Hanson South Coast Pty Limited v Eurobodalla Shire Council

DATES OF HEARING: 12/12/2006, 13/12/2006, 14/12/2006 and 26/04/2007

APPLICANT Mr P. Rigg, solicitor of Deacons LEGAL REPRESENTATIVES:

RESPONDENT Mr A. McKelvey, solicitor of Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10585 of 2006 Hanson South Coast Pty Limited v Eurobodalla Shire Council

JUDGMENT 1 This judgment is for an appeal under s. 97 of the Environmental Planning and Assessment Act 1979 ("the Act") against Eurobodalla Shire Council's refusal of a development application for a 16 Lot subdivision at Long Beach north of Bateman's Bay.

2 The subject site is Lot 16 and 17 in D.P. 731810 with a total site area of 26.23 ha. The topography of the land consists of an east west ridgeline with relatively steep slopes. To the west of the site is Sea Acres Drive and to the east of the site the land is adjoined by relatively low-lying land that contains wetlands designated under State Environmental Planning Policy No. 14.

3 The site is generally vegetated although cleared near the ridge from the previous use as a gravel pit. The land is identified as bush fire prone land on mapping by the NSW Rural Fire Services under cl 146 of the Act. There are no structures on the land, however the overburden paths from the disused gravel pit are up to 4 m high and 5 m wide. 4 Development in the vicinity of the land to the north and west can be described as rural residential ranging in size from approximately 800 sq m to much larger holdings of 10 and more hectares. To the south of the subject site the land is zoned residential/tourism and is separated by Cullendulla Drive. Figure 1 shows the subject site in the context of the surrounding area and the zones. Statutory planning framework 5 The land is zoned 1(c) (Rural smallholdings) under the Eurobodalla Rural Local Environmental Plan 1987 ("ERLP 1987"). The overall aim of this Plan is to further the objects of the Act and the specific aims include to encourage the promotion and coordination of the orderly and economic use and development of land and the protection of the environment.

6 Clause 3 sets out the objectives and these include to identify zones with particular classes of development most likely to be appropriate, having regard to the environmental characteristics of the area, servicing and access requirements and constraints, and the characteristics of the development.

7 The particular objectives in relation to environmental protection include: i. To protect coastal areas, estuaries, wetlands, rainforests and other environmentally sensitive areas from the effects of inappropriate use or developments ii. To promote the retention of trees and tree cover and to conserve as far as practicable the existing pattern of vegetation to maintain landscape quality and remaining natural ecosystems. …. viii. To ensure that development or activity in one zone does not adversely affect environmentally sensitive land in adjacent zones. 8 The particular objectives in relation to housing include: a. To encourage a range of housing opportunities to meet the needs of the community for a choice of dwelling size, type, tenure, cost and location… 9 The objectives of the 1c zone are: a. To provide opportunities for small scale agricultural activity; b. To provide residential opportunities while retaining the scenic quality and overall character of the land and the environmental quality of any adjoining waterways, wetlands, rainforest or other environmentally sensitive areas; c. To ensure that environmental impacts of development and the impact of development on land or activity in surrounding zones are fully considered in advance of any significant development; d. … 10 Clause 11(3) requires that consent shall not be granted to development unless it is consistent with the objectives of the zone in which the development is proposed to be carried out. Development that is permissible without consent includes agriculture and forestry. Uses that require development consent include any use not prohibited and prohibited uses include boarding houses; commercial premises; industries; residential flat buildings; and tourist accomodation.

