COMMISSIONER: I have been given this matter on remitter from the decision of Preston CJ in Shoalhaven City Council v Easter Developments Pty Limited [2024] NSWLEC 49 (s 56A Appeal) where Shoalhaven City Council (the Council) appealed under s 56A of the Land and Environment Court Act 1979 (LEC Act) against my earlier decision as a Commissioner of the Court, to grant development consent to a three-lot residential Torrens title subdivision at 21 Duncan Street, Vincentia (the land) to be carried out by Easter Developments Pty Limited (Easter Developments).
Preston CJ identified the central issue to be the Proposed Development's compliance with the document, Planning for Bush Fire Protection 2019 (PBP), which provides development standards for development on bush fire prone land (at [2]-[4] in the s56A Appeal). At [3] of the s 56A Appeal Preston CJ notes that:
3. […] it was common ground and the evidence established that, as both the land on which the proposed development was to be carried out and the Council land were bush fire prone land, an APZ was required to provide bush fire protection for the proposed development, and the APZ distance was required to be 21.5m, of which 15.5m would be on the land and 6m would be on the adjoining Council land.
The PBP provides a suite of bush fire protection measures (BPMs) to mitigate the impact of bushfire attack on people and assets (s 1.4 and s 3 of the PBP). One of the BPMs for rural and residential subdivisions is the creation of an Asset Protection Zone (APZ). An APZ is an area or a buffer zone between a bush fire hazard and buildings. The APZ is managed or maintained to minimise fuel loads and reduce potential radiant heat levels, flame, localised smoke and ember attack. The size or distance of the APZ is based on vegetation type, slope and the nature of the building (s 3.2 of the PBP). The categorisation of the development site or adjoining Council land as "managed land" is irrelevant: s 56A Appeal at [42].
On 10 November 2023, I handed down my reasons for judgment in the Class 1 Development Appeal of Easter Developments Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1671 to uphold the appeal and grant development consent subject to conditions. Upon the filing of Conditions of Consent by the parties, I granted the consent subject to those conditions: Easter Developments Pty Ltd v Shoalhaven City Council No 2 [2023] NSWLEC 1732.
My decisions of 10 November 2023 and 5 December 2023 are set aside and the matter is remitted to me to determine the Class 1 Appeal according to law and the reasons given by Preston CJ in the s 56A Appeal. Preston CJ at [62] concludes that:
"62. The Council has established both grounds of appeal that the Commissioner erred on questions of law by asking the wrong question, failing to ask the right question and misdirecting herself regarding the PBP. The appeal should be upheld, the decision and orders of the Commissioner set aside, and the matter remitted to the Commissioner to be redetermined. Costs should follow the event."
The parties have since filed written submissions and submissions in reply in the remitted Class 1 appeal. The parties relied on the evidence tendered in the proceedings before me, and these exhibits retain the same exhibit numbers. The parties tendered additional evidence consisting of an agreed bundle filed 16 July 2024 (Ex 10) and the Annexure A Conditions of Consent published with the 5 December 2023 decision (Ex 9).
As the whole decision is set aside, I adopt the reasons from Easter Developments Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1671 in relation to the other merit and jurisdictional findings regarding flood risk (Contention 10) from par [16] of that judgment, planning matters (Contentions 3, 4, 5 and 6) from par [93] and other jurisdictional matters from par [107]. This judgment is to be read in conjunction with my earlier decision to that extent however, insofar as my earlier judgment addresses bushfire risk and the PBP (Contention 1 and 9), I now re-assess these bushfire risk merit contentions in accordance with the law.
The Applicant's case is that on this remitter, I am able to remake the decision if I consider that that is the correct decision to remake on merit, and, the Applicant impresses upon me to do so on the basis that I was satisfied about the merit at the initial hearing (Transcript 26 August 2024, p 4 at par 35). Unfortunately, this submission is simplistic and relies on my conclusions reached after asking the wrong question and failing to ask the right question. I had misdirected myself regarding the PBP and my earlier conclusions are not reliable. Put another way, notwithstanding the noncompliance with the PBP by the Proposed Development's proposal to have the APZ partly on the adjoining Council land, rather than contained wholly within the Site, the exercise before me is to exercise my discretion following consideration of the evidence and in accordance with the decision of Preston CJ in the s 56A Appeal. The Applicant submits that once having asked itself and considered the correct questions as posed in Preston CJ's judgment, the Court may again approve the development. This is true, but I do not reach the same conclusions and I set out my reasons below.
