Ekermawi v Great Lakes Council - [2010] NSWLEC 1227 - NSWLEC 2010 case summary — Zoe

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Ekermawi v Great Lakes Council

[2010] NSWLEC 1227

Land and Environment Court (NSW)|2010-06-30

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Court

Land and Environment Court (NSW)

Decision date

2010-06-30

Source

Original judgment source is linked above.

Judgment (46 paragraphs)

[1]

Introduction 1 SENIOR COMMISSIONER: Minimbah Road is a winding rural road running generally south-east from Nabiac. Minimbah, the rural locality along the road has, as its southern edge, a river flowing into Wallis Lake. At the end of the constructed portion of Minimbah Road, a vehicle access track meanders generally to the south-east through the vegetation between the end of the formed road and, relevantly for these proceedings, the end of an undedicated Crown Road reserve. At the end of this access track lies Lot 201, an allotment owned by Mr. Ekermawi. Nestled amongst the trees on Lot 201 is a stainless steel railway carriage formerly owned by the Victorian Railways and now owned by Mr Ekermawi. 2 The track to the entrance of Lot 201, as traversed during the course of the site inspection discussed later, crosses two separate land tenures. The first of them is an un-made element of Minimbah Road, a dedicated public road vested in Great Lakes Council (the council) - with this element extending some 500 m or so beyond the end of the presently made section of Minimbah Road. The second element is an unmade Crown Road reserve that leads, relevantly for these proceedings, from the end of the unmade portion of Minimbah Road to the entrance gateway to Lot 201. 3 Mr. Ekermawi has applied to the council for development consent to convert his railway carriage into a dwelling. He also proposes a number of associated works comprising: o an open awning structure to cover part of the railway carriage; o installation of an on-site effluent disposal system; o installation of two rainwater tanks that, by collection of the rain falling on the awning, will provide sufficient water not only for domestic uses associated with occupancy of the converted railway carriage but also for fire-fighting purposes; and o establishment and maintenance of the necessary asset protection zone prescribed by Planning for Bushfire Protection 2006 (Planning for Bushfire Protection) by slashing of the understorey together with limited removal or pruning of trees to meet the canopy separation requirements of Planning for Bushfire Protection. 4 To assist in understanding some of that which follows, a photograph of the railway carriage is reproduced below. This photograph (Figure 1) is copied from the cover of one of the ecological reports tendered in the proceedings.

[2]

