Elzerman v Eurobodalla Shire Council [2011] NSWLEC 1036 | Case summary

Impact on the EEC and threatened species 11The Council contends that the ecological assessments prepared by the applicant do not adequately consider likely direct and indirect impacts of the proposed development on the EEC and threatened species on the site. The Council's position is that it has to be assumed that the proposed development is likely to have a significant impact and so a Species Impact Statement (SIS) is required. In the alternative, the Council submits that the applicant should be required to prepare a property vegetation plan for approval of the Council and Catchment Management Authority, or that if a SIS is not required, that development consent be granted subject to a deferred commencement condition requiring the preparation of a vegetation management plan. 12The applicant submits that there is no significant impact on the EEC and that a SIS is not required. There may be a marginal change in impact on areas outside the APZ from the existing use of the land, which of itself is not a significant impact. To the extent that may be any such impact, whether significant or not, then it can be satisfactorily controlled by conditions of consent. Conditions of consent are the most appropriate statutory mechanism to control impacts. 13Section 78A(8)(b) of the Act requires that development application must be accompanied by a SIS if the application is in respect of development on land that "is likely to significantly affect threatened species, populations or ecological communities, or their habitats". This requirement is a jurisdictional fact, and if a SIS is required but has not been prepared then consent cannot be granted: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Anor [2010] NSWLEC 48, at [81]. Section 78A(8)(b) focuses on the development proposed in the development application, and it is the development as it stands immediately before the determination of the application that has to be evaluated for its likely impact on threatened species, populations or ecological communities or their habitats: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Anor [2010] NSWLEC 48; Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121. Ameliorative measures proposed as part of the development application may be considered. In Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Anor [2010] NSWLEC 48, Preston CJ held: 83 Secondly, the description of the development the subject of the development application is not restricted to the nature, extent and other features of the development but can also include ameliorative measures to prevent, mitigate, remedy or offset impacts of the development. However, in order to be able to be considered in answering the inquiry of likely impact, the ameliorative measures must be proposed as part of the development application. Ameliorative measures not proposed as part of the development application, but which are imposed afterwards, as conditions of consent or restrictions in construction certificates, are not able to be considered in answering the inquiry as to likely impact. This is because the inquiry required by s 78A(8)(b) focuses on the development and its likely impact before the determination of the application and not afterwards: see Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 192; Smyth v Nambucca Shire Council [1999] NSWLEC 226; (1999) 105 LGERA 65 at [11]-[13]; Corowa v Geographe Point Pty Ltd at [57]. 14The word "likely" as used in s78A(8)(b) means "a real chance or possibility", and "significantly" means "important", "notable", "weighty" or "more than ordinary": Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Anor [2010] NSWLEC 48. 15It was common ground that the vegetation on the site comprises the Bangalay Sand Forest EEC. In 2005 the Scientific Committee established by the Threatened Species Conservation Act made a Final Determination to list the Bangalay Sand Forest of the Sydney Basin and South East Corner bioregions as an EEC (the Final Determination). The Final Determination notes (at [5]) that the EEC "is currently known from parts of the Local Government Areas of Sutherland, Wollongong, Shellharbour, Kiama, Shoalhaven, Eurobodalla and Bega Valley but may occur elsewhere in these bioregions". Paragraph 10 of the Final Determination states: 10. Available vegetation mapping indicates that Bangalay Sand Forest has suffered substantial levels of clearing. The coastline between Gerroa and Bermagui includes an estimated area of about 3450 hectares, representing one-quarter of the estimated pre-1750 distribution of the community (ecosystems 27 and 28 of Thomas et al. 2000). Similarly, Tindall et al. (2004) map about 2200 hectares of Littoral Thicket, representing about one-third of the its estimated pre-European distribution between Sydney and Moruya. South of Bermagui, Keith & Bedward (1999) mapped a further 650 hectares, representing less than two-fifths of the estimated pre-1750 distribution. However, recent reconnaissance suggests that these studies may have over-estimated the remaining area of Bangalay Sand Forest (J. Miles, pers. comm.). North of Gerroa, only small fragments of the community persist, for example, on Minnamurra Spit (Mills 2000), around Primbee and Windang (NPWS 2002), Bundeena and Taren Point. Overall, these estimates indicate large reductions in the geographic distribution of the community. Clearing of native vegetation is listed as a Key Threatening Process under the Threatened Species Conservation Act (1995). 