Easter Developments Pty Ltd v Shoalhaven City Council

Flood risk (Contention 10)

1. The Respondent contends at Contention 10 that the Proposed Development is not compatible or consistent with the provisions of cl 5.21 of the SLEP or the provisions of Chapter G9 of the SDCP as the subdivision of flood prone land is not permitted, the risk to life in the floodplain is increased and the effects of climate change have not been considered. Particular (b) of Contention 10 relates to the objective at cl 5.21(1)(b) reproduced below.
2. The Proposed Development seeks to import fill onto the Site to raise the level of the ground with the agreed effect of reducing the flood risk from high hazard to low hazard affectation in the 1% AEP event (Flooding JER at page 4). I reproduce at Fig 2 the relevant map which show this. Fig 2: Flood maps, Ex A, Tab 25
3. The first disagreement between the experts is that Ms Collier contends that the Inter-governmental Panel on Climate Change (IPCC) guidance regarding the sea level rise projections of around 0.9 m by 2100 should be utilised (Flood JER pages 5 and 7) whereas Mr Li has relied on the SDCP projection of sea level rise by 2100 to be 0.41m. The Respondent submits that as cl 5.21(3)(a) of the SLEP requires the Court to consider flood behaviour as a result of climate change, the Court is permitted to have consideration of the levels referenced by the IPCC. I agree. Accordingly, the Court accepts the evidence of Ms Collier as to the impacts assuming the IPCC sea level rise projections by 2100 as set out in the Flood JER at pages 5 and 9.
4. The proposal to import fill onto the Site is to reduce the flood risk to low hazard in 1% AEP. The first particular of Contention 10 deals with Performance Criteria P3.2 as well as Schedule 2 of Chapter G9 of the SDCP. Chapter G9 is titled "Development on Flood Prone Land" and Performance Criteria P3.2 is included under part 5.3 of Chapter G9 titled "Subdivision in the Floodplain" and provides as follows: "P3.2 The proposed subdivision will not create new lots that are affected by a high hazard area, or floodway in today's flood conditions or in climate change conditions up to the year 2100."
5. Ms Collier at page 5 of the Flood JER refers to contemporary assumptions around climate change and states "This depth would need a corresponding increase in velocity of up to 0.6 m/s in the 1% AEP under future conditions (up to 2100) for the site to be classified as high hazard under the floodplain development manual (2005) definitions. Whilst it is unclear if the velocity would reach this threshold in the future, it is a reasonable concern to create additional flood-prone allotments that would be subject to increasing risk over time"
6. Notwithstanding Ms Collier's concern, there is no evidence before the Court to contradict the Applicant's evidence, that is, there is no evidence that the Proposed Development will create new lots that are affected by high hazard area, or a floodway in today's flood conditions or in climate change conditions up to the year 2100.
7. The other impact is on safe evacuation and potential risk to life which I come back to at [35] below.
8. Mr Li points out that "the proposed development is a 3-lot land subdivision. It is important to note that the Flood Planning Level will be taken into consideration for the future residential development including residential dwellings, which will undergo a separate Development Application process." (Flood JER, page 7). The planning matrix in Chapter G9 of the SDCP is consistent with Mr Li's approach as it provides measures or requirements at subdivision stage and other measures and requirements at construction stage. I come back to this matrix below at [40] and to the Respondent's submission that the Court should consider future impacts when determining an application for consent for subdivision of land in accordance with the planning principle in Parrott v Kiama [2004] NSWLEC 77 revised - 16/03/2004 at [17].
9. I find that it is appropriate and permitted to consider the IPCC sea level rise projections when considering the matters in cl 5.21(3) of the SLEP and forming the state of satisfaction required by cl 5.21(2) of the SLEP.
10. The second disagreement between the experts is in relation to safe evacuation (cl 5.21(2)(c) of the SLEP) and Ms Collier considers that it is appropriate to consider evacuation in the Probable Maximum Flood (PMF), not only in the 1% AEP despite the planning matrix in Schedule 2 of the SDCP specifying only the 1% AEP event, Flood JER pages 8 and 9. The Respondent submits as follows (Written submissions page 20): "Considering evacuation in the PMF, not only the 1% AEP, would be consistent with the objectives of the DCP, which are to ensure the impacts of the full range of flood sized up to an including the probably maximum flood are considered (see Chapter GP DCP, cl 4.ii Bundle, Tab 31, Folio 124) and cl 5.21 of the LEP, which generally requires safe evacuation of people in the event of a flood to be considered (and does not tether that requirement to only the 1% AEP flood level). Even using Council's less conservative sea level rise projections, the PMF is estimated at 3.6m AHD at 2100; Joint Flood Report, p 5). In circumstances where the site is proposed to be filled to 2.25m AHD, that means flood waters in the region of 1.35 metres over the proposed evacuation route in the PMF/ Based on the applicant's own material (JCO Consultants, Flood Impact Assessment, Revision E, Applicant's Bundle, Exhibit 1, Tab 25, folio 188), flood waters of that level would place the hazard category in H#, or H4, both of which confirm the evacuation route would be unsafe."
11. I will come back to safe evacuation (cl 5.21(3)(c) of the SLEP) below from [35].
12. A description of the Site is helpful to appreciate the context of the flood risk contentions. From the ASOFAC the Site is located within the floodplain of Moona Moona Creek, a tributary of Jervis Bay. Flood behaviour is documented in the Currambene and Moona Moona Creek Floodplain Risk Management Study and Plan prepared by WMAwater for Shoalhaven City Council in 2016. The study shows that the Site is affected by flooding in the 1 in 50 AEP (or 2%AEP flood) and greater flood depths in rarer events, being entirely inundated in the PMF. The Site comprises areas mapped as follows: 1. in the 1% AEP under existing conditions as High Hazard Flood Storage and Low Hazard Flood Fringe. 2. in the 1% AEP at 2100 as High Hazard Flood Storage and Low Hazard Flood Storage and Low Hazard Flood Fringe. 3. in the PMF as High Hazard Floodway.
13. The Flood Planning Level (FPL) is currently reported to be 3.0m AHD and the PMF level is reported to be 3.6 m AHD. The FPL is based on a sea level rise projection of 0.41 m at 2100 and no allowance for rainfall intensity increase for the 1% AEP. Aspects of the site flood behaviour are also detailed on flood certificate D21/542814 dated 16 December 2021.
14. The Site is zone R2 Low Density Residential pursuant to the SLEP and is located within areas mapped as coastal wetland proximity area, coastal use area and coastal environment area under the State Environmental Planning Policy (Hazards and Resilience) 2021.
15. The wider locality to the north, east and south comprises similar R2 zoned land. Moona Moona Creek is located to the north and northwest of the subject site and flows directly into Jervis Bay to the Site's north-east. Huskisson-Vincentia Sewage Treatment Plant is located to the south-west of the Site and provides sewage treatment services for development in the surrounding locality.
16. The Flood planning provision of the SLEP at cl 5.21 provides as follows: 5.21 Flood planning (1) The objectives of this clause are as follows - (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change, (c) to avoid adverse or cumulative impacts on flood behaviour and the environment, (d) to enable the safe occupation and efficient evacuation of people in the event of a flood. (2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development - (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. (3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters - (a) the impact of the development on projected changes to flood behaviour as a result of climate change, (b) the intended design and scale of buildings resulting from the development, (c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood, (d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion. (4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause. (5) In this clause - Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department's website on 14 July 2021. flood planning area has the same meaning as it has in the Floodplain Development Manual. Floodplain Development Manual means the Floodplain Development Manual(ISBN 0 7347 5476 0) published by the NSW Government in April 2005.
17. With respect to cl 5.21 of the SLEP, the Respondent submits that the Proposed Development is not consistent with the provisions of the clause, is not compatible with the flood function and behaviour of the land and does not incorporate appropriate measures to manage risk to life in the event of a flood and the effects of climate change (Flood JER, pages 6 and 8)
18. The experts agree that the Proposed Development is compliant with the SDCP because the Proposed Development seeks consent for a subdivision (Transcript 27 July 2023, page 16).
19. The experts considered the Flood Impact Assessment (Rev E) prepared by JCO Consultants Pty Ltd dated 6 April 2023 (Ex A, Tab 25)) among other documents listed in the Flood JER at par 5.