The correct questions for determination on remitter, as identified by Preston CJ at [15]-[18] are framed by the Applicant as follows:
1. the extent to which the proposed development conforms with or deviates from Planning for Bushfire Protection, cl 45(2)(h) of the Rural Fires Regulation 2022; and
1. the impact of bushfire attack on the people and assets on the land and the bushfire protection measures to mitigate that impact under s 4.15(1)(c) of the Environmental Planning and Assessment Act 1979 (EPA Act), and hence the suitability of the land for the development.
The Respondent does not agree that the remitter requires decoupling from the PBP with the questions as framed by the Applicant, and submits that the PBP lens informs the merit assessment of the suitability of the Site for the Proposed Development (Transcript 26 August 2024, p 24).
The Respondent's case is that development consent should be refused because the APZ contemplated, as part of the Proposed Development, is not wholly within the boundaries of the Site, such that there is no assurance as to the maintenance and management in perpetuity of the APZ, as required under the PBP. The timing of the intervals of maintenance and the standard of maintenance of the adjoining Council land also does not conform with the PBP.
As the parties do not agree on the approach on remitter, I reproduce in full what Preston CJ said at [12] to [18] in the s 56A Appeal:
"12. On an appeal against the consent authority's decision with respect to development, the Court may determine the appeal whether or not the consent authority has obtained general terms of approval 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 general terms of approval, and may grant development consent on conditions that are inconsistent with the general terms of approval from the approval body (s 8.14(4) of the EPA Act).
13. In the case of development that is integrated development by reason of a bush fire safety authority being required, the application for development consent under the EPA Act ought to include the information that an application for a bush fire safety authority must include. That logically follows from the operation of the integrated development provisions in s 4.46 to s 4.50 of the EPA Act. If the consent authority grants development consent to integrated development, the approval body (the RFS Commissioner in the case of a bush fire safety authority) must grant approval to any application for approval that is made within three years after the date on which development consent is granted (s 4.47(5)(b)(i) and s 4.50(1) of the EPA Act) and on conditions that are not inconsistent with the development consent (s 4.47(5)(b)(ii) and s 4.50(2)of the EPA Act).
14. In this case, the Commissioner, exercising the functions of the consent authority on appeal, granted development consent to the proposed integrated development. That decision on the appeal is taken to be the final decision of the consent authority and is to be given effect to accordingly (s 8.14(2) of the EPA Act). Hence, the RFS Commissioner would be obliged, if application were to be made for a bush fire safety approval, to grant that approval on conditions not inconsistent with the development consent granted by the Court. The RFS Commissioner could not refuse a bush fire safety authority on the basis that the proposed development deviated from the PBP. The decision of the Court foreclosed that option.
15. For this reason, the 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 Commissioner in determining the development application to carry out the proposed integrated development. The matter was a relevant matter for the Commissioner to consider in determining the development application.
16. That obligation is reinforced by s 39(4) of the Court Act. This provides:
"In making a decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act the circumstances of the case and the public interest".
17. Clause 45(2)(h) of the Rural Fires Regulation falls within the scope of these matters that s 39(4) of the Court Act required the Commissioner to consider in making her decision on the appeal in this case.
18. The Commissioner also was 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. The Commissioner, exercising the functions of the consent authority on appeal, was obliged, in determining the development application, to take into consideration "the suitability of the site for the development." The suitability of the land for the proposed development of a residential subdivision was dependent on the provision of an APZ that complied with the APZ requirements of the PBP. Hence, the Commissioner needed to assess the extent to which the proposed development conformed with or deviated from the PBP."
Do I decouple and answer the two questions as proposed by the Applicant? Or do I simply evaluate the Proposed Development undertaking the merit assessment through the lens of the PBP? I will do both, I will attempt to answer the questions as proposed by the Applicant and will address the merit assessment of the Proposed Development through the lens of the PBP, and as identified by Preston CJ at [15] and [18] quoted in full above. I do so explicitly by considering the impact of bush fire attack on the people and assets on the Site and the BPMs to mitigate that impact in order to determine whether the Site is suitable for the Proposed Development under s 4.15(c) of the EPA. Within that framework, the first question deals with conformity with or the extent of deviation from the PBP and the second question deals with the exercise of discretion following an evaluation of the suitability of the Site for the Proposed Development.