16Paragraph 13 states: Additions to the coastal reserve system and land use zoning have protected some stands of Bangalay Sand Forest from clearing. However, pressures associated with increasing human populations and recreational activity on the coast continue to intensify, especially where stands of the community occur in the vicinity of coastal villages and urban centres, and where new reserves involve the establishment of camping areas and other visitor infrastructure. Disturbance associated with increased human access contributes particularly to habitat degradation, increased frequencies of bushfire ignitions, and weed invasion, posing major threats even on land managed for conservation. In addition to the processes outlined above, activities such as illegal fire wood collection by campers and coastal residents may threaten habitat for vertebrate and invertebrate fauna and disrupt nutrient and carbon cycling. Removal of dead wood and dead trees is listed as a Key Threatening Process under the Threatened Species Conservation Act (1995). These processes may result in a large reduction in ecological function of the community. 17The assessment documents prepared on behalf of the applicant are the Flora and Fauna Assessment Report dated 24 December 2009 (Exhibit E), Bushfire Protection Assessment dated 9 September 2010 (Exhibit F), Additional Information - Flora and Fauna Assessment dated 11 August 2010 (Exhibit J), and the Bushfire Preparedness and Environmental Management Plan dated 9 September 2010 (Exhibit K) (Environmental Assessment documents). The assessment is based on a study area of 2.4ha, being an area 10-20m beyond the APZ to the limits of expected indirect impacts. 18The Flora and Fauna Assessment Report of 24 December 2009 noted that flora and fauna surveys were undertaken on 14 July 2009. Twenty fauna species were recorded on the site including the threatened species Yellow-bellied Glider, Masked Owl, and the Eastern Freetail-bat, and the report noted that while these highly mobile threatened fauna would potentially forage in the study area they were not expected to be dependent on the habitats in the study area. One vegetation community, Coastal Sand Forest, was identified in the study area and a total of 32 flora species were recorded in the study area. The report notes (at 1.2.2) that the location of the proposed dwelling has been chosen to take advantage of existing clearing so that no large or hollow-bearing trees need to be removed for the proposal, and that access to the dwelling will follow the existing access track along the northern property boundary requiring the removal of two trees. The report states that direct impacts would be limited to the removal of pruning of a few trees, shrubs, groundcovers and some minor excavations in association with the construction of the dwelling, driveways, effluent treatment, connection to services and provision of the APZ. Indirect impacts on flora and fauna are expected to extend up to 20m beyond the proposed footprint. 19The Additional Information - Flora and Fauna Assessment dated 11 August 2010 was provided in response to the Council's contention that the ecological assessment had not considered the direct and indirect impacts of the proposal sufficiently. That report documented the additional surveys that had been undertaken between 5 July to 9 August 2010, and provided an assessment of significance for the threatened flora and fauna species identified by the Council. The assessment noted (at p3) the following limitations: The results of fauna surveys can be optimised by conducting investigations over a long period to compensate for the effect of unfavourable weather, seasonal changes and climatic variation. In general, the longer the survey the more species will be detected. Results can also be improved by using a wide variety of techniques, since some species are more likely to be detected by a particular method. Moreover, surveys are subject to constraints that determine the amount of time allocated, the methods used and the timing of the work. The additional surveys undertaken for this report were developed in consultation with ELA, but ultimately were determined by the client. Thus, the results should be viewed in the light of these limitations, The fauna detected during the survey period are a guide to the native fauna present, but are by no means a definitive list of the species occurring in the study area or the subject land. 20The ameliorative measures proposed by the applicant are those recommended by Mr Smithers in the Bushfire Preparedness and Environmental Management Plan prepared on 9 September 2010, and in proposed conditions of consent tendered at the hearing (exhibit N). The measures in the Bushfire Preparedness and Environmental Management Plan include no clearing of remnant native vegetation beyond the APZ except in association with permissible landuses, avoiding felling hollow-bearing trees in association with permissible landuses, not deliberately bringing noxious or environmental weeds or known invasive species onto the site, and managing weeds. The conditions proposed by the applicant include condition 3, which requires preparation of a new section for the Bushfire Preparedness and Environmental Management Plan headed "Environmental Management of Development" for both the construction phase and ongoing maintenance and use. Proposed condition 3 requires that the Bushfire Preparedness and Environmental Management Plan be complied with at all times. 