Eden Valley Holdings Pty Limited v Blue Mountains City Council [2014] NSWLEC 1258 | Case summary

BUSHFIRE SAFETY 78Mr Swain and Mr Tucker agree that the site is classified as bushfire prone land and, as the development is for SFPP, it is integrated development under s 100 of the RFA. Compliance with PBP is required and the development is subject to the specific objectives of s 4.2.5 of PBP, which applies to infill SFPP developments. The appropriate control for determining construction requirements for bushfire protection is AS3959 2009 Construction of buildings in bushfire prone areas (the Standard). For the purpose of determining the APZ the predominant vegetation within 140m of the building is classified as 'forest' and the gradient of the site within the minimum distance to satisfy the 'effective slope' analysis (a minimum distance of 100m measured from the building) exceeds 20 degrees. 79The key disagreement between the experts is whether the BFSA will ensure adequate safety in the event of a bushfire. The BFSA requires a 50m APZ to be managed as an IPA, the construction of the main accommodation building to comply with BAL 40 standards and an Emergency/Management Plan (EMP), which includes the requirement that the facility be closed on certain days, including during a total fire ban. 80Mr Swain did not consider the 'nominal' 20 degree downslope accepted by the RFS represents the 'effective slope' of the site and consequently it was not appropriate to rely on the deemed to satisfy tables of the Standard. Mr Travers undertook performance assessment modelling on behalf of Mr Swain, with a 50m APZ and slope inputs of 26, 23 and 20 degrees, which Mr Swain considers represent the 'effective slope' in different parts of the site (Travers modelling). The modelling determined that the Flame Length would be 95.5m, 95.2m and 81.71m respectively. Based on the Travers modelling, Mr Swain concluded that the proposed APZ was inadequate and would result in the development being within the Flame Zone and the existing and new buildings could be 'engulfed by flame'. 81Mr Swain also raised concerns that the density of vegetation required for an APZ was not correctly shown on the Landscape Plan and about the practicality of the management measures. He accepted that the closure of the facility on nominated days could occur, but was concerned that even if people were evacuated or were in the bunker, fire fighters would be exposed to an increased and unacceptable risk. In his opinion, the site is unsuitable for the development as it would expose more people to risk than the current use of the site. 82If the development were to be approved, Mr Swain recommended that the construction should comply with BAL FZ standards rather than BAL 40, as the development would be within the Flame Zone. 83Mr Tucker explained the use of a 'nominal' 20 degree downslope resulted from onsite discussions with representatives of the RFS where it was considered that the 'most likely fire run is from the north on gentler slopes and that the fire would likely travel around the site in a northerly to southern direction rather than the impacts upslope from the escarpment'. The application was therefore considered on the on the basis of a Forest assessment and the deemed to satisfy tables in the Standard for up to a 20 degree downslope, which demonstrate that the proposal (with the deletion of the camp house and Villa 2) is outside the Flame Zone and that the 50m APZ and BAL 40 construction is adequate. 84Mr Tucker considered the management measures could reasonably be implemented and, as the facility is likely to be closed in the event of a fire, this would not pose additional risk to fire fighters. He acknowledges that if the site were vacant and had not been used as a guesthouse, he would not consider it to be suitable for a new SFPP development but, as an infill development, appropriate concessions should be made. 85Mr Tucker undertook modelling (Tucker modelling), which increased the slope and modified other input variables such as fuel loads, Fire Danger Index (FDI) and flame temperature to those used in the Travers modelling. He noted that the 'context of steeper slopes to the southern and western aspect must be considered in perspective with the available fuel loads and likely fire weather occurring from these aspects.' He determined average FDI, temperature and humidity inputs based on the weather conditions during the last bushfire danger season (1 October 2013 to 30 March 2014) and lower fuel loads for the western aspect. His modelling supported that a 50m APZ would be sufficient to place the development outside the Flame Zone and that the BAL 40 construction was adequate. 86Mr Swain disagreed with Mr Tucker's FDI and fuel load inputs. In particular, he stated that the FDI of 100 applies to the Greater Sydney Area, including the Blue Mountains, and under PBP is assumed as a 1 in 50 year event. 87Mr Travers undertook further modelling using a slope of 20 degrees and actual weather data from the Bureau of Meteorology (BOM). He did not accept the use of averaging for FDI and reached different conclusions. Submissions 88Ms Duggan and Mr Hemmings spent considerable time cross examining the fire experts on their assumptions and the consistency of their approach with PBP. Ms Duggan and Mr Hemmings made lengthy and competing submissions about the correct approach to the application of PBP and consequently the adequacy of the bushfire measure proposed for the development. Council's submissions 89The application of PBP to infill SFPPs in s 4.2.5 is a 'dispensation' from the 'preferred standards' for other development and SFPPs in PBP. In particular, throughout PBP the key bushfire protection measure (BPM) is an adequate APZ to provide a fuel reduced, physical separation between buildings and bushfire hazards. The APZ Tables in Appendix 2 are based on the desirable radiant heat levels at the building. This allows an area for fire fighters to defend the property and for access to and from the building. 