Figure 1 The site inspection 5 On the first morning at the hearing, I met the parties at the end of the constructed element of Minimbah Road. We then proceeded along the access track following the unmade portion of Minimbah Road and, subsequently, the Crown Road reserve, to the entrance of Lot 201. During the course of traversing these sections of the access track, we stopped at a variety of locations to enable Mr. Ekermawi and, for the council, its experts - Ms Dunkerley, a town planner employed by the council, Mr. Bell, the council's Senior Ecologist, and Mr. Britt, the District Officer of the Rural Fire Service (the RFS), giving expert bushfire evidence for the council, to point out: o various features associated with the location of the track compared to the survey markers showing the boundaries of the two road reserves; o matters associated with the formation of the track; o matters relating to recent vegetation clearing and rail ballast importation for the purposes of either maintaining the pre-existing track or for straightening the line of that track so that it was now entirely located within the relevant road reserve rather than deviating onto private property; and o aspects of the surrounding undisturbed vegetation in the vicinity of the track. 6 As discussed later, for the reasons there given, these matters are rendered unnecessary to be considered in light of the conclusion I have reached about the proper scope of these proceedings. 7 We entered Lot 201 and drove some 400 m or so to the vicinity of the railway carriage earlier depicted. In addition to the railway carriage, in its vicinity, there is a caravan and an informal structure within which was located, at the time of the inspection, a damaged motor vehicle. The caravan and this structure are not matters within the scope of this application. 8 We did not enter the railway carriage as Mr. Ekermawi agreed that he was seeking to have the railway carriage treated as a movable home. The council, as a consequence, had proposed a condition, condition 6 in its without prejudice conditions of consent, requiring a separate application to the council pursuant to s 68 of the Local Government Act 1993 (the Local Government Act) for the use of the railway carriage for this purpose. 9 As a result, it was unnecessary to inspect the interior of the railway carriage as the matters that required my determination now related to general issues of identification of the location of (and possible impacts of) a movable dwelling at such location and ecological and bushfire matters relating to that location rather than the appropriateness of the interior fit out of the railway carriage. 10 Although there subsequently appeared to be some confusion in Mr. Ekermawi's mind as to whether this was the case or not, he confirmed, during the course of the final phase of the hearing, that he was proposing that the railway carriage be treated as a movable dwelling and he accepted the appropriateness of condition 6 in that context. 11 The question of precise identification of the nature and location of the railway carriage and Mr Ekermawi's proposed works is a matter to which I will return in my discussion of the adequacy of the "plans" that have been provided in support of Mr. Ekermawi's application. 12 Whilst we were in the vicinity of the railway carriage, we walked around the railway carriage and inspected the location of the proposed southern perimeter of the asset protection zone required to meet the dimensions prescribed by Planning for Bushfire Protection. This southern asset protection zone element is located between the railway carriage and the Swamp Mahogany forest to the south. This Swamp Mahogany forest has been mapped as a wetland and is thus subject to the protections in (and constraints on development arising from) State Environmental Planning Policy 14 Coastal Wetlands (SEPP 14). 13 In addition, several steel elements were already erected on the site - these being either elements of the proposed awning intended to cover portion of the railway carriage or were structures erected to mark the location of such points. At this time, nothing would appear to turn on the precise status of those elements. 14 During the course of the evidence given informally in the vicinity of the railway carriage, Mr. Ekermawi, Mr. Britt and Mr. Bell each drew my attention to various elements within the landscape and surrounding vegetation patterns relevant to my consideration of ecological and bushfire issues (including consideration of the extent of understorey clearing and tree removal for the establishment of the necessary asset protection zone). Mr. Britt also gave evidence concerning what he saw as being the necessity for an upgrading of the section of the access track within Lot 201 because of his concerns about its surface adequacy - however, he conceded that he had no concerns, within Lot 201, about required clearance distances for a fire fighting tanker (those required clearances being in both the horizontal and vertical planes). Mr. Ekermawi, in response, made a number of observations concerning vehicles that had accessed the site in the past and the nature of the present traffic use of the access track within the property.

[5]

18 At the commencement of the proceedings, I discussed the matters set out in these proposed orders with Mr. Ekermawi and with Mr. Mallik, the council's solicitor. It was clear, from that discussion, that Mr. Ekermawi was not seeking approval from the Court to carry out any works on either the unconstructed section of Minimbah Road or in the Crown Road reserve that it was necessary to traverse, as earlier described, to reach the entrance to Lot 201. It was clear that Mr. Ekermawi considered that the present access track was adequate to meet the standards required for property access roads set by Planning for Bushfire Protection. It was also clear that Mr Ekermawi considered that any upgrading of the unmade portion of Minimbah Road was a council responsibility [as can be seen from his proposed order (2) set out above]. 19 I indicated to Mr. Ekermawi that I had no power to order the council to undertake such works and that, if he wished to do undertake any works to this dedicated but unconstructed public road, he would need to make an application, pursuant to s 138 of the Roads Act 1993 (the Roads Act), to the council for permission to do so. 20 I also indicated to Mr. Ekermawi and Mr. Mallik that, as no such application had been made to the council and consequently brought before the Court as part of this appeal, I did not consider it appropriate to express any opinion on the various merit issues raised by the council concerning any proposed upgrading of access over this portion of Minimbah Road. 21 I further indicated to Mr. Ekermawi and Mr. Mallik that, as Mr. Ekermawi was not seeking consent for any works over the Crown Road reserve, I did not consider it appropriate to make any assessment of the necessity for or acceptability of such upgrading. I noted to them that, if this position were to change, Mr. Ekermawi would be required to obtain the consent of the Lands Department, as the owners of the Crown Road reserve, to any such works as well as applying to the council for development consent for such works. 22 I finally indicated that, on my assessment of the application made to the council, the only matters for which development consent was sought in these proceedings were works proposed to be carried out entirely within Lot 201. 23 Although significant elements of the expert evidence, which had been provided in the reports by the three experts retained by Mr. Ekermawi and in the joint reports arising from the conferencing between each of Mr. Ekermawi's experts and the relevant council expert giving evidence on behalf of the council, related to matters outside the boundaries of Lot 201, that evidence is only relevant to the extent that it demonstrated that further applications would need to be made to the council for any works to either element of the access track. I indicated to Mr. Ekermawi and Mr. Mallik that, in my view, I was confined to dealing with the proposed works on Lot 201 and I invited them to consider that proposition. After a short adjournment, each of them indicated that they accepted that that this was the appropriate scope of the proceedings. 24 Although Mr. Ekermawi was granted leave, without opposition from the council, to amend his application in a number of respects, those amendments related entirely to works proposed to be carried out on Lot 201. 25 As a consequence, the only assessment that I am required to make concerning the adequacy of the vehicle access between the presently constructed termination of Minimbah Road and the entrance to Lot 201 is whether or not some upgrading of that access is required (but not the extent, nature or acceptability of any such upgrading). 26 At the commencement of this consideration, as earlier noted, rail ballast had recently been deposited on various portions of this access track. In addition, as earlier noted, Mr. Ekermawi had cleared additional elements to provide an access track that was now confined wholly within the road reserve of Minimbah Road or the Crown Road reserve rather than deviating, as it had formerly done in its meandering path, onto private land holdings to the east of those two road reserves. Questions of the acceptability or legality of those works, both of clearing and of the deposition of the road ballast, are not matters requiring any consideration by me in these proceedings.