21The provisions in the proposed conditions for the Construction Phase of the development are, subject to some variation in wording, substantially the same as those in the Management Action Plan proposed by the Council (exhibit 12). In relation to the Ongoing Maintenance and Use provisions, the Council's proposal makes separate provision for Zone A (the APZ, primary and emergency access track) and Zone B (remainder of the site). The applicant proposes restrictions on planting of invasive exotic perennial grass species, and known weed or invasive plant species, a prohibition on keeping of domestic cats, and restrictions on dogs, which are similar to those proposed in the Council Management Action Plan. 22In deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, the factors in s 5A of the Act must be taken into account: 5A Significant effect on threatened species, populations or ecological communities, or their habitats (1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) each of the factors listed in subsection (2), (b) any assessment guidelines. (2) The following factors must be taken into account in making a determination under this section: (a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction, (b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction, (c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed: (i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or (ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction, (d) in relation to the habitat of a threatened species, population or ecological community: (i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and (ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality, (e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly), (f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan, (g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process. (3) In this section: assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994. key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 1994. 23The Department of Environment and Climate Change Threatened Species Assessment Guidelines (April 2007) referred to in s5A(1)(b) define the "subject site" as the area directly affected by the proposal, and the "study area" as the subject site "and any additional areas which are likely to be affected by the proposal, either directly or indirectly". The Guidelines state that "the study area should extend as far as is necessary to take all potential impacts into account". The Guidelines state (p12): All factors should be considered as well as any other information deemed relevant to the assessment. The assessment of significance should not be used as a substitute for a species impact statement. Application of the precautionary principle requires that a lack of scientific certainty about the potential impacts of an action does not itself justify a decision that the action is not likely to have a significant impact. If information is not available to conclusively determine that there will not be a significant impact on a threatened species, population or ecological community, or its habitat, then it should be assumed that a significant impact is likely and a species impact statement should be prepared. 24The proposal and the environmental assessment have been considered by DECCW. In a letter dated 3 June 2010 to the Council, Dr Sandra Jones, Head of Operations Unit - South East Region of the Environment Protection and Regulation Group stated that DECCW would not normally require a SIS to be completed for a single dwelling application. Dr Jones stated that DECCW did not consider that adequate survey effort had been undertaken for the assessment, that by locating the development well within the natural vegetation more of the EEC and threatened species habitat were opened up to disturbance, and that the proposed mitigation measures would be difficult to effectively implement. 25In a letter dated 22 September 2010 Dr Jones commented on the mitigation measures proposed in the Bushfire Preparedness and Environmental Management Plan (Exhibit K): DECCW do not consider that this plan provides for any mitigation measures that can practically be applied and enforced that will improve or compensate for the development on the property. The proposed commitment applies little additional protection following consent and does not address how the land will be secured and protected against permissible land uses, such as unsuitable grazing and vegetation removal. ... DECCW consider that without a secure conservation mechanism over the area outside the dwelling and APZ that the land will become severely degraded by permissible activities which are not protected against in the Environmental Management Plan or assessed in the Flora and Fauna Assessment. DECCW do not support a development with the potential to impact on 40ha of high quality mature forest containing an EEC without a secure conservation mechanism to protect high quality biodiversity values. 