The first question proposed by the Applicant will include an assessment of the extent to which the Proposed Development conforms with or deviates from the PBP as required by s 45(2)(h) of the Rural Fires Regulation 2022, which I reproduce below in full at [27] because it includes the prescribed content of an application for a bush fire safety authority as referred to by Preston CJ at [13] of the s56A Appeal.
Answering the second question proposed by the Applicant will include the assessment as per Preston CJ at [18] quoted above. In exercising the functions of the consent authority on appeal, I am obliged, in determining the development application, to take into consideration "the suitability of the site for the development": s 4.15(1)(c) of the EPA Act. I come back to this second question at [37].
I give my reasons why I conclude that on the exercise of my discretion I find that the evidence does not support the granting of consent to the proposed residential 3 lot Torrens title subdivision on bushfire prone land in the form proposed.
[2]
What is the extent to which the Proposed Development conforms with or deviates from the PBP?
The assessment of the extent to which the Proposed Development conforms with or deviates from the PBP needs to be undertaken by the consent authority and, on the appeal in this case, by the Commissioner in determining the development application to carry out the proposed integrated development: s 45(2)(h), Rural Fires Regulation 2022.
There is no dispute that the Proposed Development does not comply with the PBP for the simple reason that the proposed APZ is not contained wholly within the Site. The Applicant relies on a 6 m wide strip of land on the adjoining council land as part of the required 21.5m APZ (Bushfire Joint Expert Report (Bushfire JER) prepared by Lew Short for the Applicant and Stuart McMonnies for the Respondent filed 11 July 2023 (Ex 4).
There is no controversy that an APZ of 21.5m is appropriate for the purposes of the Proposed Development, the controversy is entirely focused upon the location of that 21.5m and whether any part of it should be allocated outside the Site on to the 6 m strip of adjoining Council land. I reproduce an image illustrating the proposed location of the APZ traversing the boundary of the Site below at Fig 1 (extracted from Fig 7 on p 19 of the Bush Fire Assessment Report dated 28 September 2021, Ex A Tab 12, and prepared by Bushfire Consulting Services Pty Ltd, and also reproduced at Annexure 13 of the Bushfire JER, Ex 4).
[3]
Fig 1: APZ traversing the boundary of the Site onto adjoining Council land being a 6 m wide strip part of Lot 4 in DP 622283. (Ex A, Tab 12)
The Applicant relies on documents produced by the Respondent in response to Notice to Produce dated 19 June 2023 including the final page titled "Vincentia North 1" dated 29 July 2014 with 3 diagrams one of which depicts land including the Site with an adjoining yellow strip identified by the number "7648" with the words "Maintain 6 m off the rear boundaries of 17-21 Duncan St" (Ex B). The Applicant also relies on a print out of the information on the Respondent's website on Monday 24 July 2023 titled "Bushfire Mitigation Area (Asset Protection Zone) being the result of a specified search "Asset Protection Zone - 37648 - Albion Street - Vincentia". I understand that there is no dispute that the yellow strip from Ex B and the area hatched from Ex C are the same area depicted in 2014 and 2023 and I accept that there is evidence of historical and current mechanical works on that adjoining Council land for the purpose of bushfire mitigation in accordance with Council's statutory responsibilities pursuant to s 63 of the Rural Fires Act 1997 (RFA). I reproduce each of the above described documents below at Fig 2 and Fig 3.
[4]
Fig 2: "Vincentia North 1" dated 29 July 2014 with 3 diagrams one of which depicts the Site and other land with an adjoining yellow strip identified as 7648 with the words "Maintain 6 m off the rear boundaries of 17-21 Duncan St" (Ex B)
[5]
Fig 3: information on the Respondent's website on Monday 24 July 2023 titled "Bushfire Mitigation Area (Asset Protection Zone) being the result of a specified search "Asset Protection Zone - 37648 - Albion Street - Vincentia" (Ex C)
The Applicant does not rely on the adjoining Council land as an APZ for planning purposes because it does not meet the test under PBP. Part 3 of the PBP deals with Bushire Protections Measures (BPMs) and at section 3.2 the requirements of APZs is set out. Of particular relevance are sections 3.2.5 and 3.2.6 of the PBP.