90The 'preferred standards' for SFPPs are in the Table to s 4.2.7, which include a performance criteria for a maximum heat level of 10kW/sqm with an acceptable solution being a minimum 100m APZ (Appendix 2, Table A2.6). An APZ should not to be located on land with a slope exceeding 18 degrees. 91Only in 'exceptional circumstances' can the APZ be reduced or 'traded off' for increased construction standards and/or evacuation measures. 'Exceptional circumstances' in s 3.3 include that 'the extension should be no closer to the hazard than the existing building footprint'. 92The provisions in s 4.2.5 for SFPPs as infill development require 'an appropriate combination of bushfire protection measures and compliance with the intent and performance criteria of each measure within s 4.3.5', which provides specifications and requirements for BPM for infill development, including a 100m APZ as an acceptable solution to meet the performance criteria, unless there are exceptional circumstances. 93There are not 'exceptional circumstances' which would permit a reduced APZ of 50 m, on land in excess of 18 degrees that places the development closer to the hazard than the existing building. 94Section 4.2.5 also recognises that 'existing circumstances may make the preferred standards difficult to achieve.' The preference is to apply the requirements of PBP, but there may be reasons why, for an infill development, the preferred standards cannot be met. 95Modelling was undertaken by Mr Tucker and Mr Travers to understand what the radiant heat level will be in the immediate context of the proposed building. The purpose of determining the radiant heat levels is firstly, to identify the necessary construction level of a building, and secondly, whether fire fighters will be exposed to heat levels above the recommended maximum of 10 kw/sqm for SFPPs. The most significant difference between the modelling is the correct approach to the FDI input. PBP states: Fire weather assessment assumes a credible worst case scenario and an absence of any other mitigating factors relating to aspect or prevailing winds. The 1:50 year fire weather scenario for most of the State was determined as FDI=80, however, a number of areas including Greater Sydney....have higher FDIs which are set at 100. This is believed to occur with reasonable frequency in their respective fire areas....' (Appendix 2, A2.2) 96Other inputs such as vegetation type, slope, fuel loads, direction of fire, width of fire source, flame temperature, may be varied to address the site specifics but the FDI is a credible worst case scenario of 100. The lower FDI used by Mr Tucker (11, 15, 31 and 51) result in flame lengths and radiant heat levels which are significantly less. For example a model where all the inputs are the same other than FDI where Mr Tucker used FDI 15 and Mr Travers FDI 100 results in significantly different outputs including flame length of 21.79m (Tucker) and 95.2m (Travers) and radiant heat of 9.23kW/sqm (Tucker) and 45.66kW/sqm (Travers). 97The experts disagreed on other inputs such as whether flame temperature should be 1090K or 1200K, but these and other variable inputs have less impact on the outputs than FDI. The experts agree that the 'effective slope' exceeds 20 degrees. It is appropriate to work out the 'effective slope' from the direction of the fire source rather than averaging it over the site. All the models with an 'effective slope' of 20 degrees or more and an FDI of 100 result in a flame length which would exceed the 50m APZ. 98Due to the inadequate APZ there is a need to close the facility at certain times so that it is not occupied in the event of fire and to provide a bunker if people remain on site. The practicality of implementing such measures is questioned in the absence of an agreed EMP. If fires occur during times when the premises are not closed, the increase in the intensity of use exposes fire fighters to a significantly greater risk in ensuring the premises are evacuated or that the occupants are in the bunker, in radiant heat levels which are greater than that recommended by PBP for SFPPs. 99The location of the APZ on slope greater than 18 degrees assists the propagation of fire between canopies and is inconsistent with PBP. To address this, the experts have agreed to a condition that on an upslope of greater than 18 degrees the canopy separation shall be at least 10 metres. Consequently, the landscape plan does not represent the extent of planting on the site. There will be no trees within the first 10 metres of the APZ as that would connect canopy to the hazard. This has the potential to significantly change the way in which the development will appear and this has not been assessed by the heritage experts. It also raises questions of how the APZ is to be managed on slopes in excess of 18 degrees. 100In conclusion, Mr Hemmings submits that the Court would not be satisfied that the approach taken to bushfire safety on this land is appropriate or satisfies the requirement of cl 10.5(ca)(i) of LEP 1991. Applicant's submissions 101The only issue is whether the development is sited, designed and constructed appropriately having regard to bushfire risk. PBP does not use the term 'dispensation'. It recognises that bushfire risk cannot be eliminated but that it should be managed so that there are acceptable risks in relation to different types of development. Greenfield sites, existing subdivision, infill developments and particular types of development for SFPPs, which include hotel/motel or other tourist accommodation, have different considerations to determine risk and management of that risk. 102PBP provides: The general principles underlying the document are protection measures that are governed by the degree of threat posed to a development. A minimum setback from hazard is always required, ie, a defendable space. The greater the setback from hazard the lower the subsequent bushfire protection construction standards required, the smaller the interface a development has to fronting bushfire et cetera. No development in a bushfire prone area can be guaranteed to be entirely safe from bushfires. 