26Dr Jones concluded: As the proponent is unwilling to provide appropriate mitigation measures for the development on the subject lot that can protect the values of threatened species on site, DECCW is of the opinion that there is reasonable doubt regarding the impact of developing a dwelling site in the centre of an EEC within the property. DECCW is also of the opinion that there is reasonable doubt regarding the indirect impacts on fauna species of the continued use of the property once it is inhabited. DECCW therefore consider that in the absence of such measures, that the development will have a Significant Impact on the Endangered Ecological Community, Bangalay Sand Forest and potentially other species such as Yellow-bellied Glider and Masked Owl and therefore the proponent should prepare a Species Impact Statement. 27The experts agreed that the site is of high ecological integrity. The experts agreed that the local occurrence of the EEC is approximately 760ha, which is the area between Broulee and Moruya. It was common ground that the site area is approximately 133.94ha, and that 1.065ha will be directly affected by the proposal, being the amended APZ, accessway, services, and effluent disposal. 28The Flora and Fauna Assessment dated 24 December 2009 was based on a study area of approximately 10-20m beyond the area directly affected, a total area of approximately 2.4ha. The experts agreed that if the full extent of all impacts associated with the development can be confined to that 2.4ha area, and all indirect impacts are sufficiently mitigated, including security of the vegetation to remain, then a significant impact is unlikely. The experts disagreed as to whether the study area is sufficient to take into account all potential impacts associated with the proposal, and whether an adequate assessment of conservation values and potential impacts has occurred beyond the study area. 29It was common ground that the agricultural use of the land would enable certain activities to be undertaken without the requirement for consent under the Native Vegetation Act 2003 (the NV Act). Section 22 permits clearing of native vegetation for routine agricultural management activities; however, s22(2)(a) does not authorise clearing of native vegetation "if it exceeds the minimum extent necessary for carrying out the activity". The definition of "routine agricultural management activities" (RAMAs) in s11 of the NV Act includes construction, operation and maintenance of rural infrastructure, including dams, permanent fences, stockyards and farm roads; and collection of firewood (other than for commercial purposes). Clearing carried out in accordance with a bushfire management plan under the Rural Fires Act 1997 could also be carried out on the site. 30The experts disagreed as to whether the occupation of a dwelling would provide the potential for indirect impacts such as collection of firewood and recreational activities to occur at a frequency, duration or extent which will have a significant impact on the EEC. Ms Hayes was of the opinion that ancillary activities associated with permanent occupation of the land could result in additional clearing: for example, walking tracks, vehicle tracks, collection of firewood, ancillary structures such as chicken coop or vegetable garden, and that it was inadequate to assume that all such activities would be contained in the APZ. Mr Smithers was of the opinion that there was no reason to assume there would be a measurable increase in existing permissible uses on the property, and that the range of additional activities were either not part of the proposal, were existing permissible uses including RAMAs, or could be contained within the APZ. 31The three factors applicable to an EEC under s5A(2) are (c), (d) and (g). In considering first factor (c), it was common ground that the proposal will involve the direct disturbance of 1.065ha. The experts disagreed as to the direct impacts in the 2.4ha study area and indirect effects over the area outside the study area. Ms Hayes' evidence was that the survey effort employed to date is limited to the perimeter of the property and five incursions of approximately 200m into the site; the 11 hollow bearing trees identified to date are not representative of the quantity or quality of the available habitat on the site. The habitat on the site is suitable for 23 threatened species known to occur in the locality. The Bangalay sand forest is not uniform across the site. The biodiversity values of the entire site have not been adequately surveyed to identify the floristic variations or the presence, location or abundance of threatened species and significant habitat on the land. Mr Smithers was of the opinion that there is no reason to assume that there will be a measurable increase in existing permissible uses including RAMAs, in association with the proposal, beyond those identified as part of the proposal. 32It was common ground that the proposal would adversely affect or modify an area of 1.065ha of the EEC on the site. The evidence of Ms Hayes was that approximately 300ha of the EEC in the local occurrence of 760ha has poor integrity and security because it is located within the urban precinct or around existing development. Ms Hayes identified patches of the EEC close to the township of Broulee, and further south of the site, at risk of isolation and poorly connected, and small fragments close to the highway. On her evidence, the site is located within the largest intact stand in the locality being approximately 400ha, some of which is in Council ownership. The Council provided evidence that the land immediately to the south, and to the east on the other side of George Bass Drive, is subject to a Property Vegetation Plan (exhibit 2, tab 7). 