in Stage 8A of the subdivision. 6. In relation to Stage 9, I accept the evidence of Mr McMonnies that the proposed concrete driveways now located between Lots 914 & 915, 916 & 917, and 918 & 919 (the performance-based solution) does not meet the intent of the Access bushfire protection measure. I accept and adopt his reasoning that the shared driveways between the proposed lots do not allow a coordinated and efficient response by fire fighters undertaking fire suppression and property protection activities. I am persuaded by his evidence that the effect of the design of the extended driveways is that, in event of a fire, separate appliances and crews would need to be deployed at the end of each driveway which would operate independently. This is in contrast with the acceptable solution of a perimeter road which he argues would allow crews to move across the face of the bush interface in a coordinated manner. I accept his evidence that the three shared driveways proposed will separate and duplicate resources. 7. I find that the intent of the Access measure to provide safe operational access to structures and water supply for emergency services is not met by the Applicant's performance-based solution in Stage 9 of the subdivision.

[23]

Insufficient information: Aboriginal heritage.

The development application proposes earthworks resulting in a substantial change to the topographic profile of the site. These works include excavation, cut and fill and construction of civil infrastructure such as retaining walls, culverts and scour protection, creek regrading and stormwater drainage infrastructure. The statement of environmental effects (SEE), dated 21 May 2024, describes the works as generally requiring up to 8m of cut and 6m of fill.
The development application is accompanied by a geotechnical report and there is no contention that the scope of earthworks is not feasible.
Pursuant to cl 6.2 'Earthworks' in LEP 2013, before granting development consent to development involving earthworks, the consent authority must consider the matters listed at sub cl (3) of the provision. Those matters are: (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
Relevantly, at sub cl 6.2(3)(f) is the matter of the likelihood of disturbing relics.
Further, in determining the development application, I am required by s 4.15(1)(b) of the EPA Act to take into consideration "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality."
In addition to the substantial earthworks and civil works, one of the works proposed in the development application is the construction of the internal bridge, as part of Road 10 - Fire tail 02, from Araluen Terrace to Foxground Reserve. During the hearing, the Court raised concern with the Applicant that the scope of the Aboriginal Cultural Heritage Assessment (ACHAR) and the further letter from McCardle Cultural Heritage do not assess the likelihood of risk arising from the works associated with the construction of this infrastructure on any Aboriginal artefacts present.

[24]

Information in the development application

In addition to the plans and the SEE, there are three key relevant documents included in the development application: 1. Archaeological desktop assessment, dated 15 September and 5 October 2022. 2. ACHAR, dated 5 December 2022. 3. Correspondence from Heritage NSW dated 17 July 2024. 4. Response to correspondence from Heritage NSW by McCardle Cultural Heritage dated 26 July 2024.
The SEE notes that the Aboriginal Heritage Information Management System (AIHMS) indicates that there is one known Aboriginal site on land. That site (52-5-0936) contains two artefacts. The development application intends to impact that site and the SEE notes that an Aboriginal Heritage Impact Permit (AHIP) is required.
The Applicant elected their development application as integrated development pursuant to s 4.46 of the EPA Act. The development application was referred to National Parks and Wildlife Service given that, in order for the development to be carried out, an approval under s 90 of the NPWS Act for a parallel approval to the impact proposed to the identified Aboriginal objects (AHIP). An AHIP gives permission to harm Aboriginal objects or places and sets out conditions to comply with. The issuing of an AHIP is governed by Pt 6 Div 2 of the NPWS Act. The scope of the AHIP sought pursuant to s 90 of the NPWS Act is to destroy site 52-5-0936.
Relevantly, the SEE also identifies that a search of the AIHMS Register identifies 21 known Aboriginal sites within two kilometres of the site.
The likely impacts of the proposed development on Aboriginal heritage is a matter of consideration in the development application in at least three ways. 1. Firstly, it is a likely impact of development that is a matter of consideration under s 4.15(1)(b) of the EPA Act; 2. Secondly, as detailed at [55], the Court on appeal has the power pursuant to ss 39(5) and (6) of the LEC Act to grant consent to that application where concurrence has not been provided; 3. Pursuant to cl 6.2 'Earthworks' in LEP 2013, the Court is required to give consideration to a number of matters listed at subcl (3). One of the matters listed for consideration is subcl (3)(f) 'the likelihood of disturbing relics'.
There is no detail apparent in the SEE, or from the form of the subdivision design itself, that the identified artefacts at Site 52-5-0936 were sought to be retained on site. It can be deduced that this arises from the extent of civil works (cut and fill) required for the development, the central location of the artefact site within proposed Stage 7 and the conclusions and recommendations of the Archaeological Desktop Assessment which found that the artefacts themselves are of low archaeological significance. Further, Registered Aboriginal Parties identified no cultural significance of the site.
Initially the request for concurrence from Heritage NSW was rejected through the NSW Planning Portal. The reasons for rejection were documented as: "The agency returned this request for the following reason/s. This referral has not be accepted at this time as the application does not include the information required for heritage assessment. The documentation provided indicates that Aboriginal Cultural Heritage will be impacted by the proposal and a referral under the NWPS Act as integrated development is required. An Aboriginal Cultural Heritage Assessment Report (ACHARR) is required as a Desktop Assessment is not sufficient for heritage assessment." (Exhibit 3)
The Applicant prepared an ACHAR which was forwarded to Heritage NSW on 15 February 2024. After completing a review of the ACHAR, correspondence was received from Heritage NSW dated 17 July 2024 who declined to provide concurrence and requested additional information on the development application. Heritage NSW requested four items of additional information to allow them to complete their assessment:

Archaeological test excavations;
Additional assessment;
Additional mapping; and
Revisions to the ACHAR to comply with guidelines and legislative requirements.

Detailing those items more fully, firstly, Heritage NSW requested the Applicant to prepare and undertake a test excavation program to address the low ground surface visibility of the site and the potential for archaeological deposits to be present based on local and regional site patterns. In particular, the Applicant was requested to undertake test excavations in the southern portion of the site near the Creek. Once this work was completed, Heritage NSW requested that the updated report be provided to Registered Aboriginal Parties for comment prior to the finalisation of the report. Secondly, Heritage NSW requested the ACHAR be updated to include all parts of the development application area. Specifically, Heritage NSW noted that the ACHAR should be updated to include the part of the site nominated for Stage 9A. Thirdly, Heritage NSW requested further mapping to overlay the site boundary of the current development against the boundaries of the following: 1. The previous assessments referred to in the ACHAR, in particular the previous assessments by Austral (2019) and Biosis (2019); 2. The previous archaeological testing programs listed in the ACHAR, including Austral (2019); and 3. The boundary of previously issued AHIPs within or adjacent the site.
Finally, Heritage NSW requested some proof-reading or form changes to the report including a shorter executive summary and fixing two typographic errors.
On 26 July 2024, McCardle Heritage (MCH) prepared correspondence on behalf of the Applicant to respond to the request for additional information from Heritage NSW. In summary, that letter states: 1. MCH disagree with the need for a test excavation. MCH reasons that it is unnecessary as:

The existing ACHAR prepared by McCardle assessed the area requested by Heritage NSW, being the southern portion of the development area adjacent The Creek(the southern portion).
That assessment reasoned that the land in the southern portion was steeply sloping, and was disturbed through previous land practices (likely to a depth of 30cm) which would have impacted and redistributed any deposits that had existed. MCH notes the southern portion was subject to early large scale clearing and at least one ploughing event for improved pasture for grazing. MCH concludes that being a disturbed landscape with low archaeological potential, test excavations are not justified.
That, in addition to the ACHAR, a number of other studies and investigations have been undertaken by other consultancy firms which have concluded that the areas are disturbed. Further, these studies and investigations have no identified any new sites or areas of potential being present.
Other test excavations in the immediate vicinity (Potential Archaeological Deposit (PAD 4); site 52-5-0040) identified highly disturbed deposits with low density subsurface deposition.
On the basis of all the information available, the site of the development application has low archaeological potential and test excavations are not justified. 1. That the requested updated to the ACHAR to include Stage 9 will be completed as part of the updated AHIP application. No further information was provided as part of the development application. 2. Two figures are provided within the correspondence. The first figure maps the scope of the Austral (2019) and Biosis (2019) surveys and test excavations against the site boundaries of the proposed development. The second figure maps the location and extent of AHIPs within or adjacent the site. These figures and extracted at [117].