103The BFSA issued by the RFS identified that the proposed development (the camp house and Villa 2) was within the Flame Zone and should be relocated outside the Flame Zone. These buildings have been deleted from the Application and consequently the development for which consent is now sought, is outside the Flame Zone. The intent of the APZ is to 'provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with the building'. The proposed APZ achieves the requirements specified in the BFSA. Similarly, the construction standard of BAL 40 or below is met and the existing building is to be upgraded. Other requirements in the BFSA for water and utilities, internal roads and landscaping are complied with or exceeded. The facility will be managed in accordance with the requirements of the BFSA and an EMP will be prepared, which has been considered by the RFS in draft form. The suite of measures ensure adequate fire safety is achieved. 104There is no requirement for the modelling that was undertaken by Mr Travers, on behalf of Mr Swain, due to his concerns about the use of a 'nominal slope' of 20 degrees. Mr Tucker explained that this slope best reflects the fire behaviour given the particular circumstances of the site and was the approach taken by the RFS. The use of the deemed to satisfy provisions in the Standard was also accepted by Mr Tucker and the RFS, as appropriate. The modelling in Table 2.4.2 of the Standard uses FDI 100 and demonstrates that 50m APZ and BAL 40 construction is adequate to manage the bushfire risk on the site. While Mr Tucker did not agree that modelling is required, in response to the Travers modelling, he modelled a year in which the Springwood fires occurred to demonstrate that a devastating fire can occur where the FDI was significantly less than 100. This modelling also demonstrated that the development would be outside the Flame Zone. 105Mr Swain accepts the adequacy of the bushfire measures proposed for the development, including that the site can be evacuated. He disagrees that the proposal is outside the Flame Zone and therefore considers that it should be built to BAL FZ standard. Although not considered necessary, the applicant would accept this as a condition of approval. 106Even if the radiant heat is more than 10kW/sqm at the building, the EMP will ensure that the facility will be closed and people are not present. Or if they are, the bunker is agreed by the experts to be adequate. There is no change to the risk to fire fighters except that there may be more people in this building than the existing house. However, they will be in a bunker, which is a better than the current situation in the existing dwelling. 107Under PBP, an infill SFPP, does not need to demonstrate that there are exceptional circumstances for an APZ of less than 100m, provided there are other measures which trade off the reduction in APZ. Nonetheless, the site could not provide an APZ of 100m, which, of itself, is an exceptional circumstance. 108Similarly, it is not necessary for an infill SFPP development to demonstrate exceptional circumstance for an APZ on a slope greater than 18 degrees. Nevertheless, Mr Swain's main concern about the APZ was the spread of crown fires, which has been resolved by the condition that on an upslope of greater than 18 degrees the canopy separation shall be 10m. The maintenance of the APZ can be achieved without the need for terracing, which is not part of this application. 109An exceptional circumstance to reduce an APZ is if the extensions are no closer to the hazard than the existing, which is achieved by moving the hazard further away. Furthermore, the proposed addition cannot be moved elsewhere on the site to be further from the hazard. 110In conclusion, Ms Duggan submits that the Court would be satisfied that the approach taken to bushfire safety on this land is appropriate or meets the requirement of LEP 1991. Findings 111A BFSA has been issued by the RFS but it does not resolve the Court of its obligation to be satisfied that the development satisfies the requirements of PBP and LEP 1991, including the requirement under cl 10.5(ca) that consent shall not be granted unless the development: (i) incorporates effective measures, within the boundaries of the lot concerned, and satisfactory to the Council, to protect the development from bushfire, and ..... 112The experts agree that PBP is relevant and specifically s 4.2.5 which applies to infill SFPP development. It provides: 4.2.5 SFPPs as infill In circumstances where alterations or additions to existing SFPP's facilities are proposed, the RFS requires an appropriate combination of bush fire protection measures and compliance with the intent and performance criteria of each measure within section 4.3.5. However, it is also acknowledged that existing circumstances may make the preferred standards difficult to achieve. In such cases, the specific objectives in Section 4.2.3 are to be followed. Alterations and additions to existing SFPP's (i.e. approved prior to 1st August 2002), including their external appearance or finish, which may involve an increase in size and footprint of the building or redevelopment of an existing building are considered to be infill development. This type of development should also seek to achieve a better bush fire risk outcome (such as improved construction standards) than if the development did not proceed. The new building work should comply with AS 3959 - 1999 (and Appendix 3 of PBP) or be no closer to the hazard than the existing building. Existing facilities such as water supply should also be upgraded. 113The Bushfire Hazard Assessment Report prepared in November 2012 (the Bushfire Report) submitted with the Original Application relied on the provisions for infill SFPP in s 4.2.5. It commented on the proposal's ability to satisfy the intent and performance criteria in s 4.2.5 and the specific objectives in s 4.2.3. It accepted that exceptional circumstances must be demonstrated for reductions in APZ's and outlined the proposals' compliance with the principles in s 3.3 for exceptional circumstances to apply. 