At section 3.2.5 of the PBP an APZ imposed by a development consent condition must be maintained for the lifetime of the development and where an APZ is proposed on adjoining land, a guarantee must be provided that the land will be managed in perpetuity. In order to satisfy the test under the PBP, as the proposed APZ is not wholly located within the Site, it would be necessary to be satisfied whether that part of the APZ on adjoining land will be maintained in perpetuity. Such a guarantee of maintenance in perpetuity can be achieved, if the adjoining land is private land, secured by an easement, but here the Applicant relies on adjoining Council land.
At section 3.2.6 of the PBP, a plan of management is required where development proposes to establish an APZ off site on land belonging to council or government where there is no guaranteed commitment to future management. The adopted plan of management thereby will provide the assurance that an APZ will be managed in perpetuity. In other words, a plan of management complying with section 3.2.6 of the PBP, adopted by the Council would be an acceptable solution. As such, the adjoining Council land does not qualify as a PBP APZ. I explain further below.
Nevertheless, the Applicant, while acknowledging that the adjoining Council land is not a PBP APZ, argues that it is a council managed APZ bespoke for the 3 adjacent properties, being at 17 to 21 Duncan Street (Transcript 26 August 2024, p 7 at par 34). The Applicant relies on this as being relevant and that this offers comfort to the Court. (Transcript 26 August 2024, p 6 at par 36 and 43). For the purpose of these proceedings, this does not offer any comfort to the Court for the reasons identified by Preston CJ in the s 56A Appeal. The Court here must first assess the extent of deviation from the PBP and then undertake an evaluation as to the suitability of the Site for the Proposed Development. In that regard, The NSW RFS letter of 11 May 2023 (Ex 1, Tab 52) 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."
The Applicant says that it does not need to rely on the adjoining Council land as a a compliant or conforming PBP APZ, and submits that one needs to look at what is the extent to which the Proposal Development complies with or deviates from the PBP (Transcript 26 August 2024, p 6 at para 17). The Applicant offers its land as being "some 75% in compliance" with the PBP (Transcript 26 August 2024, p 6 at para 22) as being more compelling (Applicant's Written Submissions filed 23 August 2024 at par 12) and submits that "the Court can be satisfied the minor extent of non-compliance is of insignificant weight and acceptable" (Applicant Written Submissions filed 15 August 2024 at par 14). Or put another way, an area of 15.5m of the proposed APZ located on the Applicant's Site is compliant (ie guaranteed to be managed in perpetuity) compared with the area of 6m of the proposed APZ located on the adjoining Council land which is not compliant (ie not guaranteed or assured by a plan of management to be managed in perpetuity) and the deviation therefore is limited only to the 6m.
I reject this piecemeal or fragmented approach as it does not assist the Court in the assessment task within the legislative framework as described by Preston CJ in the s 56A Appeal. The approach is to assess the deviation in accordance with the terms of the PBP and then to undertake an assessment of the impact on the safety to buildings and people which I come back to which considering site suitability at [37].
Section 45 of the Rural Fires Regulation 2022 prescribes the content of an application for a bush fire safety authority at subclause (2) as follows with subclause (h) emphasised:
An application for a bush fire safety authority must include the following -
(a) a description, including the address, of the property on which the development the subject of the application is proposed to be carried out,
(b) a classification of the vegetation on and surrounding the property, out to a distance of 140 metres from the boundaries of the property, in accordance with the system for classification of vegetation contained in Planning for Bush Fire Protection,
(c) an assessment of the slope of the land on and surrounding the property, out to a distance of 100 metres from the boundaries of the property,
(d) identification of significant environmental features on the property,
(e) the details of a threatened species or threatened ecological community under the Biodiversity Conservation Act 2016 that the applicant knows to exist on the property,
(f) the details and location of an Aboriginal object or place, within the meaning of the National Parks and Wildlife Act 1974, that the applicant knows to be situated on the property,
(g) a bush fire assessment for the proposed development, including the methodology used in the assessment, that addresses the following matters -
(i) the extent to which the development is to provide for setbacks, including asset protection zones,
(ii) the siting and adequacy of water supplies for fire fighting,
(iii) the capacity of nearby public roads to handle increased volumes of traffic when a bush fire emergency occurs,
(iv) whether or not nearby public roads that link with the fire trail network have two-way access,
(v) the adequacy of arrangements for access to and egress from the development site for the purposes of an emergency response,
(vi) the adequacy of bush fire maintenance plans and fire emergency procedures for the development site,
(vii) the construction standards to be used for building elements in the development,
(viii) the adequacy of sprinkler systems and other fire protection measures to be incorporated into the development,
(ix) registered fire trails on the property,
(h) an assessment of the extent to which the proposed development conforms with or deviates from Planning for Bush Fire Protection.
