Formston v Pittwater Council

Formston v Pittwater Council - [2004] NSWLEC 50 - NSWLEC 2003 case summary — Zoe

[56]

Three copies of a detailed Bushland Management Plan covering weed removal, regeneration, revegetation, restoration of the site and on going maintenance, as well as the appropriate management of the vulnerable Red-Crowned Toadlet and the Lilli Pilly habitat, are to be submitted prior to the release of the Construction Certificate for the approval of Council's Natural Resources Unit. The Bushland Management Plan is to be accompanied by a certification by an appropriately qualified Bushland Management Consultant stating that the Bushland Management Plan is consistent with the Department of Infrastructure Planning and Natural Resources' Bushland Management Guidelines, Council's Landscape Management Strategy DCP 23, Council's Biodiversity DCP 25, the Management Plan for Threatened Flora and Fauna in Pittwater, the Bushland Management Concept Plan, the Threatened Species Conservation Act 1995 (NSW). In particular, the following matters are to be provided: (1) Define each project task to be undertaken during regeneration/ revegetation/ restoration; how each task will be done; the duration of each task; the priority order for each task; and who will be responsible for undertaking each task. (2) Prepare a timeframe for all tasks involved. (3) Local native species to be used - identify local native plant stock source. (4) Prepare maps/ diagrams and plant species lists including existing vegetation, site constraints and trees, vegetation, habitat, bush rock and other natural features to be retained and the location of underground/overhead services (5) Prepare maps/ diagrams including proposed vegetation (species/ communities), density of planting, size of plants (virocells, longstems, tubestock, etc), sediment and erosion control to protect the vegetation, etc. (6) Prepare maps/ diagrams including retained bushland, fire protection zone, , or corridors/ linkages, etc. (7) Specify techniques to be used for domestic animals (including dogs and cats) and feral animal management. (8) Specify fire prescriptions that will be applied to maintain the ecology of the site. (9) Detail site preparation, including: a. Measures to ensure protection of trees, vegetation, habitat, bush rock or other natural features to be retained b. Installation of sediment and erosion control devices c. Measures to ensure completion of any site works (if any) d. Weed control prior to site disturbance (techniques and sequences of removal) e. Weed control immediately following completion of site works (techniques and sequences of removal) f. Application of herbicides (if any) prior to site disturbance g. Application of herbicides (if any) immediately following completion of site works h Soil remediation i. Surface preparation (including levelling, deep ripping, scarifying, mulching) j. Surface stabilisation (must be suitable for the site vegetation) - matters including erosion matting, mulch, brush matting, sterile cover crops, binding sprays k. Site drainage. (10) Planting program and method including installation of weed matting, mulch, stakes and ties, tree guards, use of fertiliser and type (including justification of use of fertiliser). (11) Site and vegetation maintenance including sediment and erosion control, watering, replacement of plant losses, disease and insect control, mulch, maintenance for a period of 2 years commencing at registration of the subdivision. (12) Site management to prevent the placement of soil or storage of any materials in the drip line of trees or native vegetation or habitat to be retained on the site. (13) Monitoring and review (develop method for performance evaluation, replacement of plant losses maintenance and other relevant matters). (14) Other issues including public safety, signage, relevant legislation, planning instruments/ guidelines, and OH&S (15) Detail the enhancement and regeneration of retained remnants. Where thickets of noxious or environmental weeds are to be removed, such removal is to be gradual and staged to prevent a sudden complete loss of habitat. (16) Identification of protection of trees, vegetation, habitat, bush rock or other natural features, prior to works commencing on the site to prevent damage or injury during development. (17) Materials, stockpiles and vehicle stockpile areas are to be located on already cleared and disturbed land well away from creek line, trees, vegetation, habitat, bush rock or other natural features. (18) Feasible mechanisms to ensure the retention of bushland as stated and assessed. This may involve annual monitoring, a bond and inclusion of Bushland Management Plans in the 149 certificate of the title of the properties. (19) The retention of fern undergrowth, logs, leaf litter, surface rocks, potential breeding habitat and retention of natural water flows in the location of the habitat area shown in red on Map 1 (Plan No 112:01 DA01 Rev E by Nicholas and Associates as modified by Mr Skelton and Mr Conacher). There must also be no disturbance due to paths, landscaping, earthworks, or connection of utilities in this area. (20) Details of a detailed search for Red-Crowned Toadlets, fencing during construction, instructions to site contractors to prevent disturbance, site attendance by an ecologist to relocate any Toadlets that may be found during excavation for the inclinator, monitoring and any other measures necessary. Requirements for bushfire hazard protection are not to take precedence in this area. 7A. The approved Bushland Management Plan shall be complied with. A requirement to adhere to the Bushland Management Plan is to be added to the section 149 certificate and/or section 88B instrument on the title of the property known as No 33 Bakers Road and is to apply to future Development Applications made in respect of this Lot.