Safe occupation and efficient evacuation

1. The Proposed Development includes plans showing building envelope "Proposed Subdivision V3" dated 20 March 2023 referred to by the parties as the building envelope plan which I reproduce below at Fig 3. Fig 3: Building Envelope Plan, "Proposed Subdivision V3" dated 20 March 2023
2. Particular (c) of Contention 10 related to objectives at cl 5.21(1)(d) and cl 5.21(2)(c) which provides that development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development - … (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood,
3. The experts do not agree because Mr Li relies on compliance with the requirements of the SDCP matrix for the 1% AEP, whereas Ms Collier is of the opinion that the Site will not be safe to evacuate in the PMF event.
4. The Respondent is concerned at Particular (d) of Contention 10 that by increasing the number of persons residing in the floodplain, the Proposed Development is not consistent with Performance Criteria P1 in section 5.1 of Chapter G9 of the SDCP, that is that the Proposed Development does not meet the following: "• The development will not increase the risk to life or safety of persons during a flood event on the development site and adjoining land." (Emphasis added.)
5. Ms Collier says that Subdivision of land has the overall effect of increasing the number of persons exposed by at least 2 and potentially up to 8-10 persons (Flood JER, page 10) and that the Site has been identified to be located in a high hazard floodway for the PMF event and that by the time the flood level reaches 3m AHD it will not be safe to evacuate on foot or by vehicle via the identified paths (Flood JER, page 8). "While the DCP identifies the 1% AEP event for consideration for reliable access, this is not wholly consistent with the provisions of the LEP that … does not limit the consideration of risk to life to only the 1% AEP event … flood emergency response planning is required for all events up to and including the PMF." (Flood JER, page 9)
6. The Applicant relies on the SDCP Development Controls Matrix in Chapter G9 (Tab 31, Ex 1) where the table for Low Hazard flood affected sites specifies the requirements to be satisfied for "Subdivision" which provides 2 matters in the context of Access only. Those 2 matters are as follows: 1. Reliable emergency vehicle access is required for ambulance, SES, fire brigade, police and other emergency services during a 1% AEP flood event; 2. Reliable access for pedestrians is required during a 1% AEP flood event.
7. The Proposed Development complies with the SDCP and the specific requirements of the matrix (Transcript 26 July 2023, page 19 at par 49).
8. Ms Collier is concerned that the SDCP matrix is mismatched with the broader objective 5.1.ii of Chapter G9 which is to ensure the impacts of the full range of flood sizes up to and including the PMF are considered when assessing development on flood prone land within the Shoalhaven. I agree that none of the flood related development controls of the Schedule 2 matrix relating to single residential/habitable building in the Low Hazard category require any reference to the PMF, that is that the specific requirements are limited to the 1% AEP.
9. I accept the Applicant's submission that the Proposed Development is fully complaint with the SDCP flooding controls because the only requirement the Court has to have regard to is the requirement for emergency vehicle and pedestrian access in the context of an application for subdivision.
10. The Respondent submits that despite the arguable numerical compliance with the SDCP, the impacts warrant refusal of the development on flooding grounds. "As the Council's expert stressed, increasing the number of persons residing in the floodplain increases the exposure of persons affected by flooding. That should not be countenanced in respect of this proposal, which has failed to respond to the constraints of the site in multiple respects." (Written submissions, page 21). The concern about the site constraints arise in the context of impacts, namely privacy impacts to the neighbour to the north of the Site and internal solar access to one of the future dwellings. I come back to these impacts when I deal with the planning contentions.
11. Mr Li, in oral evidence, is of the opinion that during flooding events where safe evacuation is not available from the Site, the future occupants may shelter in place. I accept Mr Li's evidence as an appropriate solution and note that the Proposed/Draft Conditions of Consent (Ex 7) include a requirement to register on the future titles of the proposed subdivision a restriction as to uses pursuant to s 88B of the Conveyancing Act 1919 stating that: "no building or dwelling is to be erected on any Lot unless a Flood Evacuation Plan is prepared to ensure permanent, fail-safe, maintenance-free measures are incorporated in the development to ensure that the timely, orderly and safe evacuation of people is possible from the are and that it will not add significant cost and disruption to the community or the NSW SES. In circumstances where flood evacuation is not possible (such as during a flash flood), the Flood Evacuation Plan must detail how shelter-in-place will occur before, during and after the flood event (including access to services, food, water, and medical emergency services). Any Flood Evacuation Plan is to consider all flood events up to and including the Probable Maximum Flood event, being a level of 3.6m AHD." (Condition 69(b), Ex 7)
12. I conclude that, for the reasons given above, the Proposed Development has considered the matters in cl 5.21(3) of the SLEP and the Court is satisfied of the matters listed in cl 5.21(2) SLEP. The Applicant also referred the Court to the council engineer's assessment, Mark Stone, included with the Flooding JER at Appendix C which arrived at the same conclusion.