114The Bushfire Report, the RFS and the experts have assessed the proposal as SFPP as infill and this was not in dispute between the parties. As I understand, this was on the basis that the existing dwelling was previously used as a guesthouse and is therefore an existing SFPP. However, the heritage evidence and the Amended Statement of Facts and Contentions state that the site was used as a private dwelling with limited ancillary use as holiday accommodation and does not have existing use rights. Presumably, if there were existing use rights, there would be no need to rely on cl 25.6 for permissibility. The Amended Statement of Facts and Contentions refers to correspondence between the council, the applicant and the RFS regarding if the past use of the site was tourist accommodation to determine whether the proposed SFPP would be infill development under PBP. However, this correspondence does not appear to be in evidence and I am therefore not sure on what basis the decision to assess the application as an infill SFPP was made. If the Application were otherwise acceptable, I would need to be satisfied that any previous use of the site for tourist accommodation was approved prior to 2002 and it was therefore infill SFPP. Nonetheless, as the parties have not raised this as an issue, I have accepted that the development is infill SFPP and should be assessed on this basis. 115The preferred standards in PBP seek to achieve an optimum bush fire risk outcome and s 4.2.5 is effectively a 'dispensation' or 'compromise' from these preferred standards, in recognition of the constraints posed by existing development and approved uses of land. However, the key question is whether the intent of the standards is met and adequate bushfire safety achieved. 116In the first instance, s 4.2.5 'requires an appropriate combination of bush fire protection measures and compliance with the intent and performance criteria of each measure within section 4.3.5', which provides specifications and requirements for BPM for infill development. 117The Table to s 4.3.5 includes a performance criteria for an APZ and states that: The intent may be achieved where: A defendable space is provided on site An asset protection zone is provided and maintained for the life of the development. 118The acceptable solution specified in the Table to s 4.3.5 refers to Appendix 2 (Table A2.6), which would require a 100m APZ. Clearly s 4.2.5 envisages that this can be reduced if the intent of the performance criteria is met and, as stated in s 4.3.5: Proposals to reduce APZ requirements....need to consider the advice on exceptional circumstances in section 3.3. 119The evidence of Mr Travers and Mr Swain raises considerable questions as to whether the APZ will provide a defendable space, given the likelihood that the development will be within the Flame Zone and therefore, whether the intent of the performance criteria is achieved. Their evidence also questions the appropriateness of an APZ on a slope greater than 18 degrees and whether there are exceptional circumstances to reduce the APZ. 120Section 4.2.5 acknowledges that 'existing circumstances may make the preferred standards difficult to achieve. In such cases, the specific objectives in section 4.2.3 are to be followed.' The specific objectives in s 4.2.3 are to: · provide for the special characteristics and needs of occupants. Unlike residential subdivisions, which can be built to a construction standard to withstand the fire event, enabling occupants and firefighters to provide property protection after the passage of fire, occupants of SFPP developments may not be able to assist in property protection. They are more likely to be adversely affected by smoke or heat while being evacuated · provide for safe emergency evacuation procedures. SFPP Developments are highly dependent on suitable emergency evacuation arrangements, which require greater separation from bush fire threats. During emergencies, the risk to firefighters and other emergency services personnel can be high through prolonged exposure, where door-to-door warnings are being given and exposure to the bush fire is imminent. 121Furthermore, s 4.2.3 provides that: Exceptional circumstances must be demonstrated for reductions in APZ (required by Appendix 2) or APZ on adjoining land (see section 3.3). 122I am not satisfied that the specific objectives in s 4.2.3 are met. The BFSA requires the preparation of an EMP, which amongst other things defines the management procedure for the closure of the building on days during a total fire ban, periods of extreme or catastrophic fire danger or when directed by the RFS. Ms Duggan's submissions rely heavily on the closure of the facility and that there will be nobody there and no need for firefighters to visit the property as the 'gates will be locked'. 123In Ms Duggan's submissions in reply, she referred to the Draft EMP prepared in November 2012 submitted with the Original Application. She submits that the Draft EMP addresses the issues raised by Mr Hemmings in relation to the absence of such a plan and the lack of certainty in the evacuation procedures. The Draft EMP was not discussed by the experts and relates only to closure of the facility on days of Catastrophic bushfire and clearly envisages the possible relocation/evacuation of occupants in the event that a bushfire may impact on the facility. While a final EMP will be prepared in consultation with the RFS, it has not been demonstrated that it is reasonably feasible that the facility will be closed prior to a fire and that there will not be times when occupants will be present on the site and may need to be evacuated, which may require the assistance of fire fighters and other services. 