[72]

16A. Three sets of detailed landscape working drawings, which comply in all respects with the conditions of development consent, are to be submitted prior to release of the Construction Certificate. Each plan/sheet is to be certified by a qualified landscape architect, landscape designer/environmental designer or horticulturist, confirming that the plans/details provide for the works to be carried out in accordance with the relevant provisions of Development Control Plan No 23 - Landscape and Vegetation Management. In particular, the landscape working drawing is to provide full details of the following: (1) the usage of the dominant tree species growing in the area or locally indigenous species; (2) all existing trees and vegetation to be retained, removed and proposed, including canopy spread, trunk location and condition; (3) a plant schedule including stratum, species/common names, species' numbers, pot size and staking details; (4) a schedule of materials (including such elements as, edging, walling, paving and fencing); (5) the proposed finished treatment of landscaped areas, including soil depth and mulching details; (6) the location of underground/overhead services; (7) details of irrigation and any on-slab planting; (8) details of any automatic watering systems; (9) timber paling fencing having a height of 1.8 metres is to be provided with 100mm high and 300mm holes every 10 metres, so as to address issues of privacy between the common garage parking court and No.35 Bakers Road and fauna access; (10) timber paling fencing is to be provided above the concrete block wall having a total height of 1.5 metres, so as to address issues of visual privacy between the common garage parking court and No.29 Bakers Road; (11) suitable view screen planting along the inclinator corridor, which meets the bushfire hazard reduction conditions in this consent, so as to afford a sufficient level of visual privacy to the dwelling to screen the inclinator from over-viewing No.35 Bakers Road; (12) at least four (4) canopy trees within the front yard of No.29 Bakers Road, which at maturity achieve a canopy height greater than 8.5 metres, to visually reduce the height, bulk and scale of development on lots in the subdivision and to reinforce the Pittwater Spotted Gum Forest Community canopy in the locality; (13) understorey planting of species growing in the area or locally indigenous species, which, after three years will in conjunction with the canopy planting screen 50% of the habitable floor areas of the northern elevation of Nos. 29 and 29A Bakers Road, and vegetation to be retained, removed and proposed, including canopy spread, trunk location and condition. (14) The development is to be phased so that the land disturbance is confined to areas of workable size. Further, stabilisation measures are to be finalised in the first section, before works commence in the next section. Further, all disturbed areas which would otherwise remain exposed for 30 days or more are to be treated with an organic mulch or, on steep sites, an erosion control mat and nylon netting. Three sets of full details in this regard are to be included in the Construction Certificate details. 16 The Landscape Rehabilitation Plan for the Northern Area of No 29, referred to in the Revised Landscape Concept Plan dated October 2003, Dwg No 0201 - 1A, prepared by William Ashton, Landscape Architect., must be submitted and approved by Council.