There has been the requisite consultation with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire in order to satisfy s 4.14(1A) of the EPA Act which enables a the consent authority, if satisfied that the development does not conform to the relevant specifications and requirements, to, despite subsection (1), grant consent to the carrying out of the development.
As this appeal relates to integrated development, requiring consultation with the Commissioner of the NSW Rural Fire Service, it is agreed that the power of court on appeal is contained in s 8.14(2) and (4) of the EPA Act and reinforced by s 39 of the Land and Environment Court Act 1979. Preston CJ s 56A Appeal judgment at [12] and [14] quoted above and at [16] regarding s 39 LEC Act. Section 8.14(4) of the EPA Act provides as follows:
(4) If an appeal under this Division relates to integrated development -
(a) the Court may determine the appeal whether or not the consent authority has obtained general terms of approval from each relevant approval body, and
(b) the Court is not bound to refuse an application for development consent because a relevant approval body has decided that general terms of approval will not be determined or has decided not to grant a relevant approval, and
(c) the Court may determine an appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of a relevant approval body.
Accordingly, the Court has power to first come to the view that the proposed APZ does not comply with the PBP and is contrary to what was recommended by the RFS but nevertheless exercise discretion to decide to grant consent notwithstanding that there is non-compliance with the PBP.
I now move on to consider and assess the extent the Proposed Development does not conform with the PBP 2019, in particular sections 3.2.5, 3.2.6 and 5.2 and Table 5.3a APZ Performance Criteria and Acceptable Solutions as required by s 45(2)(h) of the Rural Fires Regulation 2022.
The Proposed Development requires an APZ which provides a separation distance from the buildings of 21.5 m. I find that the Proposed Development does not conform with the PBP in a number of ways, including the following:
1. In the first instance because the Proposed Development does not propose the 21.5m APZ to be wholly on the Site. What is proposed is an APZ on the Site of 15.5m plus an area of APZ measuring 6m on adjoining Council land (see Fig 1 above).
2. Secondly, the Proposed Development does not conform with the PBP because as the adjoining land is not private land, the acceptable solution to securing management of an APZ in perpetuity on adjoining by means of an easement under the s 88B of the Conveyancing Act 1919 is unable to be complied with because the council land is classified community land pursuant to s 25 of the Local Government Act 1993 (LG Act).
3. Thirdly, the acceptable solution of securing management of the APZ on public land in perpetuity and to the required standard by means of a plan of management is not wholly complied with because there is not a single document (Plan of Management) that provides the specificity of how the council land will be managed as required by cl 3.2.6 of the PBP nor the time frame (in perpetuity, or the life of the development).
1. In that regard, Council has adopted a Plan of Management for Community Land as required by s 36 of the LG Act, however that Plan of Management does not include the necessary content listed by Preston CJ in the s 56A Appeal at par [36]. Similarly, the Council's adopted Bush Fire Risk Management Plan (BFRMP) pursuant to s 63 of the RFA does not conform with the PBP. As I noted in my earlier decision at par [82], 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."
I conclude that the documents relied on by the Applicant are unsatisfactory for the purpose of answering the five chevrons in section 3.2.6 of the PBP which prescribe the content of the PBP pan of managment.
The Respondent submits that the Shoalhaven Bush Fire Management Committee, comprised of members pursuant to s 15 of the Rural Fires Regulation 2022, identifies the risks, and treatments and determines their priority according to among other things the resources available to the authorities dealing with those risks and this is done on a five yearly cycle "to preserve some flexibility" (transcript p 84). The Respondent argues that it is not appropriate to assume that the Shoalhaven Bush Fire Management Committee will not alter its risk assessment or treatment strategy or the priority accorded to the 6 m area irrespective of the resources available to the council or other risks that may emerge (transcript p 84).