124The experts agree that the bunker room is adequate to accommodate people if the facility has not been closed and people remain on site. However, I do not accept that the presence of this room will not result in the potential need for firefighters to attend the site in the event of a fire. 125I accept Mr Swain's evidence that the increase in the intensity of the use from a single dwelling or a low scale guesthouse, to a larger commercial tourist facility will expose an increased number of people to risk who are unfamiliar with bush fires. It will also expose firefighters to additional risk due to the need to ensure that the site is evacuated or that people are safe within the bunker. While the bunker would reduce the risk to those people remaining on the site, it does not outweigh the additional risk resulting from an increased number of people potentially being on the site compared to that of a less intensive use. 126The potential for firefighters to be present on the site in the event of a bushfire is of particular concern due to the issues raised by Mr Travers and Mr Swain in relation to the use of the deemed to satisfy modelling in Table 2.4.2 of the Standard and the likelihood that the development will be in the Flame Zone with no defendable space. If an FDI of 100 is used, on any modelling, including the deemed to satisfy in Table 2.4.2 of the Standard, the radiant heat levels likely to be experienced at the building well exceed the target of 10kw/sqm. I accept that an FDI of 100 is appropriate as this represents the credible worst case scenario which can occur on the site with reasonable frequency. 127Section 4.2.3 also refers to need to demonstrate exceptional circumstances for reductions in APZ's and refers to s 3.3 which provides: Consideration is on a case-by-case basis and the applicant should provide clear evidence that, because of the circumstances of the case e.g. location or type of use, strict prescriptive compliance is unreasonable and unnecessary. For exceptional circumstances to apply, the following principles should be demonstrated: · the existing form of development will obtain a better bush fire risk outcome than if the development did not proceed (e.g. through increased construction standards); · the building line should be no closer to the hazard than neighbouring properties; · the extensions should be no closer to the hazard than the existing building footprint; · an upgrade of existing facilities may be required; and · the proposal is an infill arrangement and site constraints do not allow APZ requirements to be met. An increase in residential densities is not, by itself, considered an exceptional circumstance. 128I accept Mr Swain's concern about the reduced APZ for the proposed development. The new building will be closer to the hazard for part of its north and western elevations, unless the hazard is moved. The hazard is that which currently exists on the site and moving the hazard further away is not a justification for a reduced APZ. 129Section 4.2.5 acknowledges that 'existing circumstances may make the preferred standards difficult to achieve. In such cases, the specific objectives in section 4.2.3 are to be followed.' For this site, the 'existing circumstances' would include the constraints of retaining the existing heritage building and conserving its significance, which restrict the location of future development on the site. The size of the site also restricts the ability to provide an APZ on the site that would comply with the requirements of Appendix 2 for a SFPP. While the 'existing circumstances' may make the preferred standards difficult to achieve, it does not of itself justify the development or dispensations from the standards. Rather it raises questions as to the appropriateness of a SFPP development on the site of the scale and intensity proposal. Mr Tucker stated that if the site were vacant, he would not support a new tourist facility on the site, due to the bushfire risks, but considers that the proposal is acceptable as it adds to an 'existing' tourist accommodation. 130Mr Swain recognised that due to the size of the site it would be difficult to provide an APZ which met the minimum specifications in Appendix 2. He accepted that as the existing dwelling is a heritage item concessions would be necessary to ensure its retention, such as reduced APZ and reduced clearing to protect vegetation. However, as a single dwelling, there would be considerably less people exposed to risk and they would be familiar with the risk and acceptable safety could be achieved. He did not consider that a reduction in the APZ, which places the building closer to the hazard for a more intensive tourist facility is appropriate, particularly as the slope for the APZ is greater than 20 degrees. 131The Bushfire Report stated that other than to the north, the slope of the site is 15 to 20 degrees downslope. The experts have now agreed that the 'effective slope' of the site is greater than 20 degrees and in some places the slope is considerably greater. Even if the most likely fire source is from the north on gentler slopes, vegetation in the other directions with slopes above 20 degrees, is also identified as a hazard, with a history of fires, such as the 1986 fire that came from the south west, of which Mr Tucker was unaware. The use of the deemed to satisfy tables in the Standard for slopes which exceed 20 degrees may not be appropriate. 132The bushfire protection measures in the BFSA, such as the improved access, water and utility services and upgrades to the existing house are improvements to what currently exists on the site. However, on balance, they do not provide a better bush fire risk outcome given that the new development will be closer to the hazard and will result in an increased number of people who are unfamiliar with the risk. The evidence of Mr Travers and Mr Swain has raised doubts about the adequacy of the proposed bushfire protection measures in the BFSA and on the assumptions upon which the risk was assessed. Consequently, I am not satisfied that the proposal incorporates effective measures to protect the development from bushfire as required by cl 10.5(ca). IMPACT ON VEGETATION 133Council's Native Vegetation Mapping (Douglas 2001) identifies most of the site as BMEC. The experts accept that the mapping should be ground truthed on site. The key disagreement between Mr Fanning and Mr Smith was whether the existing vegetation on the site comprise BMEC or another vegetation community, listed in Schedule 3 of LEP 1991, and the extent of that community. 