33Considering s5A(2)(c)(i) in the context of the location of the site as part of an area of the EEC which is both relatively intact and secure, I do not find that the direct disturbance attributable to the proposal, even assuming that to be the 2.4ha study area, would have an adverse effect such that the local occurrence is likely to be placed at risk of extinction. However, the experts did not agree as to the extent of any indirect effects. In considering s5A(2)(c)(ii), again it is the indirect effects on the site outside the study area attributable to permanent occupation of the site that are in issue. The applicant proposes conditions requiring weed management on the site and restrictions on plantings within 20m of the APZ which would address some of the potential indirect effects on the composition of the EEC. 34In considering s5A(2)(d), Ms Hayes' evidence was that indirect impacts outside the study area have the potential to reduce canopy connectivity through the area. Mr Smithers disagreed, on the basis that there would be trees left within the APZ, and extensive swathes of similar vegetation on either side around the APZ and the study area, and that many of the species for which the area is habitat can fly or glide and are able to traverse George Bass Drive and other more significant potential impediments to connectivity. The extent of habitat proposed to be removed is that within the 1.065ha APZ. The EEC in the site is contiguous with that in the adjoining properties to the south and north, and to the east on the other side of George Bass Drive, and is part of the area of 400ha which on Ms Hayes' evidence is of high ecological integrity. The evidence before me does not establish that the direct impact on the 1.065ha, or the 2.4ha study area, is such that the local occurrence of the EEC is likely to suffer the adverse effects identified in s5A(2)(d). 35Section 5A(2)(g) requires consideration of key threatening processes. The relevant key threatening processes listed in Schedule 3 to the TSC Act include clearing of native vegetation, competition and habitat degradation from feral animals including rabbits and goats, predation by dogs, feral cats and foxes, high frequency fire, removal of dead wood and trees, invasion of certain plant species, and loss of hollow-bearing trees. The Final Determination notes at paragraph 13 pressures associated with increasing human populations and recreational activities including habitat degradation, increasing frequency of bushfire, weed invasion, and removal of dead wood and timber. 36Clearing of native vegetation for the establishment and maintenance of the APZ is necessarily part of the proposed development. Maintaining the existing vehicle access tracks to a 4m formed surface and 1m cleared of undergrowth is proposed as part of the Bushfire Preparedness and Environmental Management Plan. The Bushfire Preparedness and Environmental Management Plan proposes other maintenance requirements to reduce the risk of bushfire, and weed control measures. The applicant proposes conditions restrictions on dogs and cats, and restrictions on plantings within 20m of the APZ. I accept the evidence of Ms Hayes that permanent occupation of the site may result in additional activities associated with recreational use of the land, collection of firewood, and provision of additional ancillary structures. The applicant's proposed requirements do not include provision for retention of fallen dead timber, control of feral animals, retention of hollow bearing trees after the construction phase, location of ancillary structures within the APZ, and location of light and noise sources near hollow bearing trees. Competition from feral animals including rabbits and goats and predation by foxes, removal of dead wood and trees, invasion of certain plant species, and loss of hollow-bearing trees, are included in the Key threatening processes in Schedule 3 of the TSC Act. The applicant relies on the existing practice of collecting domestic firewood only through clearing existing access tracks, on current weed control and management practices on the site, and on the size of the APZ which would provide room for any additional ancillary structures or uses such as a vegetable garden. However, any development consent granted to the proposed development runs with the land and the position of potential future occupants must be considered. I find that the proposed development is likely to increase the impact of a key threatening process. 