For reasons I give below, the risk assessment or treatment strategy accorded by the Shoalhaven Bush Fire Management Committee is not determinative of these proceedings, predominantly because none of the historical or current documents provide the specificity required as to what the maintenance regime is or, more importantly, will be in the future for the 6 m strip of adjoining Council land in order for the court to be satisfied that the future dwellings will not be exposed to the maximum radiant heat to the OPA standard, and hence is not satisfied that the Site is suitable for the Proposed Development. I come back to the OPA standard at [48].
I now move on to the second question as to site suitability and evaluate the bushfire risk element of the Proposed Development in accordance with s 4.15(1)(c) of the EPA Act and I give reasons why I exercise my discretion to refuse the development application as sought.
[6]
Is the Site suitable for the proposed Torrens title 3 lot residential subdivision which is dependent on the provision of an APZ that does not conform with the APZ requirements of the PBP?
As I identified in my earlier decision, at paras [76] and [77], 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."
Of particular relevance is the opinion expressed by Mr McMonnies 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)
In exercising the functions of the consent authority on appeal, I am obliged, in determining the development application, to take into consideration "the suitability of the site for the development" (s 4.15(1)(c) of the EPA Act). The suitability of the land for the proposed development of a residential subdivision was dependent on the provision of an APZ that complied with the APZ requirements of the PBP. Hence, needing to assess the extent to which the proposed development conformed with or deviated from the PBP and 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.
To evaluate Site's suitability a number of questions can be asked. What can be done in a matter like this if the document or the combination of documents relied on by the Applicant purporting to satisfy s 3.2.6 of the PBP are unsatisfactory? Is there going to be an acceptable risk to the three future residential buildings on the proposed subdivision from bush fire attack? Will the proposed buildings that are to come with the subdivision be subject to an acceptable or unacceptable risk of bush fire?
The only real question in this case is what is the impact of bushfire attack on the people and assets on the land and whether the bushfire protection measures (BPMs) to mitigate that impact are acceptable. One way of assessing the acceptability or unacceptability of the risk of bush fire on the people and assets on the Site is to look at the PBP because if you comply with the PBP you are deemed to be protected from bushfire to an acceptable level. As the Proposed Development does not comply with the PBP, then I must go on to assess the other alternative solutions proposed in order to lower the risk to an acceptable level. This is the fundamental question and the central task for the Court.
The task is forward looking, what protection will the propsoed APZ provide and for how long? The adjoining Council land needs to be managed or maintained as an APZ to a specified requisite standard and for the life time of the development: section 3.2.5 of the PBP.
The Council has advised that the adjoining Council land is not guaranteed to be managed in its current form in perpetuity. This raises two obstacles to the Proposed Development, firstly the current form of management and secondly the lack of assurance of management or maintenance for the life time of the development. Both result in unacceptable risk to people and assets.
[7]
What is the requisite standard on management or maintenance of the adjoining Council land which will result in an acceptable risk to people and assets?
Section 63 of the RFA imposes upon a public authority, such as the Respondent, the duty to take notified steps, defined as "steps that are included in a bush fire risk management plan" (s 63(5)). Section 63 highlights the extent to which a BFRMP is not merely a statement of good intentions but does assist in determining the content of duties owed by public authorities in relation to bush fire safety. I come back to the relevance of notified steps at [47] and [56(4)].
The PBP sets the standards requires by s 63 of the RFA. The PBP is also referred to in s 4.14 of the EPA Act and in s 45 of the Rural Fires Regulation 2022.
BPMs vary depending upon the nature of the building, its location as well as the vegetation around it. Here we are dealing with a proposed residential 3 lot subdivision on land which is mapped bushfire prone. I have already quoted Mr McMonnies opinion above at [38] from the Bushfire JER, p 14 and I note the Performance Criteria Table 5.3a of the PBP which requires management of an APZ in such a way that any buildings must not be exposed to radiant heat levels exceeding (BAL rating of 29 kilowatts) per square metre on each proposed lot.
Neither the BFRMP nor any other document in evidence before the court, specified that council to will have a duty (notified step pursuant to s 63, RFA) to maintain the 6m strip adjacent to the Site so that radiant heat level of exposure will not exceed 29 kW/m2 to the new proposed buildings on the Site following the new residential subdivision.
The evidence in the Bushfire Assessment Report submitted by the Applicant under the heading "Recommendations" second paragraph deals with the adjoining Council land and states "The APZ shall be managed as an inner protection area." Inner Protection Area (IPA) or Outer Protection Area (OPA) - different requirements relating to trees, shrubs and grass. Notwithstanding, the experts reach agreement at p 20 of the JER Bushfire that the 6 m strip of the adjoining Council land can be managed to OPA requirements.