134Mr Smith undertook ground truthing of the site in 2012 as part of his preparation of the Flora and Fauna Assessment (Flora Assessment) submitted with the Original Application. He undertook a flora survey of quadrates in the proposed extension of the APZ and found: The diagnostic flora species detected throughout Quadrants 1-17 correspond to those which typically occur in the Eucalyptus piperita/E.sieberi Open Forest. Those detected in Quadrants 21-23 correspond to species that occur in the 'Blue Mountains Escarpment Complex' which is listed as a significant vegetation unit in the Blue Mountains Council LEP 1991. Quadrants 18-20 appear to be a transition zone between the Open Forest and Escarpment Complex but have a higher affinity with Area 2. 135The Flora Assessment also discussed ecological communities and stated: ..the site contains Blue 'Blue Mountains Escarpment Complex' which is listed as a significant vegetation unit in the Blue Mountains Council LEP 1991. The proposed 20m extensions to the APZ on the southern and western sides are unlikely to have a significant impact on this community if the recommendations in Section 6 of this report are complied with. 136The recommendations of the Flora Assessment included that the APZ be managed in accordance with PBP and that 'due to the steep nature of the topography of the APZ on the south and southwest and the high risk of erosion, 90% ground cover should be provided with indigenous plants, herbs, forbs and grasses'. It also recommended a weed management strategy. 137In the Joint Report, Mr Smith states that the ground truthing demonstrates that the council's mapping of BMEC on the site is incorrect. Although, he and Mr Taylor state that 'BMEC will be modified within the APZ using indigenous species and managed in accordance with PBP'. His concerns about the council mapping of BMEC principally relate to the northern and north western parts of the site, which based on factors such as geology and soil types, he concludes are Eucalyptus piperita/E.sieberi Open Forest. This is consistent with his analysis in the Flora Assessment. However, his map attached to the Joint Report indicates that the area previously identified as BMEC (Quadrates 21-23) is now identified as Tall Open Forest and the area previously identified as a transition between BMEC and Open Forest (Quadrates 18-20) is now identified as Shrub and Heath which forms a transition to the open forest to the north. An area is also identified between Quadrates 18-23 and the development and the existing house as 'Previously cleared, probable transition zone between O/F (Open Forest) and Open Scrub/Heath'. 138As I understand, Mr Smith's explanation for his change in opinion is that the species identified in the quadrates correspond to the diagnostic species for BMEC, but this is not sufficient to identify it as a BMEC community, which is also associated with 'moist, sheltered rock faces, the escarpments and other extensive outcroppings of sandstones in the Blue mountains'. 139Mr Fanning identified BMEC that was generally consistent with the council's mapping of BMEC on the site. 140Regardless, of the disagreement on whether there is BMEC on the site, the experts agree that there are vegetation communities identified in Schedule 3 of LEP 1991 in the area within the red line in Exhibit S. This area corresponds to Quadrates 18-23. Both experts acknowledged, with reference to the aerial photos, that the vegetation on the site had and would regenerate after bushfires. 141The experts also disagree on the impact of the works required to establish and maintain the APZ on the vegetation community, including removal of trees, shrub layer and some ground cover to achieve a density of tree canopy of 15% and shrub cover of 20%. 142Mr Smith accepted that a buffer would be required to maintain the vegetation community from impacts, such as edge effects and that no buffer was provided. He initially agreed that the APZ would result in the vegetation community, whether BMEC, Tall Open Forest or Shrub and Heath, being modified vegetation with species from the community. He later clarified that it would remain a vegetation community, albeit modified. He considered that the APZ would not have an adverse environmental impact on the vegetation community as it would be appropriately managed to reduce weeds. 143Mr Fanning stated that the APZ would have an adverse environmental impact as the diverse, structurally complex community with dense tree, shrub and ground cover would be changed to 'parklike vegetation'. It would change from a vegetation community to a managed open woodland with scattered trees and low ground cover. He accepted that some incursion into the vegetation to provide an APZ was acceptable but not to the extent proposed, particularly in proximity to the Blue Mountains National Park. Submissions 144The parties agree significant parts of the site are 'development excluded land' because it is zoned environment protection and/or because it has a slope in excess of 20 degrees. They disagree on whether it contains environmentally sensitive vegetation identified in Schedule 3 of LEP 1991. The parties agree that cl 10.5(db) of LEP 1991 permits development, such as the creation of an APZ, in 'development excluded land' and such development may result in change, but disagree on whether the extent of change will have an adverse impact on 'development excluded land' and consequently whether consent can be granted. 145Mr Hemmings submits that the APZ will have an adverse environmental impact on BMEC or other Schedule 3 vegetation community, which is agreed to be on the site and therefore does not meet cl 10.5(db). Ms Duggan submits that there is no BMEC on the site as Schedule 3 specifically defines the vegetation type to include certain species in association, and while BMEC species may be present, the association is not. She questions the extent of other Schedule 3 vegetation on the site and whether it fits into the definitions under Schedule 3. While there may be Heath and Scrub or Tall Open Forest vegetation communities, these are not present to any significant extent on the site, are transition areas or ecotones, have been damaged by fire and are degraded by weeds. Ms Duggan submits that any environmental impact must be assessed against the condition of the community as it currently exists on the site, not its potential for regrowth in the future. The management of the APZ through a Vegetation Management