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In particular, the following matters are to be certified as being completed in accordance with the Bushland Management Plan/ Strategy approved prior to Construction Certificate: (1) A preorder or evidence of supply of local native plant material to be used identifying local native plant stock source is to be submitted to Council or the accredited certifier. Failure to submit will involve breach of this consent / approval. (2) A qualified ecologist is to certify that protective fencing has been installed around the trees, vegetation, habitat, bush rock or other natural features to be retained. (3) The Site Manager is to certify that sediment and erosion control devices have been installed. (4) A qualified experienced bushland management consultant is to certify that the weed control required prior to disturbance of the site has been completed in accordance with the techniques and sequences of removal weed control in the BMP. (5) A qualified experienced bushland management consultant is to certify that application of herbicides required prior to disturbance of the site has been completed. (6) The Site Manager is to certify that the top soil/ litter layer storage has been completed. (7) The Site Manager is to certify that the soil remediation has been completed. (8) The Site Manager is to certify that the surface preparation has been completed. (9) A qualified experienced bushland management consultant is to certify that surface stabilisation suitable for the site vegetation has been completed. (10) A qualified experienced bushland management consultant is to certify that site drainage has been completed. (11) The Site Manager is to certify that no soil or storage of any materials has been placed in the drip line of trees or native vegetation or habitat to be retained on the site. (12) The Project Manager is to certify that other issues including public safety, signage, relevant legislation, planning instruments/ guidelines, and OH&S requirements have been addressed. (13) A qualified experienced bushland management consultant is to certify that the thickets of noxious or environmental weeds have been removed gradually and staged to prevent a sudden complete loss of habitat. (14) The Site Manager is to certify that materials, stockpiles and vehicle stockpile areas are located on already cleared and disturbed land well away from creek line, trees, vegetation, habitat, bush rock or other natural features.

Parties

Applicant/Plaintiff:

Formston

Respondent/Defendant:

Pittwater Council

Legislation Cited (1)

Management Plan for Threatened Flora and Fauna in Pittwater, the Bushland Management Concept Plan, the Threatened Species Conservation Act 1995(NSW)

Cases Cited (4)

CITATION : Formston v Pittwater Council [2004] NSWLEC 50 APPLICANTS Katie Formston, Helen Kaminski, John MacRae and Pat MacRae PARTIES : RESPONDENT Pittwater Council

The Bushland Management Concept Plan meets the requirements of Council's DCP23, DCP25 and LP15. (Note: the Landscape Concept Plan and Site Analysis Plan and the Landscape Strategy Report are not included as they are not part of the Applicant's expert's reports) Applicants' expert agrees. Council's expert disagrees. 84 . In determining whether the proposed development is likely to significantly affect threatened species, populations or ecological communities, the consent authority may take into account the ameliorative measures that are proposed or required as part of the development. In Smyth v Nambucca Shire Council [1999] NSWLEC 226, 105 LGERA 65 at 69, Lloyd J said: That this must be so is clear from the reference to whether it is the "development" which is likely to significantly affect threatened species, populations or ecological communities, or their habitats. It is not a question of whether the land contains threatened species, populations or ecological communities, or their habitats. The only reference to the land [in s 78A(8)(b)] is whether the land is, or is part of, critical habitat… The focus of the provisions is on the development, which necessarily includes any ameliorative measures which are proposed as part of such development. 85 . The main issue between the experts concerned item 12 in the above joint statement. In his investigations, Mr Conacher did not find any Red-crowned Toadlet on the subject land. However, in the week before the commencement of the hearing, Mr Skelton heard the call of a Red-crowned Toadlet. On behalf of the applicants Mr Leggat stated that the applicants accepted the veracity of Mr Skelton and were prepared to accept conditions which would protect the possible habitat of the Toadlet. See draft conditions 6(19) and (20) and 7B in annexure A hereto. In accordance with one of the conditions, any future house on No 33 would have to be erected to the north-west of tree numbered 35 and 36. Having regard to these conditions it was agreed that a species impact statement would not be necessary in respect of the Red-crowned Toadlet.

98 . A council can be liable in negligence or nuisance for damage occurring from increased run-off from development that it has carried out or approved: cf. Rudd v Hornsby Shire Council (1972) 31 LGRA 120; Ku-ring-gai Municipal Council v Bonnici [2002] NSWCA 313; Alamdo Holdings Pty Ltd v Bankstown City Council [2003] NSWSC 1074. A council is not necessarily relieved from an action in negligence because it has relied on a certificate or report from a consultant, if the council using reasonable care should have been aware that the particular certificate or report was inadequate.

[2003] NSWSC 1074

At a glance

Court

Decision date

Before

Source

Judgment (169 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)