[9]

The planning controls 31 Lot 201 is zoned Rural 1(a) under the Great Lakes Local Environmental Plan 1996. The erection of a dwelling is permissible with development consent. There are no issues arising from any of the provisions of the plan. Similarly, there are no issues with respect to the proposal arising under any development control plan. Although, at one point during the proceedings, Mr. Ekermawi indicated that he might be entitled to erect a rural shed by relying on the provisions of State Environmental Planning Policy 60 Exempt and Complying Development, that is not a matter that requires my consideration in these proceedings. The issues 32 The council raised a number of issues in the proceedings. There were no public submissions and, as a consequence, there are no objector issues to consider. Although the council's statement of facts and contentions listed a total of 18 contentions, a significant number of these would only arise for consideration if there were proposals as part of the this application to undertake works between the end of the constructed portion of Minimbah Road and the entrance to Lot 201. For reasons earlier discussed, there are no such proposals within the scope of matters to be determined in these proceedings and, as a consequence, these contentions relating to matters outside Lot 201 do not require assessment and determination in these proceedings. 33 Those issues raised by the council that remained for my consideration can, conveniently, be summarised as follows: o the adequacy of the plans depicting the work is proposed to be carried out relating not only to their dimensions but also has to be precise location; o the adequacy of the measures proposed within Lot 201 for compliance with the required access and asset protection provisions of Planning for Bushfire Protection; and o the adequacy of the ecological information and whether or not there was any basis upon which I could conclude that appropriate habitat protective measures could be provided - both on general ecological grounds and on specific ecological grounds concerning a threatened plant (Asperula asthenes) and a threatened species of frog (the Wallum Froglet). Case management and the expert evidence 34 This matter was the subject of three case management conferences prior to the hearing. The first two of those were conducted by Murrell C and the third by me. During the course of the second case management conference, specific directions were given concerning the preparation and filing of expert evidence, in support of Mr. Ekermawi's case, by experts in the disciplines of town planning; ecology; and bushfire protection and management. The directions given by Murrell C for each of these disciplines specifically nominated, by reference to the various contention numbers in the council's Statement of Facts and Contentions, the areas in each of the disciplines nominated above that were required to be addressed by the relevant expert. The directions required that such statements of evidence be filed by 17 May. Mr. Ekermawi filed the three required expert reports within the time specified by that direction. 35 At the commencement of the hearing in Forster Courthouse, I was advised that Mr. Ekermawi's experts were not to be made available to give oral evidence (despite Mr. Mallik having written to Mr. Ekermawi requesting that they be made available for such purpose). Mr. Ekermawi advised me that he was unable to make them available as he was of limited means and could not afford the cost of doing so - having spent in excess of $20,000 on the preparation of the expert reports and the consequent participation of each of his three experts in the joint conferencing process. 36 Although Mr. Mallik objected to Mr. Ekermawi's three expert statements of evidence (those being from Mr. Fish - town planning; Mr Mamott - ecology; and Dr. Meleo - bushfire protection and management), and to the elements contained in the three joint conference reports contributed by those three experts, I permitted the three statements and the entirety of the three joint expert reports to be admitted - subject to such submissions that Mr. Mallik might wish to make as to the weight to be given to that evidence as it was untested in court. Adequacy of the plans 37 As earlier observed, one of the matters raised by the council related, specifically, to the inadequacy of the information provided to it - including, specifically, the inadequacy of the plans upon which Mr. Ekermawi relied for the purposes of his application. For reasons that will be obvious from the following discussion, it is appropriate to set out this contention in full. The contention is in the following terms:

[11]

38 As earlier observed, during the course of case management on 30 March, Murrell C made specific directions concerning the various contentions that were to be dealt with in expert reports to be commissioned by Mr. Ekermawi. The directions given setting out the contentions required to be addressed by Mr. Ekermawi's town planning expert expressly included contention 1 set out above. 39 On 17 May, Mr. Ekermawi filed an expert report prepared by Mr. Fish, a town planning consultant whose curriculum vitae shows that he has some 14 years of post graduation experience (and a total of 21 years of related employment) in planning matters. His curriculum vitae lists the projects with which he has been associated - including a number of major works requiring the preparation of significant environmental impact statements. As Mr. Fish had not been made available for the purposes of giving oral evidence, he was unable to be questioned concerning the aspects of his expert report discussed below and, as a consequence, I had initial reservations as to the extent to which it was appropriate for me to comment on the competence or adequacy or, more correctly, incompetence and inadequacy, displayed by his expert report. 40 However, I note that, on page 7 of the document, Mr Fish states: This Expert Report has been prepared in accordance with the Expert Evidence practice direction and the Uniform Civil Procedures [sic] Rules 2005 Part 31 and Schedule 7. 41 As a consequence of that assertion, I am satisfied that the pages and figures extracted below from the document speak, eloquently and sufficiently, for themselves and that it is enough, I am also satisfied, to deal with his report in this limited fashion and leave those who read this judgement to draw their own conclusions about Mr. Fish's performance in these proceedings. 42 In response to the concerns about the adequacy of the plans, Mr. Fish's written report included the matters I have highlighted in red boxes in the scanned images of the two relevant pages of his report that are reproduced below (Figures 2 and 3).

[16]