Plan (VMP) will encourage preservation, regeneration and re-establishment of native bushland. Consequently there is not an adverse environmental impact and the requirements of cl 10.5(db) are met. 146The parties disagree on the interpretation of 'no adverse environmental impact on development excluded land'. Ms Duggan submits that 'no adverse' means something can have an effect which is considered negative. This approach is consistent with the purpose of the clause within the context of LEP 1991 and the 'purposive approach' in s 33 of the Interpretation Act 1987, which provides: The interpretation or provision of an Act or a statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule whether or not that purpose or object is expressly stated in the Act or statutory rule, and in the cast of statutory rule, the Act under which the rule made shall be preferred to a construction that would not promote the purpose or object. 147Ms Duggan submits that the 'no adverse impact' cannot be interpreted to mean no impact at all or no negative impact. Rather the negatives must be balanced against the positives that will be achieved through the VMP. 148Mr Hemmings referred to the wording in cl 10.5(da), which permits a dwelling house provided there is 'no significant environmental effect' on matters, including Schedule 3 vegetation. He compared this to the wording in cl 10.5(db) which applies specifically to 'development excluded land' and permits development provided it has 'no adverse environment impact'. He submits the difference in language is deliberate and has a different meaning. Mr Hemmings accepts a development may result in change which may have an effect. For the purposes of cl 10.5(da), a dwelling house development must have 'no significant adverse effect', whereas for the purposes of cl 10.5(db) a development must have 'no adverse effect', which is a different and more onerous test. He submits that there is no requirement that the adverse effect be 'unacceptable' or that there be a balance between negative and positive aspects of the development. In his submission, the APZ will change Schedule 3 vegetation to no longer being Schedule 3 vegetation, which is an adverse environmental impact, and therefore consent cannot be granted. 149In the Agreed Facts, the parties reviewed the operation of the RFA and the Code to the development. They agreed that the potential to carry out vegetation clearing in accordance with the Code is a relevant consideration under s 79C of the EPA Act. 150The Agreed Facts included a Plan (the Plan) which identifies areas within 10m and 50m of the existing dwelling and proposed new development. They agree that within 10m of the existing dwelling or, if consent is granted, within 10m of the new development, all vegetation could be cleared including 'trees' within the definition in s 100P of the RFA, subject to compliance with cl 7.5 of the Code. 151The parties agree for that all vegetation between 10m - 50m of the existing dwelling or, if consent is granted, between 10-50m of the new development, except for 'trees' within the definition in s 100P of the RFA could be cleared, subject to cl 7.5 of the Code. 152The parties agree that in the area between 10m and 50m of the existing and proposed development there are 'trees' that may not be cleared. There is vegetation, which is regenerating after past bushfires and some of that vegetation, given time, is likely to fall within the definition of 'tree', but it presently does not and it could be cleared. A survey of the trees on the site has not been carried out and the number of 'trees' on the site is not known. 153The parties agree that if clearing is undertaken under the Code around the existing dwelling there may be an area cleared of all vegetation (not including 'trees') up to 50m from the existing dwelling. If the consent was granted, the area of clearing that could be undertaken on the site under the Code would be extended. 154The parties agree that if consent is to be granted a condition should be imposed which requires a s 88E covenant that the VMP must be implemented and that the owners are not to rely on the RFA and Code to carry out clearing or pruning. With the condition the parties conclude: ...more vegetation would be retained than that which would exist if a decision was made to clear the land pursuant to the Code in respect of the existing dwelling or the new development. That is, the retention and the provision of shrubs and trees in accordance with both the vegetation management plan and the approved landscape plan would produce a better visual and vegetation outcome than if a decision was made by the owner of the land to carry out vegetation clearing work in accordance with the Code. Findings 155Clause 10.5(db) provides: (db) The Council shall not consent to development, other than development referred to in clause 10.5 (da), on any lot created otherwise than in accordance with clause 34.1 (c), unless the development incorporates effective measures, satisfactory to the Council, to ensure that the development has no adverse environmental impact on any development excluded land. 156Clause 10.5(da) and cl 10.5(db) require satisfaction that the development incorporates effective measures to ensure that there is no adverse impact on Schedule 3 vegetation. However, the test in cl 10.5(da) for a dwelling house is that there be 'no significant adverse impact', whereas the test for 'development excluded land' is that there be 'no adverse impact'. I accept Mr Hemmings' submission that there is a clear distinction between the wording of cl 10.5(da) and cl 5.10(db) for a reason. The different wording demonstrates a different purpose of each clause, which is not inconsistent with a purposive approach to the interpretation of the clause advocated by Ms Duggan. 157In applying cl 10.5(db) it is first necessary to consider whether or not there is an impact as a consequence of the carrying out of development on the 'development excluded land'. If there is, it is necessary to consider whether that impact is adverse. If it is an adverse environmental impact then the Court must refuse the application. In considering whether the impact of the APZ is adverse, the matters raised by Ms Duggan, such as the extent of Schedule 3 vegetation and its condition due to the recent fire, weed infestation and ability for regrowth as well as the management of the APZ through the VMP are relevant considerations. 