An assessment was undertaken by the Applicant's expert, Mr Lew Short as to whether the adjoining council land will provide the necessary protection for the buildings in the future. Mr Short undertook modelling of three scenarios and says that the scenario 2 is the only acceptable scenario and that the APZ is accepted as being 6 m wide and is an outer protection area for assessment purposes. His modelling and calculation are at Annexure 15 of the Bushfire JER (Ex 4) and he concludes that the radiant heat is 25.6 under scenario 2 which is within the 29kW/m2 limit: Table 5.3a, PBP.
1. Scenario 1 is that the APZ within the council land is not managed and regenerates to forest which is unacceptable.
2. Scenario 2 is that the adjoining Council land is managed as an OPA. Put another way, the Applicant's expert, Mr Short concludes that in order to achieve the PBP level of 29kW/m2 you have to at least manage the council's land as an OPA - if you do that then the modelling suggests that the radiant heat at the buildings on the subject land will be 25.6kW/m2.
This means that the Court could find that it would be acceptable to consent to the 3 lot residential Torrens title subdivision and subsequent development provided the adjoining Council land is managed as an OPA in perpetuity (Transcript p 111). I am not satisfied that the adjoining Council land will be managed as an OPA for the life time of the future residences and accordingly development consent should be refused because the impact of bushfire attack to people and assets cannot be shown to be acceptable.
As Preston CJ identified at [32] and [47] of the s 56A Appeal, the purpose of an APZ is to protect the future buildings for however long the buildings are there - not just for five years, that is, the lifetime of the development and the Court is to be satisfied as to whether there will be an acceptable level of management (of the APZ as an OPA) for the lifetime of the development.
Condition 9 of the Conditions of Consent filed by the parties, Ex 9, incorporates the General Terms of Approval issued by the NSW Fire Service dated 12 April 2023 which binds the owner of the Site to manage the portion of the 15.5m area of the proposed APZ located within the Site as required by section 3.2.5 of the PBP. However, this condition of consent does not bind the council in relation to the management of the adjoining Council land for the purpose of an APZ for this development. The Community Land POM and the Bush Fire Risk Management Plan do not have the level of specificity which would require the Council to manage the APZ to an OPA standard so as to keep radiant heat down below 29kW/m2.
The Applicant relies on the list of documents at par 7 of Applicant's Written Submissions filed 15 August 2024 as ample evidence to give satisfaction "that the existing 6m of Council land, [namely] the Outer Protection Area (OPA) required as part of the 21.5m APZ [for the Proposed Development], was land that is treated by Council as an ongoing APZ". I come back to these to answer whether the status quo is the same as the OPA standard at [56].
Preston CJ at [29] refers to the definition of "managed land" in: first, s 100A(1) of the RFA, which definition applies for Division 8 of Part 4 of the RFA within which s 100B sits; second, the Dictionary to the RFA, which definition is extended by cl 42(1) of the Rural Fires Regulation; and third, in the Definitions section of the PBP. None of those definitions assist in the determination of this appeal. Preston CJ noted at para [42] that the categorisation of the development site of the adjoining council land as "managed land" is irrelevant. The relevant aspect of the word managed as used in the PBP, is the aspect which relates to the standard to, and duration for, which an area designated as an APZ is to be managed or maintained to ensure the exposure to radiant heat to residential buildings is limited to the requisite temperature as a bushfire mitigation measure. In this case the court is to ascertain whether the 6 pm strip of council land will be managed or maintained to the standard of an Outer Protection Area (OPA) for the life time of the development.
What is the OPA standard? In the JER Bushfire at p 20, (Ex 4), the experts agree that the Inner Protection Area provisions are to apply to the portion of the APZ on the Site whereas, the Outer Protection Area provisions may apply to the portion of the APZ on the adjoining Council land and explain as follows:
The experts agree that in applying the allowable Outer Protection Area in accordance with Table A1.12.4 of PBP, rather than the Inner Protection Area provisions proposed in the submitted Bush Fire Assessment Report (Bushfire Consulting Services 2021), that no tree or shrub removal is necessary on the Council Lot.
Ongoing slashing of grasses and ground covers is necessary to achieve a maximum of 100mm".