In relation to the third item in the preceding, after the hearing, the Court requested a copy of the original figures on which the MCH letter's conclusions were based. This request was made to assist the Court to read the Figures in the MCH letter due to the poor reproduction quality of the exhibit itself. The content of the Austral (2019) and Biosis (2019) reports was not further reviewed by the Court.
The MCH letter includes two figures. The first collates the extent of the Biosis (2019) and Austral (2019) ACHARs. The second collates the existing AHIP's as they relate the site of the proposed development.
In their response to the Heritage NSW letter, MCH does not provide any reasoning or justification as to why they conclude that the ACHAR does not need to be updated to include the area of the site proposed to be developed as Stage 9, only stating that it will be updated as part of an AHIP application.

[25]

Submissions

In his submissions, Mr Seton maintains the Respondent's contention that the development application should be refused as the Applicant has not demonstrated that the proposal will not have an adverse impact on Aboriginal cultural heritage. In response to the submissions of Mr Stafford, he submits that the beneficial and facultative character of the integrated development provisions does not mean the Applicant cannot deal with, or defer, the relevant issues with the development application process. Mr Seton argues that the need for integration and coordination between the requirements of different consent authorities was the purpose of the integrated development provisions. The aim was to redress the need, prior to the integrated development provisions, to modify a consent post determination when the other approval requirements of the State Agencies were known. The intent was to address all the requirements in one consistent assessment and consent process.
Further, Mr Seton reiterated that, in contrast to the Respondent as a consent authority, the effect s 8.14(4) of the EPA Act is (summarised at [52(4)]) is that the Court can determine to grant consent in the absence of concurrence from Heritage NSW or in a manner which is contrary to the general terms of approval provided from the relevant approval body. He submits, that when read with s 4.47(5) of the EPA Act, a determination of approval of the development application would tie the hands of Heritage NSW to not issue an approval that was contrary to the consent: Shoalhaven v Easter at [14]. That provision states: (5) If the approval body and the Planning Secretary fail to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of its approval - (a) the consent authority may determine the development application, and (b) if the consent authority determines the development application by granting consent - (i) the approval body cannot refuse to grant approval to an application for approval in respect of the development, and (ii) an approval granted by the approval body must not be inconsistent with the development consent, and (iii) section 4.50 applies to an approval so granted as if it were an approval the general terms of which had been provided to the consent authority, despite any other Act or law.
On this basis, Mr Seton maintains that, in determining the development application in the absence of concurrence from Heritage NSW, the Court would need to be satisfied that the requirements of the NPWS Act that are to be considered in the making of the determination: s 90K of the NPWS Act.
Mr Stafford made both oral and written submissions which I have considered in the determination of the development application. In his oral closing submissions, Mr Stafford acknowledged the issue raised by the Court in the proceedings, namely whether the impacts arising from the development on indigenous heritage are sufficiently certain. He noted that this was also raised by the Respondent within Contention 2 in the Statement of Facts and Contentions.
Whilst his submissions were comprehensive, in relation to Aboriginal Heritage they can be fairly summarised as: 1. That the provisions in the EPA Act in relation to integrated development are there for the benefit of Applicant's for development consent, not to hinder them: Maule v Liproni and Anor (2002) 122 LGERA 140; [2002] NSWLEC 25 at [84]. 2. In circumstances where the integrated body has either not provided GTAs, nor indicated they do not intend to, there is no proper basis (in law or fact) for the Court to refuse the development application on the basis of some presumed issue that those approval bodies may or may not have if they issued or refused GTAs. 3. In relation to Aboriginal heritage, an ACHAR was prepared for the proposal. The ACHAR included a survey of the project area, and concluded that only two artefacts were identified, in site 52-5-0936. Those artefacts will be impacted by the development, but after assessment the ACHAR determined that they were of low significance. Further, the ACHAR concludes the site is well represented both locally and regionally and is highly disturbed and that the cumulative impact to Aboriginal heritage in the area is limited. 4. Aboriginal stakeholders have identified no cultural significance in the project area, or site 52-5-0936. 5. The delay in the response from Heritage NSW has meant the Applicant has not had time to address the feedback from them. 6. The Respondent has brought no expert witness or raised a contention to the contrary.
Given the preceding, Mr Stafford's primary submission is that the Court, in determining the development application, should approve the development application with appropriate conditions that require the obtaining of the necessary approvals under the NPWS Act: s 8.14(4) of the EPA Act and Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28 at [158]-[159]. He argues it is clear from s 4.47 (5)(b)(i) and (ii) (extracted at [120]) that the grant of development consent does not free the Applicant from the requirement to obtain an AHIP prior to commencement of works.
Finally, Mr Stafford submits that the ACHAR undertakes a thorough assessment of whether the proposed development will have an adverse impact on Aboriginal cultural heritage. He argues this on three grounds. Firstly, following a survey no additional sites were identified, beyond the known and mapped Site 52-5-0936. Secondly, an assessment of site 52-5-0936 in the ACHAR confirmed it to be of low scientific significance. Consultation confirmed it was of low cultural significance. Thirdly, the request of Heritage NSW for further assessment in Stage 9 is nonsensical as the whole of the project area was divided into survey units in the ACHAR.