Bushfire (Contentions 1 and 9)

1. It is agreed that following an assessment of the required area of the APZ by reference to the provision of Planning for Bush Fire Protection 2019 (PBP) an area of 21.5m is agreed between the experts to be the distance that is required to address the bushfire risk to the property based on the building envelopes identified in the Proposed Development as depicted in Fig 3. The Respondent submits that the 'battleground' will lie in whether or not it is appropriate to rely upon 6m of the 21.5m being 6m within the council reserve rather than in the technical application of planning for bushfire as it relates to the calculation of the required distance. (Transcript 25 July 2023, page 15).
2. I have distilled the issues to the following questions to be answered: 1. What is the jurisdiction of the Court pursuant to s 4.47 of the EPA Act in the context of integrated development where there is no bush fire safety authority from the NSW RFS pursuant to s 100B of the Rural Fires Act? The answer lies in s 39(6) of the LEC Act. 2. Is the council land 'managed' land? 1. If yes, then it may be considered as a performance based solution pursuant to the PBP, Section 3.2.5 APZs on adjoining land; or 2. If no, then the Applicant seeks the opportunity to apply for an easement over council land pursuant to s 40 of the LEC Act.
3. The Respondent's Contention 9 is that the Proposed Development, being for the subdivision of bush fire prone land that could lawfully be used for residential or rural residential and as such requires a Bush Fire Safety Authority under s 100B of the Rural Fires Act. The Proposed Development is lodged as integrated development under s 4.46 of the EPA Act and approval under s 100B of the Rural Fires Act is required (Respondent's Written Submissions, par 6).
4. The Proposed Development relies on public land to meet APZ requirements of a total of 21.5m from the proposed building footprint with 15.5m provided for on the Site and 6m on the Council land.
5. The Respondent contends at Contention 1, that the Development Application should be refused because the APZs are not wholly within the boundaries of the development site. The APZs rely upon a 6m APZ over the adjoining lot to the West, legally described as Lot 4 in DP 622283, and which is Council owned land. I reproduce the particulars of Contention 1 below as follows: "Particulars a. The proposed APZ over Council's land is contrary to clauses 3.2.5, 3.2.6, 5.2, 5.3.1 of Planning for Bush Fire Protection 2019. b. The surety of APZs and ongoing maintenance has not been considered. c. Owners consent from Lot 4 in DP 622283 has not been provided by the Applicant. d. The Development Application does not provide sufficient detail about the clearing work proposed within Council's reserve, particularly in relation to the permissibility of the removal, the type of vegetation that needs to be removed, the justification for that removal, and what the impacts would be to ensure compliance with the APZs."
6. To answer the first question, I make findings as to the status of concurrence and s 100B Rural Fires Act, namely the requirement to obtain a Fire Safety Authority pursuant to s 100B Rural Fires Act.
7. The ASOFAC states that General Terms of Approval from the NSW RFS have not been issued for the Amended Application, however, on 30 August 2023, the Respondent advised the Court that the "RFS has subsequently refused the concurrence and determined that insufficient information had been provided for RFS comment." On 1 September 2023, the Respondent forwarded a copy of letter dated 28 August 2023 to Shoalhaven City Council from NSW RFS (Ex 8) from which I extract the relevant paragraph as follows: "The New South Wales Rural Fire Service (NSW RFS) cannot support the proposed development. Previously requested information was not received within the legislative timeframe to allow for assessment of the application against the Aims and Objectives of Planning for Bush Fire Protection (2019)"
8. There are previous letters from the NSW RFS which are in evidence. Firstly, the Respondent relies on the NSW RFS letter dated 11 May 2023 (Tab 52, Ex 1) requesting information within 100 days. The Respondent submits (page 7 written submissions) that: "in circumstances were the 100 day period identified in the 11 May 2023 letter has not yet expired, there is no refusal from the RFS that would trigger the operation of s 4.47(4) of the EPA Act. It is not contended that the RFS's request for further information otherwise impacts upon the jurisdiction of the Court to determine the application."
9. The other two previous letters from the NSW RFS dated 17 August 2022 and 12 April 2023 issued General Terms of Approval (GTA) on both occasions. Mr Short suggests in the Bushfire JER that perhaps there is still an extant bushfire authority that can be relied on and I accept the Respondent's submission in opening that if that were the case, the Court would need to be satisfied that the APZ on council land will be managed for the life of the development (Transcript 25 July 2023, page 36 at par 10). The Applicant submits in opening that the 12 April 2023 letter from the NSW RFS includes GTA in respect of plans before the latest amendments to the plans and that the amended plans are not different in terms of what it was that the NSW RFS had to consider (Transcript 25 July 2023 page 43 at par 25). The bushfire experts have settled on an appropriate agreed condition of consent 1A, using the NSW RFS's GTA as a template document in the event the Court were to grant development consent (Transcript 26 July 2023, page 31 at par 13). The Draft/Proposed Conditions of Consent (Ex 7) also include a condition referencing the GTA of the NSW RFS letter dated 12 April 2023 at Condition 9.