158The experts disagree on whether there is BMEC on the site and the extent of any vegetation community. However, they agree there is Schedule 3 vegetation within the area shown on Exhibit S. The area to the north and north east of this area, on Mr Smith evidence, is a probable 'transition zone' from Schedule 3 vegetation to a vegetation type not listed on Schedule 3, whereas Mr Fanning considers this to be BMEC. 159The site has a history of bushfires, most recently in 2011. The series of aerial photos demonstrate the natural regeneration of the vegetation on the site. In particular, the 2014 aerial photograph in the Joint Report illustrates the extent of regeneration since the 2011 fire. While, particularly in the 'transition zone', this revegetation may include weed growth and immature trees, it does not result in the agreed area of Schedule 3 vegetation no longer being present on the site. 160The area of the APZ for the proposed development would be approximately 14,416sm and to achieve the 15% canopy cover there could be about 35 trees within the APZ (Exhibit U) and the shrub cover would be maintained at 20%. From the south east to the north west the clearing for the APZ would extend into the agreed Schedule 3 Vegetation and the density of trees and shrubs would be reduced. 161In a westerly direction, the APZ would extend about 20-30m into the Schedule 3 vegetation in close proximity to the boundary of the site with the Prince Henry Cliff Walk and the Blue Mountains National Park. The slope in this part of the site is greater than 18% and the canopy separation would be at least 10m. 162Even if I accept only the area in Exhibit S as being the extent of the Schedule 3 vegetation on the site, there will be an environmental impact as a consequence of the APZ, and this impact will be adverse. Principally as the Schedule 3 vegetation, whether BMEC, Tall Open Forest, Shrub and Heath, or a transition or 'ecotone' between these communities, will no longer be a community. It will be modified such that the density of vegetation will be significantly reduced, whether trees or shrubs. While species of the community would remain, the community would not. I therefore cannot conclude that there would be other than an adverse environmental impact on a significant vegetation community in Schedule 3, as the community would cease to be present within the APZ. 163The Agreed Facts do not change this conclusion. In a westerly direction, the 50m clearing permissible under the Code measured from the existing dwelling would generally be within the 'transition zone' in Exhibit S and arguable does not impact on Schedule 3 vegetation. Whereas, the additional 20-30m of clearing permissible under the Code from the proposed development would extend into the Schedule 3 vegetation shown on Exhibit S. For the reasons outlined above, the clearing within the Schedule 3 Vegetation results in an adverse environmental impact. 164The VMP referred to in the condition proposed in the Agreed Facts requiring a s 88E covenant has not been prepared. Issues were raised with the Landscape Plan, particularly its consistency with the requirements for the APZ on the site and the depiction of the density of tree canopy. A VMP and an amended landscape plan are required as conditions of consent. In the absence of these documents and a survey of existing trees, there is a degree of uncertainty as to the conclusion in the Agreed Facts regarding retention of vegetation, particularly trees, and this conclusion is not supported by expert evidence. If the application were to be approved, I would need to be satisfied of these matters. 165It is also not clear from the material before me, whether a s 88E covenant, as required by the proposed condition, could override s 100R(1) of the RFA that permits vegetation clearing 'despite any requirement for an approval, consent or other authorisation for the work made by the Native Vegetation Act 2003 or the Environmental Planning and Assessment Act 1979 or any other Act or instrument made under an Act', so that the proposed condition would have some effect. The Agreed Facts do not discuss whether a s 88E covenant that would require the owners and their successors to not rely on the RFA and the Code to remove vegetation, which would restrict their ability to carry out actions that they are entitled to do under another Act could lawfully be imposed, or if so, whether it would be appropriate to do so (see MacDonald v Mosman Municipal Council (1999) 105 LGERA 49 and Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70). 166Even if the condition agreed to by the parties for a s 88E covenant results in less clearing of vegetation within 50 m of the existing dwelling or within 50m of the proposed development compared to that which could occur under the Code. It does not alter the impact from the additional clearing under the Code or APZ within Schedule 3 vegetation that would result from the proposed development compared to the potential for clearing around only the exiting dwelling. 167As the new building is between the existing dwelling and the fire hazard it would require an APZ, which extends further into the vegetation. Consequently, because of the design approach to the location of the building, the adverse environmental impact of the bushfire measures is not mitigated to the maximum extent practicable. The development therefore does not satisfy the requirements of cl 10.5(ca)(ii). Furthermore, the development does not incorporate effective measures to ensure that it has no adverse environmental impact on Schedule 3 vegetation. The development therefore does not satisfy cl 10.5(db) of LEP 1991. For these reasons consent must not be granted.

Eden Valley Holdings Pty Limited v Blue Mountains City Council

At a glance

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Decision date

Source

Judgment (13 paragraphs)

Parties

Cases Cited (2)

Cited By (1)