[26]

Findings

For the reasons detailed below, I find that there is insufficient information in the development application to understand the likely impacts of the works proposed in the development application on any potential aboriginal artefacts on the site. As such I am unable to take these likely impacts into consideration in the assessment of the development application.
I find there is insufficient information in two ways. Firstly, I disagree with the submissions of Mr Stafford that the ACHAR divides the whole of the project area into the nominated three survey units. These survey units do not encompass the whole of the land the subject of the development application. Therefore, the whole of the relevant land was not assessed in the ACHAR. The ACHAR submitted with the development application applies a methodology of 'survey units' (Northern, Middle and Southern) to determine the area of survey. The boundaries of these survey units, when correlated with the site boundary of the development application do not encompass all of the site, or all of the locations where work is proposed. For example, the site of Road 10- Firetail 02, from Araluen Terrace to Foxground Reserve is not contained within either of the nominated survey units in the ACHAR. By reference to the civil engineering plans, this bridge will involve physical works on the bed of depression (culverts) and works on the banks.
Further, from a review of the figures extracted at [116], it is clear that there are portions of the site proposed for subdivision in the proposed development application that have not been incorporated in either the Biosis (2019) or Austral (2019) assessment, or those associated test excavations. As demonstrated by the extract of Figures 1 and 2 from the MCH letter, the area of the proposed Road 10- Firetail 02, from Araluen Terrace to Foxground Reserve did not form part of the earlier studies, or current AHIPs.
Secondly, Mr Stafford's submissions, summarised at [122(3)], are inconsistent with the evidence of MCH. Heritage NSW requested update to the ACHAR to include Stage 9. The response from MCH was that this would be completed as part of the updated AHIP application. No further information was provided as part of the development application. There is no evidence that this response from MCH was proffered out of politeness as he submits.
There are areas of the proposed site where works are proposed that have not been assessed for the likelihood of the works to disturb relics. Both the Archaeological desktop assessment and the ACHAR note that archaeological expectations within the site vary dependant on landform, proximity to food resources and to water. The desktop assessment reasons that: "Considering the AHIMS results, local and regional archaeological investigations as well as the environmental context, given that fresh water was necessary for survival the presence of a 3rd order creek 20 metres north of the project area as week as a low-density artefact scatter being located in the project area, indicates areas along the creek may have been used for hunting and gathering activities as well as travelling following heavy rain, rather than large-scale long term camping. Evidence of such past Aboriginal land uses manifest in the archaeological record as low-desnity artefact scatters and isolated finds." (Exhibit A)
This conclusion is supported by the ACHAR which notes at Section 5.10 'Predictive Model for the Project Area' that the presence of third order streams is a relevant consideration in the determination of likelihood of the presence of artefacts and that in test excavations within the project area isolated finds have been located. Given this, it is not the case that the likelihood of any artefacts within the bounds of the areas proposed for development under the development application that have not been assessed is unlikely or a remote possibility.
The legislative scheme at s 4.47 of the EPA Act has the effect that if I were to grant approval to the development application (including the bulk excavation and bridge works), any subsequent approval of Heritage NSW must not be inconsistent with that consent. As a result, any AHIP issued cannot be inconsistent with an approval for works which, by their scope and nature, have potential to impact subsurface artefacts.