37The authorities establish that a positive answer to any one or more of the seven factors in s5A does not mandate an affirmative answer to the question of whether there is likely to be a significant effect such that a SIS is required, and equally does not preclude a negative answer: Speleological Society at [85], [86]. The scale of the clearing required as part of the proposed development, and the direct impacts attributable to the APZ and the vehicle access tracks, in the context of the site and the distribution of the EEC in the local area, are not such as to result in a conclusion that there is likely to be a significant impact such as to require completion of a SIS. However, on the evidence before me there is uncertainty as to the extent of indirect impacts attributable to permanent occupation of the site. The Additional Information - Flora and Fauna Assessment dated 11 August 2010 acknowledges limitations in the surveys undertaken. I accept the evidence of Ms Hayes that there is uncertainty as to the potential indirect effects of permanent occupation of the site. 38The ameliorative measures proposed by the applicant are those in the Bushfire Preparedness and Environmental Management Plan, and proposed conditions (exhibit N) which include requirements for environmental management during the construction phase and ongoing maintenance and use of the development, to be incorporated into the Bushfire Preparedness and Environmental Management Plan in a section "Environmental Management of Development". The proposed ameliorative measures considered by DECC in the letter dated 22 September 2010 did not include the requirements for environmental management now proposed in the draft conditions to be incorporated into the Bushfire Preparedness and Environmental Management Plan in a section "Environmental Management of Development". Those additional measures go some way towards meeting the concerns raised by DECC. 39Ameliorative measures must be practical, enforceable and effective: Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NWLEC 38; Speleological Society at [117]. In Ms Hayes' opinion, a conservation PVP is required to provide a suitable mechanism to manage the habitat and maintain security for the EEC. Mr Smithers was of the opinion that restrictions on clearing, damaging grazing and other landuses arising from the NV Act and the applicable planning instruments already provide protection, and that conditions of consent are the appropriate mechanism to limit the potential for adverse impacts. 40It was common ground that there are restrictions imposed on clearing under the NV Act, including those permitting, and limiting, RAMAs. The LEP imposes a requirement to obtain development consent for "land clearing", which is defined to mean "the destruction or removal of any native plant other than a noxious weed", however it is by no means certain that future environmental planning instruments that apply to the site would maintain that requirement. While acknowledging those restrictions, in the face of the limitations on the environmental assessment surveys, and the uncertainty as to potential indirect effects of permanent occupation of the site, I am unable to conclude that the likely effect of the proposed development is not likely to be significant. I accept the evidence of Ms Hayes, which is supported by DECC, that with appropriate ameliorative measures the uncertainty as to indirect impacts could be reduced so that it could be concluded that there is not likely to be a significant effect on threatened species, populations or the EEC. It is for the applicant to decide whether to prepare a SIS, or to amend the application to include additional ameliorative measures. Ameliorative measures cannot be imposed after determination of the development application in the form of conditions of consent: Speleogical Society at [83]. 41The Council's proposed Management Action Plan includes a prohibition on grazing livestock, and restrictions on the carrying out of RAMAs, in zone B. In my view, ameliorative measures proposed by the applicant which would take the form of conditions of consent would have to be measures that address the likely impacts of the proposed development, which is for a dwelling house, and not those applicable to the existing permissible agricultural use of the land which is subject to the constraints of the NV Act. The Council proposes a deferred commencement condition requiring the applicant to prepare a vegetation management plan to be registered against the title to the property, with details of the proposed method to secure the conservation and management of the EEC in perpetuity, to be by way of a Conservation Property Vegetation Plan, a BioBanking Statement, or a Natural Resource Management/Biodiversity Agreement. I agree with the Council that some mechanism that commits current and future occupants of the site to compliance with the bushfire and environmental management requirements, and alerts prospective purchasers of the property to their existence, would be appropriate. I agree with the applicant that the provisions in Part 4 of the NV Act limiting the duration of a Property Vegetation Plan and the specification in s28 of the NV Act as to its content may not necessarily make it appropriate to the proposed development. However, the manner in which any additional ameliorative measures could be secured, as recommended by DECC, would be a matter for the applicant to consider. 42The Council's position was that if I were to conclude that a SIS is required or that the applicant should be given an opportunity to negotiate a vegetation management plan with the Council and the Catchment Management Authority, the proceedings should be adjourned to allow that to take place. I propose to allow the applicant time to consider whether to prepare a SIS, or amend the development application, or have the matter determined on the basis of the development application as it now stands.