48 The two planning experts, Ms Dunkerley for the council and Mr. Fish, produced a joint expert report after discussing the contentions for their consideration as directed by Murrell C. Mr. Fish's comments in the joint report concerning the council's contention 1, set out earlier, repeated the comments reproduced in the scanned red boxed extracts of his expert report. His only additional comment concerning the adequacy of the plans was that: Tony Fish (TF) is of the view that the amended plans attached in Appendix B to his report provide sufficient information although agrees that the plans are not drawn to scale. 49 It is clear that the approach taken by Mr. Fish has paid scant (if any) regard to the requirements of Schedule A of the Court's Practice Note for Class 1 Development Appeals or, if he was aware of them, simply chose to ignore the obligations that they placed on Mr. Ekermawi. 50 For example, Schedule A sets the first four (general) requirements for plans as being: o Plans should be drawn to an appropriate scale shown on the drawings. o Plans should be drawn with clarity. o Plans should indicate a north point. o All plans shall be consistent with each other. 51 A similar lack of regard has been shown for other requirements of Schedule A of a more detail-oriented nature. 52 As a consequence, it appears to me that Mr. Ekermawi has come to this hearing believing that the plans reproduced above are sufficiently accurate and detailed to be capable of providing a basis for development consent where they clearly are not. Indeed, he appears to have relied on Mr Fish's expert report to found (or, at least, support) such belief. 53 However, I put the proposition to Mr. Mallik that, although inadequate as to their presentation, the necessary essential information elements appeared to be present in the "plans" and was capable of being incorporated in proper plans that would meet the relevant requirements for their accuracy and presentation. Mr. Mallik agreed with this proposition. 54 A tendered survey plan, commissioned by Mr. Ekermawi from Lidbury Summers & Whiteman, consulting surveyors, provides, as was agreed by Ms Dunkerley, an adequate general site plan. 55 It therefore follows that, if properly prepared, scaled and dimensioned plans (showing the proposed awning structure in elevation and in section) - with appropriate structural and engineering details being provided with the necessary subsequent application for a construction certificate - are filed and served, there does not appear to be any information-based merit impediment to my approval of this element of the proposal. The consequences that flow from this conclusion are discussed later in the context of my consideration of how this matter should be dealt with further. 56 With respect to the matters shown, conceptually, on the plan showing the immediate vicinity of the railway carriage, Ms Dunkerley accepted that the effluent disposal report provided by Mr. Ekermawi to the council satisfied the council that it was possible to establish an effluent disposal system and appropriate effluent disposal area on the site. Subsequently, Mr. Ekermawi agreed to accept a condition that any effluent disposal area will be required to be within the asset protection zone and Mr. Bell, the council's ecologist, agreed that there would be no unacceptable ecological impact of that occurring. Such a condition is to be incorporated in the revised conditions of consent to be utilised if development consent is to be granted. 57 As Mr. Ekermawi also agreed to accept a condition requiring a separate application to the council pursuant to the Local Government Act for the installation of the effluent disposal system, there are no issues requiring my consideration arising out of that aspect of the proposed development. 58 As I understood Mr. Britt's evidence, he accepted that the two proposed rainwater storage tanks collecting rainwater from the roof of the awning proposed to be erected over the railway carriage would, in addition to providing potable water for use by the occupants of the railway carriage, also provide an adequate water supply for fire fighting purposes provided, as proposed by the RFS and incorporated in the proposed conditions, an appropriate pump and hose system was available for such purposes. 59 However, during the course of his closing submissions, Mr. Ekermawi indicated that, if I concluded that new plans were required for the awning structure, he wished to have me refuse approval for the awning structure, as he did not consider he could afford to have such plans prepared. When I questioned him as to how there would be an adequate water supply for human consumption and for fire fighting purposes, he drew my attention to the statement in his development application that he had a dam on the property. His development application also indicated that he considered it was possible to sink a bore for water supply purposes. 60 It is necessary that I be satisfied that there is an adequate water supply for domestic use and for fire fighting purposes. During the course of the site inspection, no inspection was made of the dam and, as a consequence, I have no evidence of its size and capacity and, importantly for this ecologically sensitive area, I have no information on what, if any, would be the construction impacts of the necessary trenching from the dam, wherever it is located, for piping water to the vicinity of the railway carriage to ensure that there was an adequate, fire protected, supply of water. In addition, although it might be possible for Mr. Ekermawi to obtain approval for a water supply bore of adequate yield at an appropriate location, he has not applied for the necessary licence to do so and, even if such a licence were held, I would need to be satisfied of the capacity of any such bore and such satisfaction would only come from the sinking of a bore and its flow rate testing once sunk. 61 The consequence of the foregoing is that, if I were to delete the awning and, thus, its ability to harvest rainwater, I could not be satisfied that there was an adequate water supply for domestic and fire fighting purposes and I would be obliged to refuse the application. 62 The appropriate alternative, in my view, is to retain the proposed awning and require the preparation of adequate plans for the awning through the process discussed at the conclusion of this decision. If, in the alternative, Mr. Ekermawi wished subsequently to seek to delete the awning and substitute another water supply, he could discuss with the council whether or not that could be achieved by a modification application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the EPA Act) (should he eventually obtain, through the outcome of these proceedings) an operative development consent for his various proposals).

[17]