10. As the Proposed Development is integrated development a bush fire safety authority is required from the Commissioner of the NSW RFS pursuant to s 100B of the Rural Fires Act which provides as follows: S 100B Bush fire safety authorities (1) The Commissioner may issue a bush fire safety authority for - (a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or (b) development of bush fire prone land for a special fire protection purpose. (2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire. (3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1). (4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations. (5) Development to which subsection (1) applies - (a) does not include the carrying out of internal alterations to any building, and (a1) does not include the carrying out of any development excluded from the operation of this section by the regulations, and (b) is not complying development for the purposes of the Environmental Planning and Assessment Act 1979, despite any environmental planning instrument. (6) In this section - special fire protection purpose means the purpose of the following - (a) a school, (b) a child care centre, (c) a hospital (including a hospital for the mentally ill or mentally disordered), (d) a hotel, motel or other tourist accommodation, (e) a building wholly or principally used as a home or other establishment for mentally incapacitated persons, (f) seniors housing within the meaning of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, (g) a group home within the meaning of State Environmental Planning Policy No 9 - Group Homes, (h) a retirement village, (i) any other purpose prescribed by the regulations.
11. As explained in the Bushfire JER: "A BFSA authorises development to the extent that it complies with PBP including standards regarding setbacks, provision of water supply and other measures in combination considered by the Commissioner [of NSW RFS] necessary to protect persons, property or the environment from danger that may arise from a bushfire. As a new residential subdivision, the application needs to be able to justify that the proposal can achieve a worst-case Bushfire Attack Level (BAL) of a maximum of BAL-29 (29kW/m2 ) (PBP p. 43)"
12. The relevant provisions that regulate integrated development are s 4.47(4) and (5) of the EPA Act which I reproduce below as follows: (4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application. (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.
13. The Respondent's submissions, made prior to the NSW RFS letter dated 28 August 2023 (Ex 8), seem to imply that the Court would not have jurisdiction to grant development consent if the NSW RFS informs the council that it will not grant an approval pursuant to s 4.47(4) of the EPA Act (Transcript 25 July 2023, page 12 at par 1). This is not correct. The jurisdiction of the Court, after the NSW RFS letter of 28 August 2023 not supporting the Proposed Development is to be considered in accordance with s 39(6) of the LEC Act which provides as follows: Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body - (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and (b) in a case where the concurrence or approval has been granted - the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (Emphasis added.)
14. I am satisfied that the Court can determine the appeal pursuant to s 39(6)(a) of the LEC Act, and in that determination the contents of the NSW RFS letters dated 17 August 2022, 12 April 2023, 11 May 2023 and 28 August 2023 are all relevant matters for the Court to take into account.
15. The NSW RFS letter of 11 May 2023 contains the following relevant paragraph: "Council has instructed the assessing officer that the identified offsite APZ will not be managed in perpetuity and thus cannot be relied upon to provide sufficient separation to ensure a maximum radiant heat exposure of 29kW/m2 or less as established by Table 5.3a of Planning for Bush Fire Protection 2019. The applicant is requested to submit further details demonstrating how proposed building footprints and appropriate asset protection zones required by Planning for Bush Fire Protection 2019 can be achieved within the proposed subdivision."
16. It is uncontroversial that the NSW RFS would grant GTA included where there is a 6m borrowed APZ over the Council's land (Letters dated 17 August 2022 and 12 April 2023. Ex 1, Tab 49 and 51).
17. The Applicant bears the persuasive onus as to whether the Proposed Development crosses the threshold of acceptability in terms of bushfire risk and whether that risk is acceptable.
18. In order to answer this question, I need to move on to the second question.

The second question: is the council land 'managed land'?