None of the Council POM or PBFMP specifies this level of maintenance: ongoing slashing of grasses and ground covers is necessary to achieve a maximum of 100mm. The status quo is not the same as the OPA standard for the following reasons:
1. The assumed continuing level of management programmed is an insufficient slashing program of up to 3 times a year during bushfire season (Ex C Supplementary Bundle);
2. Bush Fire Risk Management Plan - treatment register for Vincentia APZ is dated 2019 and is only a five year plan for slashing and mowing.
3. The email from council at Folio 336A of Ex G refers to a different unrelated APZ and also does not specify to what standard that unrelated APZ will be maintained. The Applicant submits that the Court will also take cognisance of the fact that in Ex G there is evidence before the Court of five different addresses "where there had been various borrowings of the council's APZ in terms of thee properties and their application for consent" (Transcript 26 August 2024, p 11 para 43). I acknowledge that there are examples of there the Council, as consent authority has granted development consent for residential development as evidenced in Ex G however it does not assist in my merit assessment pursuant to evidence in this matter where the Council land is different with a different set of maintenance regime, in fact the Applicant referred to it as 'bespoke'. I am unable to rely on other consents which have no relationship to this council land.
4. The bushfire risk management responsibilities of the Council pursuant to s 63 of the RFA extend to the notified steps which are not to the requisite specificity to ensure maintenance of the 6 m portion of the APZ as an OPA, namely ongoing slashing of grasses and ground covers is necessary to achieve a maximum of 100mm
The degree of acceptable risk to people and assets on the Site was determined by the experts when they analysed the Site and the existing adjoining Council land and they formed the opinion that the standard of OPA is acceptable to not exceed the exposure to radiant heat of 29kW/m2.
Having carefully considered the impact of bushfire attack on the people and assets on the land and the proposed BPMs to mitigate that impact, and hence the suitability of the land for the development under s 4.15(1)(c) of the EPA Act, I find that the land is not suitable for the development as proposed. I come to this conclusion because the appropriate risk to bushfire exposure has been determined to be 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 minimum distance from dwellings has been determined to be 21.5m resulting in an APZ to be that size for the Proposed Development. The Proposed Development seeks to rely on adjoining land for part of that APZ rather than providing for the APZ wholly within the Site requiring some assurance or guarantee that the APZ outside of the Site will be managed or maintained to a certain standard and for the life time of the development. That standard of maintenance is in accordance with an OPA, namely ongoing slashing of grasses and ground covers is necessary to achieve a maximum of 100mm.
[8]
Findings and Conclusion:
It may be that the Council will continue to maintain the adjoining Council land in accordance with s 63 of the RFA on an ongoing basis for the reason I gave in my earlier judgment at [85], namely for the benefit of the three properties at 17 to 21 Duncan Street. However, the level of maintenance is not specified nor is it required to be specified to be maintained to the standard required by the Proposed Development, namely as an OPA with ongoing slashing of grasses and ground covers is necessary to achieve a maximum of 100mm. I find that there is no assurance that the adjoining Council land will be maintained as an OPA. Accordingly, the proposed APZ, which relies on the adjoining Council land, will not fulfill its purpose to ensure that the future dwellings of the new Torrens title residential subdivision on the Site will not be exposed to radiant heat exceeding 29kW/m2.
It may be that the Site could be suitable for a residential subdivision notwithstanding it being bushfire prone land. However, while any subdivision relies on the adjoining Council land for an APZ to manage the risk of bushfire on the future dwellings for the life time of those dwellings I find that the Site is not suitable for the Proposed Development.
After a thorough review of the evidence, I am unable to be satisfied that the council will manage or maintain the 6 m strip of adjoining Council land to form the total required 21.5m APZ specifically in accordance with the requisite OPA provisions to ensure that, at the very least, the exposure to the future buildings to radiant heat level will not exceed 29kW/m2.
Accordingly, and for that reason, I conclude that on the exercise of my discretion the evidence does not support the granting of consent to the proposed residential 3 lot Torrens title subdivision on bushfire prone land and I determine the Class 1 Appeal by refusing consent.
[9]
Orders
The Court orders that
1. The appeal is dismissed.
2. Development application No 21/2577 for demolition of garage and 3 lot Torrens title subdivision at 21 Duncan Street Vincentia is determined by the refusal of consent.
3. All exhibits are retained.
[10]
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Decision last updated: 24 October 2024