Bushfire issues 63 During the course of his oral evidence, Mr. Britt indicated that he was now satisfied that the proposed 20 m asset protection zone to the south of the railway carriage was acceptable and that, to the north, east and west of the railway carriage, a 35 m asset protection zone only was required rather than the 100 m asset protection zone for which Mr. Ekermawi seeks approval. 64 Mr. Britt also indicated, during the course of the site inspection, his concerns about the long-term compliance of the internal access within the Lot 201 being presently or remaining for the future compliant with the necessary standard in 4.2.3 of Planning for Bushfire Protection namely that tankers of up to 15 tonnes should be able to traverse the track. He suggested that works might be required to achieve the necessary standard and, subsequently, to retain the track's compliance with that standard. 65 Mr Britt also indicated, in his oral evidence, that he considered that there would be no difficulty in constructing the internal loop track or turning circle that would be necessary for compliance with Planning for Bushfire Protection nor would there be any difficulty in constructing the necessary vehicle passing bays required within the property for such compliance. 66 Mr. Bell indicated that he did not consider that there would be any unacceptable ecological impacts from the use of the present access track within Lot 201, the creation of any necessary passing bays within Lot 201, the clearing of a 35 m asset protection zone to the north east and west and the proposed asset protection zone element to the south of the railway carriage as marked and inspected during the course of the site visit. He also agreed that canopy thinning and tree removal within the more limited asset protection zone would be acceptable if it were properly supervised as proposed by the council's without prejudice conditions of consent and subject to restrictions so that no hollow bearing trees, no Scribbly Gums and no Swamp Mahoganies (these two tree species being koala food trees) were removed during any canopy separation establishment as required by Planning for Bushfire Protection. 67 Mr. Bell also agreed that necessary canopy pruning to achieve the requirements of the Planning for Bushfire Protection could be undertaken without unacceptable ecological impacts provided it was confined to the smaller proposed asset protection zone specified by Mr. Britt in his oral evidence and subject to the same tree restrictions as earlier noted. 68 It was Mr. Britt's uncontradicted oral evidence that, if there were to be an asset protection zone on the more limited basis he proposed, this limited asset protection zone, coupled with a requirement that the railway carriage comply with level 1 construction standards, which I understood to require matters such as window screens to a specified fire resistant standard and the like, would mean that the railway carriage would be protected from ember attack and would not be subject to direct flame attack and thus would provide a safe refuge for any occupants of the property, at any time there might be a bushfire on the property. It was also Mr. Britt's oral evidence, in response to a question from Mr. Ekermawi, that not only was any more extensive asset protection zone unnecessary (than that described by Mr. Britt in this oral evidence) but that any increased asset protection zone - to the dimensions requested by Mr. Ekermawi - would not provide any effective increase in bushfire protection to occupants of the property. 69 Mr. Britt, however, also acknowledged that, although he had reservations about the present standard of the access track within Lot 201, he was not an expert in road construction. 70 In light of the obvious history of the use of the track to deliver the railway carriage and other materials to Mr. Ekermawi's construction location, together with the limited traffic use that the track will sustain as a consequence of the proposed use of the railway carriage for residential purposes, I am satisfied that no work would be required, at present, to upgrade the track within Lot 201 to be satisfactory, in the short term, for compliance with the relevant provisions of Planning for Bushfire Protection. However, it will be necessary for there to be a condition of development consent that requires that the access track, passing bays and turning loop within Lot 201 be maintained in a condition that will permit safe passage by a vehicle weighing 15 tonnes - thus ensuring ongoing compliance with the provisions for vehicle access contained in Planning for Bushfire Protection. 71 Mr. Ekermawi, in his submissions, made it clear that he wished to have an asset protection zone to the north, east and west of 100 m - not only because he considered that, contrary to Mr. Britt's evidence, there would be greater bushfire protection for occupants of the railway carriage but also because he wished to be able to clear this area for the purposes of planting fruit trees and other vegetation including, if required, additional koala food trees. He also indicated that he wished to use what he described as an existing return track (that commenced in a direction toward the north from the railway carriage and, at some point between its commencement and the northern boundary of Lot 201, turned to go back to the entrance gateway of Lot 201) in preference to constructing a turning facility within the asset protection zone. 72 The first time that Mr. Ekermawi raised the question of this north leading internal track was during the course of his submissions. This track was not inspected during the course of the site visit nor was Mr. Britt provided any opportunity to make an assessment of its appropriateness as to surface; vertical clearance from vegetation; appropriateness of widths; or availability of acceptable locations for passing bays. As a consequence, even assuming that there would be no ecological impact of such an alternative egress route, I have no evidentiary basis upon which I could be satisfied that it would be appropriate in bushfire protection terms. However, this finding would not preclude a modification application being made and assessed pursuant to s 96 of the Act, after development consent was given, to permit use of this track if such use were appropriate. 73 As a consequence, there is no basis upon which I could conclude that Mr. Ekermawi's northern track could be used instead of a proper turning arrangement in the vicinity of the railway carriage. In addition, given the evidence of Mr. Britt that there is no need for (and would be no additional fire protection benefit obtained by permitting) the clearing of a 100 m asset protection zone - when coupled with the ecological uncertainty that would arise in those circumstances - there is also no basis upon which I could grant consent for the clearance of any asset protection zone beyond the minimum size necessary for protection of the occupants of the railway carriage. 74 Therefore, I am satisfied that, if there is to be a development consent issued, it can only be on the basis of the minimum asset protection zone with that asset protection zone incorporating a turning facility for fire fighting vehicles. Any conditions of consent and the properly prepared site plan are to provide for this. Ecological issues 75 By far the most complex matters requiring consideration in these proceedings are the possible ecological impacts of the proposed developments on Lot 201. These are arise not only with respect to the potential or actual presence of a number of threatened species on Lot 201 but also concerning the SEPP 14 wetlands mapped to the south of the railway carriage and the existence of a number of koala food trees identified as being present on Lot 201 - thus requiring consideration pursuant to State Environmental Planning Policy 44 Koala Habitat Protection (SEPP 44). 76 There are, as a consequence, three ecological issues arising for consideration in these proceedings. They concern possible impacts on the Asperula; the Wallum Froglet; and removal of fauna habitat as a consequence of clearing for the asset protection zone. With respect to all three issues, two questions require consideration. The first is whether there is adequate information to enable me to make a determination with respect to the issue and, second, if I can proceed to do so, at what protective measures should be required in each instance.