1. Mr Short on page 10 of the Bushfire JER (Ex 4) states as follows: "The application does not seek to establish an APZ within the Council land. Rather, it seeks to rely for part of the APZ (6m) that has long been established within the Council land. As the APZ is long existing managed land, PBP provides for reliance on managed lands."
2. Mr Short then offers an easement under s 88K of the Conveyancing Act 1919 which could be a condition of consent if ongoing management of the APZ is in doubt. However, he states: "the applicant has not sought an easement over the Council land (6m APZ) as this land is already managed with a clear history of management and obligations and commitments captured within various documents. The applicant has relied upon the reasonable consideration of the ongoing management of the APZ. Importantly, where land is managed as an APZ, it does not require an easement as management is reasonably assured and relied upon." (Bushfire JER, page 10)
3. According to Section 3.2 of the PBP (Ex 1, Tab 36), an APZ is a buffer zone between a bushfire hazard and buildings and is managed to minimise fuel loads and reduce potential radiant heat levels, flame, localised smoke and ember attack. The APZ can include roads or properties managed to be consistent with APZ standard.
4. It is not disputed that the Council has bushfire risk management responsibilities (s 63, Rural Fires Act) however, the Council does not agree that the relevant Council land can be assumed to be managed land for the purpose of satisfying the APZ requirements sought by the Proposed Development. The Respondent submits that the Council land is not guaranteed to be maintained in perpetuity and cannot be considered to be 'managed land' capable of being included into the APZ for the Proposed Development.
5. The Applicant submits that the Shoalhaven City Council Bushfire Mitigation Program (Ex B) which sits under the Bush Fire Risk Management Plan (BFRMP) (Tab 42A, Ex 1) establishes a strategic approach to assessment of land and amelioration of bushfire risk and one of the objectives is the communication of community understanding. There is no evidence of any change to this strategy other than what appears to be verbal communication by a council officer to Mr Pascoe of the NSW RFS in relation to this particular APZ (Ex A, Tab 19, folio 104.66). To support the ongoing nature and currency of this strategic approach, the Applicant refers the Court to 4 other development consent in Ex G where 3 consents were granted for alterations and additions to residential dwellings in Vincentia resulting in the borrowing of 15m to 18m of a council APZ and an additional consent for a second storey addition in the neighbouring suburb of Huskisson with the same result of borrowing 15m to 18m of a council APZ to supplement the APZ area of the relevant Site. I accept the Applicant's submission that there is no document showing that the council had passed a resolution or formed a policy that it will not continue to manage the land and there is no evidence of any notice having been given to the adjacent properties at 17 and 19 Duncan Street Vincentia.
6. The PBP provides at Section 3.2.5 guidance on APZs on adjoining land and at first instance states that in order to guarantee that an APZ can be managed in perpetuity, or for the lifetime of the development, APZs should be contained within the overall development site and not on adjoining lands. In order to achieve the guarantee that the adjoining land will be managed in perpetuity, that adjoining land should have an easement under the Conveyancing Act 1919, s 88B. The situation is to be assessed on its merits. "Easements should not be considered where the adjoining land is used for a public purpose and where vegetation management is not likely or cannot be legally granted."
7. Here, the adjoining land is public land, owned by Council and is classified as Community Land - Natural Area, subcategory "Bushland" pursuant to ss 26 and 36(4)(a) and (5)(a) of the Local Government Act 1993. The relevant Plan of Management for the Council land is at Tab 42 of Ex 1 and Section 3.2.6 provides for bushfire mitigation and relevantly states as follows: "Council's extensive bushfire mitigation program establishes and maintains firebreaks and Asset Protection Zones on Council managed land to provide a measure of protection to adjacent private assets. … Permission to establish Asset Protection Zones for adjoining freehold development on public land will only be granted in exceptional cases, such as proposal involving infill developments or additions to existing developments where no other options are available. Any proposal to establish Asset Protection for new freehold subdivisions on adjoining public land will not be supported."
8. Part of the Council land is a mapped APZ or bushfire mitigation area maintained together with "over 200 sites as part of its an (sic) Annual Bushfire Mitigation Program to reduce the potential for bushfire to impact on assets the community values. … Sites on the program are slashed or mown up to three times a year throughout the bushfire danger period" (Ex C).
9. The Respondent submits that the Council land cannot be considered to be 'managed land' capable of being incorporated into the 21.5m APZ required for the Proposed Development because of Council's role and responsibilities under the BFRMP (Ex 1, Tab 42A) which is a document prepared and submitted by the Bush Fire Management Committee, not Council, constituted under s 52 of the Rural Fires Act. The Respondent submits that because the BFRMP is reviewed and updated every five years, there is a systematic process of the identification of assets and the allocation of risk priority by a body other than Council, from which the treatments are identified and that it is possible that the asset, namely, the existing APZ on the Council land adjacent to the Site, may not be allocated a treatment. The Respondent relies on previous identification of the asset as "medium" however I accept the evidence of Mr McMonnies that this may have been a 'mismatch' and not an accurate reflection of the risk rating. The Respondent suggests that "to guarantee to maintain the APZ in perpetuity on public land, irrespective of the risk assessment process prescribed by the BFRMP, would be to prefer this development over every other asset the subject of the BFRMP and would be inconsistent with the regime established by the Rural Fires Act for the investigation and prioritising of bushfire risk treatments in the state." (Written submissions, para 83). I reject this reasoning.
10. The court heard extensive evidence from the experts regarding the Annual Bushfire Mitigation Program.
11. Bushfire JER (Ex 4) at pages 3-4 includes the following agreed background: "The Shoalhaven Bush Fire Risk Management Committee is the body responsible for the identification and treatment of the Bush Fire Risk in this jurisdiction. Pursuant to section 52 of the Rural Fires Act 1997 a Bush Fire Risk Management Committee must prepare a bush fire risk management plan, which is to be reviewed within each successive 5 year period. The Shoalhaven Bush Fire Management Committee - Bush Fire Risk Management Plan 2018 (BFRMP), being approved on 7 March 2019, is the current BFRMP for this area. To assist in understanding the role of the BFRMP section 1.1 of this document states: A BFRMP is a strategic document that identifies community assets at risk and sets out a five-year program of coordinated multi-agency treatments to reduce the risk of bush fire to the assets. Treatments may include such things as hazard reduction burning, grazing, community education, fire trail maintenance and establishing community fireguard groups. Annual programs to implement the treatments identified in this plan will be undertaken by the relevant land managers and fire fighting authorities. The following outlines the aim and objectives of the BFRMP: The aim of this BFRMP is to minimise the risk of adverse impact of bush fires on life, property and the environment. … The subject site forms part of the "Bay & Basin Urban Interface" asset under the BFRMP and assigns a 'Very High' risk rating, various treatments and 2B priority. The listed treatments include the inspection and maintenance of Asset Protection Zones. Shoalhaven Council provides interactive mapping showing the location of sites captured by their Annual Bushfire Mitigation Program. Lot 4 DP 734884 is to the immediate west of the site and incorporates the designated APZ (Annexure 7) under Council's Annual Bushfire Mitigation Program."