Access to the site 43The Council contends that the proposed access to the site is inadequate, and that a condition should be imposed requiring the applicant to construct a sealed Basic Right Turn Treatment (BAR) treatment for vehicles travelling south along George Bass Drive. 44Mr McLaren and Mr Sharpe agreed that that there are currently 3,000 vehicles on George Bass Drive per day which on the traffic engineer rule of thumb equates to 300 vehicles per hour in peak commuter periods. Mr Sharpe was of the opinion that traffic volume would increase as further development occurs in nearby towns, and that by 2030 there would be 5,800 vehicles per day and 9,700 vehicles per day in the peak week. The experts disagreed as to whether George Bass Drive was classified at a collector road traffic flow level. The experts did not agree on the number of vehicle movements per day likely to be generated by the proposed development. Mr McLaren was of the opinion that rural residential properties generate in the order of six daily traffic movements, while Mr Sharpe was of the opinion that isolated rural properties in close proximity to villages often generate up to 10 vehicle movements per day. Mr McLaren estimated that there would be one vehicle movement per hour at peak times. Whether the total daily vehicle movements would be in the order of six or 10, the evidence of both experts on the application of the RTA Warrant Chart for Auxiliary Lanes (Rural Environment) (exhibit M) was based on the estimate of one vehicle movement per hour at peak times. The experts agreed that the sight lines at the proposed driveway location, at 300m, exceed the minimum distance of 200m required under the applicable Australian Standard. In their joint report the experts agreed that that the applicant proposes a satisfactory treatment for left turn entering, left turn exiting and right turn exiting traffic, being a Basic Left Turn Treatment (BAL); in his oral evidence Mr Sharpe expressed the opinion that the BAL should be sealed. 45The experts disagreed as to whether a BAR was necessary. Mr Sharpe was of the opinion that it is: the dwelling house is set back from the road so there is no significant physical presence and thus a low expectation of a driveway and turning movements; safety would be enhanced; provision of a BAR would be easily achieved as there is already a partially sealed shoulder and gravel there; and traffic along George Bass Drive will increase over time. Mr McLaren considered that a BAR was not necessary: it is a single dwelling; it should be assumed that drivers will obey the law and maintain appropriate separation distances from other vehicles; the standards are based on a 4 second gap between vehicles, and assuming a 50/50 or 60/40 split of vehicles at 300 vehicles an hour there would be a gap of 24 seconds. 46Both experts relied on the RTA Road Design Guide. At part 4.9.4 Rural Property Access the Guide states: On rural roads, although there are low turning traffic volumes to and from widely spaces access points, high speed accidents occur due to low driver expectation of turning vehicles. Treatment of access to rural properties is dependant upon several criteria including through traffic volumes, turning volume and vehicle type, single or divided carriageway, land use and general topography. 47The experts agreed that based on the forecast peak hour entry generation associated with the driveway and opposing traffic volume the RTA Warrant for Rural Turn Lanes in fig 4.5.12 in the Road Design Guide indicates that a BA treatment is required. The evidence of Mr McLaren was that application of this to a private single residential driveway is contrary to the intent of the guideline and would only be warranted for access driveway locations that have adverse or poor sight distances. Mr Sharpe relied on part 4.8.5.1 of the Road Design Guide which states that a BAR is "the minimum treatment for right turn movements from a through road to side roads and local access points". 48It was common ground that at the proposed driveway entry point the road is straight and level with no crests or bends within 300m on either approach. Both experts have significant expertise, Mr McLaren being an RTA accredited Level 3 Road Safety Auditor and Mr Sharpe being an experienced engineer who as Director Roads and Recreation has experience in safety issues. Both sought advice from various officers of the RTA in the course of preparing their expert reports. 