[39]

No Condition Mr Ekermawi's position Determination 1 FURTHER FLORA & FAUNA SURVEYS Opposed - not necessary as reports already provided Not required for reasons dealt with in earlier part of decision 2 DELETED 3 DELETED 4 PLANS Mr Fish's plans are adequate See earlier section requiring new plans for reasons given. 5 CONSTRUCTION CERTIFICATE Not needed Required - statutory requirement 6 MOVEABLE DWELLING APPLICATION Accepted 7.1(A) S 88B INSTRUMENT RE LIMITS OF DEVELOPMENT Opposed - unnecessary and too costly Not required as protective fence defined earlier in decision provides protection for reasons dealt with in earlier part of decision 7.1(B) S 88B INSTRUMENT RE KEEPING OF CATS AND DOGS Opposed Entirely appropriate as a statutory basis for providing protection to native fauna 7.1(C) S 88B INSTRUMENT RE PROHIBITION OF ACTIVITIES IN SWAMP SLEROPHYLL FOREST Opposed S 88B instrument not appropriate - matters in condition 7.1(C) other than (v), (vii), (ix), (x) are not appropriate for generalised conditions of consent as too broad and/or contrary to other elements of this decision. Paragraphs (v), (vii), (ix), (x) may be imposed as conditions of consent. Some activities may require separate consent before being carried out and that is a matter for the council. 7.2 RIGHTS OF ENTRY ETC Opposed Rejected as properly Class 4 or other enforcement process 7.3 DEFINES S 88B PARTIES Opposed Accepted as necessary for 7.1(B) only 7.4 REQUIREMENT FOR REGISTRATION Opposed Accepted as necessary for 7.1(B) only 8 DELETED 9 DELETED 10 ASSET PROTECTION ZONE Accepted on 100m basis Asset protection zone to be smaller one as discussed earlier 11 ACCESS TRACK Objected to last sentence as relates to track outside Lot 201. Last sentence deleted as the track outside Lot 201 is not the subject of the application. 12 FIRE PROTECTION MEASURES Accepted 13 APPLICATION FOR ON-SITE EFFLUENT SYSTEM Accepted 14 APPROVAL TO OPERATE ON-SITE EFFLUENT SYSTEM Accepted 15 BCA COMPLIANCE Limited acceptance Required - statutory requirement 16 CLEARING OF APZ Opposed as existing reports are adequate Limited acceptance confined to requirement that clearing for APZ to be undertaken under supervision of AQF Level 3 arborist who is to provide a report to council on completion of works. Otherwise, prohibition on any removal of any Swamp Mahogany trees; Scribbly Gum trees; and any other trees that contain hollows that are potential bird or arboreal mammal habitats as an express condition is appropriate. 17 BOUNDARY MARKING OF APZ Opposed Accepted as number of markers (as earlier discussed) is small and can be done with white painted star pickets 18 STRUCTURAL DRAWINGS Not required as no structural works are to be undertaken The plans for the proposed awning over the railway carriage will also need to include proper structural engineering plans for the awning as well as proper engineering specifications for the footings. As Mr Ekermawi informed me that he did not propose to have any concrete slab floor for this awning but merely to rely on the natural ground, no slab specification is necessary. Mr Mallik informed me that the council envisaged that there would be two waste management plans, one to deal with the waste generated during the construction phase and the other to deal with the disposal of waste from occupation of the railway carriage. The requirement for a construction waste management plan is appropriate and should be reflected in condition 19.