12. The experts describe the Site in the Bushfire JER on page 2 as being "on designated Bushfire Prone Land (Annexure 3). The vegetation posing a hazard is mapped as Category 3 to the west and northwest of the site, before transitioning to Category 1 north of Moona Creek. Category 1 vegetation is present to the southwest of the subject site which is intersected by Category 3 vegetation, being a creek line, and then is Category 1. A description of the Bushfire Prone Land Categories is at Annexure 4, noting there is no Category 2 vegetation (lower bushfire risk than Category 1 and 3) within the assessment area). The site is within the 100 metre buffer from Category 1 vegetation and 30m buffer from Category 3 vegetation."
13. Mr McMonnies is of the opinion that the Site: "is of sufficient size to locate the entire 21.5m APZ wholly within the boundaries of the development site …The APZ within the site would occupy approximately 750sqm, with the total site are being approximately 2,092sqm, this would leave approximately 1,442sqm. Subject to other planning constraints it would be expected that an alternate subdivision design, potentially at a reduced yield, could achieve compliance wholly within the development site." (Bushfire JER, page 14)
14. On page 7 of the Bushfire JER Mr McMonnies identifies that the statutory Bush Fire Danger Period runs from 1 October to 31 March (6 month period), "however these dates may vary due to local conditions. A maximum slashing / mowing program of up to three times during this period is likely to result in periods where the APZ would not conform to the minimum standards, specifically grass not exceeding 100mm in height." Mr McMonnies attaches a photograph he took during his inspection on 21 December 2022.
15. On page 8 of the Bushfire JER Mr McMonnies refers to a decision by the NSW RFS that the longer grass did not represent a significant bush fire risk at the time and notes that the context of that assessment was the existing dwelling located 38.7m from the Council land boundary. The Proposed Development will have building footprints 15.5m from the Council land boundary.
16. Mr McMonnies is concerned that as no organisation has limitless resources there is a reliance on prioritising risk treatments (Section 3.2.6 of the BFRMP) and as such the treatment of the APZ on the Council land cannot be guaranteed to receive the treatment it currently receives. He goes on to explain at page 8 of the Bushfire JER that the available treatment priorities are Extreme (1A, 1B and 1C), Very High (2A, 2B and 2C), High (3A, 3B, 3C and 3D), Medium (4) and Low (N/A). The APZ within the Council land is currently assigned a Very High (2B) priority and is listed at 92 of 174 on the BFRMP treatment register.
17. Mr McMonnies stresses that "it is also important to note that as outlined by the Shoalhaven Bush Fire Management Committee 'treatments and works set out in the plans are subject to change on a yearly basis due to fire activity, weather and new risk factors.'" (Bushfire JER, page 8).
18. Finally, Mr McMonnies notes the following at page 13 of the Bushfire JER: "The BFRMP does not satisfy section 3.2.6 of the PBP as it does not provide the following content: The prescribed APZ requirements and its treatment details (eg IPA and OPA widths and fuel loads); The predicted timing intervals of the management options; Notification of any transition arrangements for management or ownership alterations which occur as result of land dedication or acquisition; Demonstration that the relevant authority has the necessary experience, resources and funds to undertake the directions; and Acknowledgement of responsibility from the adjoining landowner that the APZ will be managed in perpetuity."
19. With respect to Mr McMonnies, his content list above is a misapplication of Section 3.2.6 of the PBP which refers to the content of a Plan of Management which might be required "where developments propose to establish APZs off site on lands belonging to council or government where there is no guaranteed commitment to future management.".
20. The BFRMP include 4 types of assets including "Human Settlement" (Transcript 25 July 2023, page 31).
21. I accept the evidence of Mr Short that "regardless of this application, Council has an obligation to provide an ongoing APZ for 9 and 19 Duncan Street, Vincentia, as it does for other assets identified within the Bushfire Risk Management Plan and Council's Bushfire Management Program." The addresses referred to by Mr Short are also known as 17 and 19 Duncan Street Vincentia. As I said during the proceedings, I accept that the council APZ is for the benefit of the properties 17 through to 21 Duncan Street, Vincentia and that it may even be for the benefit of other properties but it is not clear whether it is and if it is, to what extent (Transcript 27 July 2023, page 7 at par 10). I also refer to the photograph of the signage on the council APZ, in evidence at Ex D, and find that the council APZ is also for the benefit of providing safe access for fire fighters and emergency vehicles.
22. At Ex C is the screen shot of the Respondent's online APZ map which provides that "sites on the program are slashed or mown up to 3 times a year throughout the bushfire danger period" which is consistent with the evidence of Mr McMonnies (Ex 4, p 7).
23. In addition to Ex C, the Court has before it evidence of a clear history of management of the portion of the Council land that is mapped APZ or bushfire mitigation area. The experts agree that the relevant land has been managed for over 20 years and there are the documents produced in Ex B which include the following: 1. Jervis Bay Natural Resource and Floodplain Management Committee report dated 23 November 2009 regarding the Bushfire Risk Management Plan which includes the Council land for Recurring, Mechanical Works 2009-2010; 2. 2011-2012 Recurrent Mechanical Works table noting the Council land in the Medium Risk category; 3. Document dated 29 July 2014 including an arial photograph of the Council land marked with yellow, indicating BFRMP Risk Level Medium and a notation "Maintain 6m off the rear boundaries of 17-21 Duncan St".
24. I accept that the Applicant is not seeking to establish a new APZ on land belonging to council as there is abundant evidence that there is an existing APZ on the Council land for the express purpose of providing bushfire protection to the adjacent residential land. As such, I find that a Plan of Management as referred to in Section 3.2.6 of the PBP is not required because there is already a Plan of Management applicable to the Council community land (Ex 1, Tab 42) which expressly addresses Bushfire Mitigation and asset protection.
25. The Proposed Development includes the following regarding management of the APZ on the Site, also referred to as the inner protection zone or IPA: 1. Bushfire Assessment Report, Version 3, Final, 3/06/2021 prepared by Bushfire Consulting Services dated 28 September 2021 (Ex A, Tab 12), 2. Proposed Consent Condition 1A Asset Protection Zone in accordance with Appendix 4 of the PBP (Ex 7).
26. I accept the Applicant's submission that there is no document showing that the council has passed a resolution or formed a policy that it will not continue to manage the council APZ land and there is no evidence of any notice having been given to the adjacent properties at 17 and 19 Duncan Street Vincentia.
27. Having considered all the evidence, I am satisfied that the relevant existing APZ on the Council land will remain adjacent to residential land and that it is improbable that any risk review will result in a change in treatment to that land which would increase bushfire risk to those existing residential assets. As such, I am satisfied that the existing APZ on Council land adjacent to the Site is managed land. Accordingly, it is not necessary to proceed to the next question regarding the need to afford the Applicant an opportunity to apply for an easement or other legal mechanism pursuant to s 40 of the LEC Act or s 88B of the Conveyancing Act 1919.
28. The Respondent submits that in relation to bushfire, there are no merit issues beyond those addressed above that require determination in the bushfire context (Written submissions, page 19, par 105). As the Proposed Development complies with the provisions of the SLEP, the assessment by the Court is a consideration of the town planning merit contentions.