49The experts disagreed as to how to classify George Bass Drive. Mr McLaren relied on the RTA road hierarchy which based on daily traffic flows classifies George Bass Drive in a functional sense as collector. Mr Sharper relied on the proposal to amend the Council's Parking and Access Code to show it as a Regional Road, rather than a Distributor Road, and was of the opinion that traffic volume is only one of the criteria used to determine a roads functional classification: and in any event, the NSW government has identified George Bass Drive as having regional significance by classifying it as a Regional Road under the Block Grant Arrangement. 50The significance of classification of George Bass Drive lies in part in the Council's submission that cl24 of the LEP applies as the proposed development relies on a major road for sole direct means of access. The LEP defines "major road" to mean "any main road or arterial road or any other road which in the opinion of the Council carries or is likely to carry a significant volume of vehicular traffic". Clause 24(3)(c) of the LEP provides that consent must not be granted to development unless the consent authority is satisfied that "the location, standard and design of access points, and on-site arrangements for vehicle movement and parking, ensure that through traffic movements on the major road are not impeded". The Council submits that without a BAR treatment access to the site will impede through traffic on George Bass Drive giving rise to an unsafe situation, with vehicles stopping to turn right into the access to the site or school buses stopping on George Bass Drive to drop off or pick up school children. I agree with the Council that it would not be relevant whether the applicant is likely to have school aged children needing to be dropped off or picked up by bus, as the consent runs with the land. However, the Council's Guidelines for Rural School Bus Routes and Bus Stops (exhibit 11) provide (at 1.3.2) that stopping at unapproved locations is a breach of bus operator conditions, and approval of a new rural bus stop would require approval of the local road authority. Further, Mr McLaren's evidence, which was not contradicted on this point, was that a bus has an operating width of 2.7m, and so the BAR as required by the Council would not provide a safe bus stop. 51In considering whether the condition sought by the Council "relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent" as required by s80A(1)(a) of the Act, I am not persuaded that the proposed development of a single dwelling, to be accessed from a road that on the expert evidence exceeds the sight distances required by the applicable standards and provides 300m visibility on a straight flat road, would generate the need for a BAR. If traffic volumes increase as Mr Sharpe predicted, adjustments could be made, as suggested by Mr McLaren, to the speed limit. Even accepting Mr Sharpe's evidence that the construction of a BAR would be relatively straightforward, I am not persuaded that that would be a matter to be taken into account in deciding whether s80A(1)(a) is satisfied: the issue is whether the proposed development generates the need to address vehicle movements along George Bass Drive, as identified in cl24(3)(c), or safety more generally as a matter for consideration under s79C(1)(b) and (e). The RTA Road Design Guide is, as acknowledged by both experts, a guide. While the Guide indicates, based on vehicle movements, that a BAR is required, I agree with Mr McLaren that a consideration of all relevant issues including topography and turning volume, as required at part 4.9.4, leads to the conclusion that a BAR is not required to ensure safety for vehicles accessing the site and other road users. 52Accordingly, I am not satisfied that condition 15 as proposed by the Council should be imposed on any development consent. The experts in their joint report agreed that the applicant's proposed left turn treatment was satisfactory. During oral evidence Mr Sharpe stated that he would prefer that it be sealed, in order to reduce wear. Given the original agreement of the experts during the joint conferencing process, it would be appropriate to impose a condition referencing the requirements of the RTA Road Design Guide Figure 4.8.34. 53The parties indicated at the hearing that other conditions in dispute, including the Council's proposed conditions 4, 5 and 8, could be the subject of further discussion between the parties.

Elzerman v Eurobodalla Shire Council

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Judgment (7 paragraphs)

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Cases Cited (5)

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