[44]

Conclusion 103 Mr. Mallik submitted that I should conclude that, although there may be a presumption that Lot 201 can be used for the purposes of dwelling, the presumption is not absolute and, as discussed by McClellan CJ in BGP Properties v Lake Macquarie Council [2004] NSWLEC 399 at para 117 and following, such a presumption may be set aside as a consequence of insurmountable environmental constraints. However, given the conclusion that I have reached with respect to the proposed works on Lot 201, it is unnecessary to deal, further, with this proposition. 104 I have concluded that, subject to the basic requirement that Mr. Ekermawi file and serve properly dimensioned and scaled plans, including elevations, in substitution for the plans shown above, there is no basis, subject to the revisions of the conditions also discussed earlier, why Mr. Ekermawi should not be given development consent for the proposed work on Lot 201. 105 However, such development consent is also to be subject to a deferred commencement condition requiring that such upgrading works as may be required to the unconstructed portion of Minimbah Road and within the Crown Road reserve to meet the requirements of Planning for Bushfire Protection shall have been undertaken to the satisfaction of the council before any consent from these proceedings becomes operative (to ensure that the access track meets the necessary standards of Planning for Bushfire Protection). 106 Whilst there may well be formidable and, possibly, insurmountable hurdles to obtaining such approval to upgrade the access track between the end of Minimbah Road and the entrance to Lot 201, that is not a matter upon which it is appropriate for me to speculate. It is sufficient, for the purposes of this decision, to note that the joint expert reports of the ecological and bushfire experts separately indicated that further extensive expert examination would be necessary as part of any application for approval for such works. 107 However, that is a matter for consideration by the council (as consent authority for both elements of the access track) and for the Department of Lands (for the purposes of owner's consent for the portion of the access track that is the un-formed Crown Road reserve). 108 As a consequence, although I have concluded that Mr. Ekermawi should be granted development consent (provided acceptable and properly drawn plans are provided and revised conditions of consent to reflect this decision are filed electronically and in hard copy), I cannot make orders until I have received those compliant plans. 109 I therefore propose to adjourn the proceedings for six weeks to enable Mr. Ekermawi to have prepared satisfactory and compliant plans and to submit them to the council and, thereafter, for the council to prepare conditions specifying those plans and incorporating the deferred commencement and operational condition changes that are necessary as a consequence of this decision. Directions 110 I therefore give the following directions: 1. Mr. Ekermawi is to serve on the council and file with the Court, by 4.30pm on Friday 1 October: - a properly scaled and dimensioned version of the "plan" reproduced at Figure 6 above with the plan to have a correctly marked north point on it; - properly scaled and dimensioned versions of the elevations "plan" at Figure 5 above with the elevations plan to include elevations from all four aspects of the proposed structure to be shown on them; and - a properly prepared and dimensioned version of Figure 8 above with correctly marked north point on it; 2. If Mr. Ekermawi satisfies (1), the council is to file, electronically by e-mail to the Court and in hard copy, and serve on Mr Ekermawi, by 4.30pm on Friday 15 October, conditions of consent referencing the revised plans provided pursuant to (1) and otherwise reflecting the terms of this decision; 3. If there is any dispute between the parties about the adequacy of any plans filed and served by Mr Ekermawi pursuant to (1), the parties may re-list the matter before me with such re-listing to be on two day's notice; 4. If there is any dispute between the parties about the drafting of the conditions in (2), the parties may re-list the matter before me for further submissions on the wording of the conditions (but not on the substance of the conditions) with such re-listing to be on two day's notice; 5. Mr. Ekermawi has liberty, on two days notice (if and only if such notice is given prior to 4.30pm on Monday 20 September), to have the matter re-listed before me should he wish to seek an extension of time for compliance with (1); 6. The matter is listed for further mention before me at 9 AM on Wednesday 20 October at 225 Macquarie Street, Sydney; 7. If (1) and (2) are complied with and no application to re-list is made pursuant to (3), (4) or (5), I will make orders in chambers and vacate the mention before me set in (6); and 8. If Mr. Ekermawi does not satisfy (1) by filing the plans required by that direction or is not granted, pursuant to (4), an extension of time within which to comply with (1), the appeal will be dismissed without further hearing.