Town Planning

1. The Site is a constrained site because of bushfire risk and flood risk (including coastal inundation) which in turn has determined the western setbacks of lots 32 and 33 (APZ) as well as their eastern setbacks (flood evacuation). Impacts include solar access to the proposed new southern lot and overlooking/privacy impacts to the neighbour to the north because of the 900mm side setback and raised building platform up to 1m resulting from the fill required to address flooding.
2. I accept the Respondent's submission that in accordance with the planning principle in Parrott v Kiama [2004] NSWLEC 77 revised - 16/03/2004, which supports the assessment of future development impacts when a subdivision application is assessed. I am satisfied that the future development impacts have been appropriately considered in the assessment of the Proposed Development. The consideration is largely in response to the town planning Contentions 2, 3, 4, 5 and 6 of the ASOFAC (Ex 2)
3. The relevant aims of the SLEP from cl 1.2 (2)(a) and (c) are as follows: 1. to encourage the proper management, development and conservation of natural and man-made resources; and 2. to ensure that suitable land for beneficial and appropriate uses is made available as required.
4. The identified future development impacts of the Proposed Development are limited to two.
5. The first identified future development impact of the Proposed Development is privacy or overlooking from the future dwelling at Lot 33 to the adjoining northern neighbouring property. It is said that this impact results from importing fill onto the Site for the purpose of reducing the flood risk hazards to low (SDCP G11 P85 A 84.1 re Lot 33 Contention 2)), and from the side setback of Lot 33 being 900m rather than the SDCP control of 5m (Contention 6). The Applicant makes note that "the new SDCP" no longer requires a 5m setback. Notwithstanding any new SDCP provisions, the current controls of the SDCP are the ones that apply to the Proposed Development which are to be applied flexibly pursuant to s 4.15(3A) of the EPA if there are alternative solutions. I am satisfied that sufficient potential solutions have been identified by the Applicant's expert, Mr Black, to address and mitigate the privacy or overlooking impact by either landscaping along the northern boundary and or implementing what is referred to as defensive architectural design such as 1.6m high sills, frosting of glass or other privacy screens. These solutions can be further explored and assessed in due course when a development application for the dwelling on that lot is lodged.
6. The second identified future development impact of the Proposed Development is internal to the Site and relates to solar access to the further dwelling at Lot 32 resulting from the lot orientation and proposed building envelopes with Lot 33. Mr Black's evidence is that the result is no different to any similarly oriented development.
7. I find, on balance, that the future development impact is reasonable in the circumstances of the Proposed Development.
8. The next merit concern is the Lot Shape and street frontage insofar as Lot 32 presents like a corner lot (Contention 4). The concern is limited to streetscape character in the event the future owners of Lot 32 seek to install a fence onto Albion Street because the primary outdoor space will be directly adjacent to the street.
9. Mr Swan's evidence is that: "Lot 32 will not be on a corner, and so, what you end up with is two corner lots next to each other, and Lot 32, being effectively designed like a corner lot, when its effectively not a corner lot, and it fronts Albion Street, and what does that result? What that results in is that the rear yard effectively is exposed to Albion Street. What does that result in an outcome? The outcome is that the owner of lot 32 would want to protect, from a privacy perspective, their rear yard from Albion Street. What that will ultimately result is in a fence, likely 1.8m high along effectively where the APZ area is, so that boundary, that rear yard is protected from Albion Street." (Transcript 26 July 2023 page 59, par 50)
10. Mr Black's evidence is that Lot 32 achieves the performance criteria in P79 of the SDCP and that a future owner may seek to install a low street frontage fence of 1m to 1.2m in height and that in any event the fence will be in accordance with council's controls.
11. Although, it may be that any future fence could be different to what is existing on the street, the concern in Contention 4 is not sufficient in my opinion to warrant the refusal of the Proposed Development and I also note Mr Black's evidence that it is likely that other properties will be updated in the future to address the flooding and other impacts which will have an impact on the streetscape.
12. Contention 6 does not warrant upholding because the Proposed Development complies with the minimum lot size development standard in cl 4.1 of the SLEP which requires a lot to be greater than 500m2 as opposed to the SDCP which seeks to impose a greater lot size of 650m2 for a battleaxe allotment. To adopt the language of the Applicant in closing submissions, the SLEP trumps the SDCP, as provided in s 4.15(3A)(a) of the EPA Act. The Applicant also informs the Court that the new DCP, whilst not applying to the Proposed Development, can give the Court further comfort in relation to the size of proposed Lot 33 as the new DCP no longer includes the battleaxe lot size provision greater than 500m2.
13. Finally, I am satisfied that the contention relating to the proposed retaining walls (Contention 2) has been adequately addressed in the Proposed/Draft Conditions of Consent (Ex 7) at Condition 35, and that this contention does not warrant the refusal of the Proposed Development.
14. For these reasons, I conclude that on an assessment of the merits of the town planning contention, there are no unreasonable impacts and development consent is warranted.