I note that if, in the future, a determination is made that such artefacts are present on the site, that is not conclusive of the merit of the application. If archaeological test excavations identify the presence of artefacts, it would also be necessary to undertake appropriate consultation, assess and determine the nature and significance of the archaeological deposits, and ascertain the potential impact of the proposed development on that significance.
I am satisfied that if I were to grant consent in the absence of the further information requested by Heritage NSW (in particular the Archaeological test excavations and the additional assessment) then such a consent would granted, without knowing, assessing and weighing the merits of all the impacts of the proposed development. The effect of the grant of consent to the development application in the absence of such a determination would be to grant approval to works whose impacts on Aboriginal archaeology are unknown. Such a determination which would be contrary to s 4.15(1)(b) of the EPA Act, which requires the consent authority to consider the "the likely impacts of that development". As held by Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [38] to undertake an evaluation of the likely impact of the proposed development, it is necessary to understand those impacts. In the circumstances of this case, there is insufficient information to determine those impacts.
Further, at cl 6.2(f) of LEP 2013, the consent authority is required to consider the likelihood of the development the subject of the development application disturbing relics and any appropriate measures proposed in the development to minimise or mitigate those impacts. As noted at [110] there is no detail provided within the development application that details how the impact (destruction) of the known artefacts at site 52-5-0936 have been minimised or mitigated. Further, given my finding that the development application does not provide sufficient information to determine the likelihood of the presence of artefacts in areas where works are proposed, I am unable to meaningfully consider the matters listed at cl 6.2 of LEP 2013 in the evaluation of the merits of the application under s 4.15 of the EPA Act.
Finally, I find that the proposed imposition of a condition requiring the undertaking of test excavations post consent is inappropriate as a condition does not relieve a consent authority from the obligation to take into consideration all matters of relevance to the development the subject of the development application under s 4.15(1) of the EPA Act: Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at [275]-[276]; Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at [93]-[94]. I accept and adopt Mr Seton's submissions in this regard.
This finding is consistent with the conclusions of Dixon C and Sullivan AC in Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure & Anor; Australian Walkabout Wildlife Park Pty Limited (ACN 115 219 791) as Trustee for the Gerald and Catherine Barnard Family Trust v Minister for Planning and Infrastructure & Anor [2015] NSWLEC 1465 at [260] (Darkinjung v Minister for Planning). In that case, the Commissioners held that the incomplete investigations requested by Heritage NSW raised concerns about whether the area had been sufficiently examined to confirm that the full extent of the sites and their significance were known, and whether the potential for additional sites had been effectively predicted. Further, the Commissioners in Darkinjung v Minister for Planning held at [284] and [298] that a conclusive understanding of the potential extent of artefacts should be completed prior to the decision to grant consent to a development application including a consideration whether any such impact could be mitigated through a redesign of the proposed development: Darkinjung v Minister for Planning at [339].
Consistent with the correspondence of Heritage NSW, I find that the development application should be refused for the reason that the impacts of the development are unclear and uncertain due to a lack of information to determine the likelihood of the presence of artefacts in locations where development (works) are proposed.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (28 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (15)