Other Jurisdictional matters

1. The State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) contains a number of provisions which require satisfaction of jurisdictional prerequisites. These provisions are ss 2.8, 2.10 and 4.6.
2. The Site is partly identified as "proximity area for coastal wetlands" on the Coastal Wetlands and Littoral Rainforests Area Map and the parties are satisfied that the requirements of s 2.8 of the Resilience and Hazards SEPP are satisfied. The Court is also assisted by the Flooding JER, pages 11-13 and pages 1 and 3 of the Water Quality Assessment prepared by Martens dated 11 April 2023 (Water Quality Assessment).
3. The Water Quality Assessment provides a combined system of Rainwater Tank and Raingardens as part of the Proposed Development to address s 2.10 of the Resilience and Hazards SEPP regarding development on land within a coastal environment area.
4. Finally, the Court is required to consider whether the land is contaminated which has been addressed by the Preliminary Site Investigation filed by the Applicant together with the Statement of Environmental Effects (Ex A) and satisfies the terms of s 4.6 of the Resilience and Hazards SEPP.
5. The Site is mapped as Class 3 and 4 Acid Sulfate Soils and pursuant to cl 7.1 of the SLEP I am satisfied that the Proposed Development does not involve any works by which the water table is likely to be lowered by more than 1m below the natural ground surface.
6. Conditions of consent are included in Ex 7 which address the requirement for essential services as required by cl 7.11 of the SLEP.

Conditions of Consent

1. In addition to the inclusion of an additional condition requiring the reduction of the 3.5 m wide driveway to a 3 m driveway off Dunstan Street, in accordance with par [13] above, the parties have identified a number of conditions of consent which are not entirely agreed between them which I now address and determine these as follows: 1. Condition 3 Asset Protection Zone: I have found that the council land is 'managed' land and accordingly, no easement or other 'suitable legal mechanism' is required. Proposed condition 1B as sought by the Respondent is to be deleted and I note that the sequential numbering of the conditions generally will then need to be corrected. 2. Condition 29 Flooding - Subdivision Works Certificate Requirements: The Applicant does not agree with the second sentence in (a) and submits that the Flood Certificate dated 16 December 2021 is the document that should be referenced as it is the document in evidence and is the document upon which the experts relied on to prepare the Flooding JER. I accept Council's submission that the second sentence should be maintained as per the evidence of the flood experts to ensure that the Site is not H1 at the time of subdivision. 3. Condition 78 Restrictions - Easements and Restrictions on Use of Land: The Applicant does not agree with (a)(iii) "all existing restrictions on the use of land must be acknowledged on the final subdivision plan" because there are current restrictions on title which the Applicant submits are clearly inconsistent with the development consent, namely "the restriction as to user would prevent a building being erected on parts of the building envelopes which are specifically approved as part of this development consent." (Ex 7, p 28). The Court has the Instrument setting out the terms of easements and restrictions as to user pursuant to s 88 of the Conveyancing Act 1919 attached to Ex 7. The terms of the s 88B restriction firstly referred to in Deposited Plan 734884 registered 23 July 1986 which restricts location of dwellings on the three properties comprised by the Site and the 2 neighbouring properties to the north at 19 and 17 Duncan Street, including the floor levels not being less than RL2.0 m AHD. Further, the s 88B restriction includes a restriction as to tree removal unless with written permission and a restriction as to further subdivision without the consent of Shoalhaven City Council. The Council submits that inconsistencies between the development consent and the restriction as to user currently on title is a property matter for the Applicant to deal with in the usual course, that is, by either seeking to vary or cancel the dealing and not by way of these conditions. I understand that the proposed wording sought by Council at Condition 78(a)(iii) may be a statement of what will occur in any event by way of registration of a plan of subdivision, namely that existing restrictions on title will travel with the new subdivision unless the dealing itself is otherwise varied or cancelled. In any event, I agree with the Council that the dealing should be addressed by the Applicant if required as a property dealing and I conclude that the wording proposed by the Respondent should remain.
2. I conclude that on balance, and, following a careful merit assessment of the Proposed Development, development consent can be granted subject to conditions of consent.
3. I will direct that the parties provide to the Court conditions of consent that reflect my findings at [13] and [1153]. Upon receiving and considering conditions of consent, I will then uphold the appeal and grant development consent subject to conditions.

Directions and order:

1. The Court directs that: 1. By 1 December 2023, the parties are to file conditions that reflect my findings at [13] and [113]. 2. Liberty to restore is available in the normal manner, and Online Court submissions can be made should there be agreed modifications to the timetable above.
2. The Court orders that: 1. The matter is listed for Online Court at 12pm, 1 December 2023.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2023