11 Clause 17 relates to the subdivision of land within zone 1c and reads as follows: (1) This clause applies to land within Zone No 1 (c). (2) Before determining a development application for the subdivision of land to which this clause applies, the Council shall examine: (a) the consequences of carrying out that development on the pattern of land use within the zone, (b) the topography of the land with regard to: (i) the siting of dwelling-houses, and (ii) the relationship of those dwelling-houses to one another and the topography of the land, (c) the risk of bushfires, (d) the risk of flooding, and (e) the likely impact of the proposed development on any wetland, waterway, forest or significant natural or cultural environmental feature or values. (3) The Council shall not consent to the subdivision of land to which this clause applies unless it is satisfied that each lot to be created by the subdivision will have an adequate area, having regard to: (a) the means available to provide water reticulation, and if unavailable, the capacity of the land to provide an adequate domestic water supply, including a firefighting capacity, (b) the ability of the land to accommodate septic disposal of household waste, (c) the standard and capacity of public roads serving the land relative to the likely volume of traffic to be generated as a consequence of development within the subdivision, and the means available to improve rows to a standard appropriate to the level of traffic likely to be generated, (d) the availability of other utility services and social services relative to the likely demand for those services and the cost of their provision, (e) the nature and topography of the land as related to the density of subdivision, (f) the desirability of maintaining a low density of development in the primary catchments of wetlands or other areas where intensive subdivision may create a significant risk of soil erosion or pollution of the environment, (g) the desirability of providing a range and mix of allotment sizes, (h) the need to maintain a semi-rural character in the area, (i) the purpose for which the land is proposed to be used after subdivision, and (j) any other matter identified by the Council consistent with the objectives of this plan. 12 Another relevant document for assessment is Development Control Plan No. 156 ("DCP") Rural Subdivision, that was adopted by Council in 1987. This DCP refers to: a. For areas where specific constraints maps are yet to be determined, Lots created should have an average area of 2 ha or more in order to maintain the "semi rural' character of land zoned rural small holdings. b. The average Lot size principle is used to protect environmentally sensitive areas from the effects of development without unduly restricting the overall development potential of the land. 13 The Plan sets out requirements for a development envelope which requires an area within a lot that has adequate access, is capable of accommodating a dwelling house, vehicle standing area, garage and onsite-effluent disposal area, plus an allowance for dual occupancy (or an oversized dwelling) and for additional sceptic absorption area. The requirements are set out in the DCP as follows: a. Be not less than 600 sq m in area, b. Contain land with a natural slope of 15 percent or less, c. Be located in accordance with all constraints identified, and d. Be capable of providing for setbacks. Note, generally no development or land clearing should occur on slopes equal to or greater than 25 percent. 14 Development Control Plan No. 164 for the Long Beach Sea Acres Estate is a more specific DCP that applies to the subject land and was adopted by the Council in 1988. Clause 10.2 refers to residential density and lot performance standards including relevantly: where there is no reticulated water no lot shall be less than 1 ha in area; a 600 sq m development envelope where the natural slope is 15 percent or less; where the slope is greater, then applicants should consult with the Soil Conservation Service. The DCP also states that a geotechnical report may be required in circumstances where insufficient evidence of stability of land for development is available. Each development envelope shall contain a site suitable for onsite effluent disposal and set back sufficiently from adjoining land and drainage gullies to ensure that no pollution of adjoining land or water occurs. 15 The DCP also sets out setback requirements for dwelling houses. That is, a 12 m setback from a nominated road frontage or any boundary. The DCP states that activities involving land clearing require the consent of Council and trees shall not be removed with a slope greater than 25 percent except when necessary for access to a dwelling and trees shall generally be retained on ridge tops. The DCP also sets out requirements for fire management.

16 The subject site adjoins a designated wetland No. 217 under State Environmental Planning Policy No. 14.

Issues 17 The Respondent provided a Statement of Issues that became exhibit 8 and it is summarised as as follows: The proposal is inconsistent with the objectives of the 1(c) Rural Small Holdings zone under the ERLP because: i. It does not retain the environmental quality of adjacent wetlands and environmentally sensitive lands, and ii. It does not retain the scenic quality of the land because the proposed development is located on a ridgeline which will be visually prominent from the public road. Clearing associated with development will result in the denuding of the ridgeline diminishing the scenic quality of the land. The site is unsuitable for the proposed development because the topography must be considered before determining a development application for the subdivision of land and the topography will not support the scale of the proposed development because of steep slopes and natural drainage. Council also contends that the site is unsuitable because it will require clearing for bush fire protection, road construction and dwellings on slopes greater than the requirements of DCP No.156 and DCP No.164 and the slopes are classified as having no development capability. The proposed developments will require clearing on slopes greater than 25 percent which is contrary to DCP No. 164. Similarly Council contends that the slope for the dwelling houses is greater than 15 percent and the Applicant has not addressed the necessary criteria. The Council also contends that the proposed development is located on a ridgeline which will be visually prominent and clearing associated with the development will result in the denuding of the ridgeline. The applicant has not demonstrated that for each proposed Lot in terms of cl 17(3)(b) of the LEP that each lot will have the capacity to accommodate on site disposal of household. Effluent. The Applicant has not demonstrated that the density of the proposed development will not pose a significant risk of soil erosion and pollution in the catchment of the wetland in accordance with cl 17(3)(f) of the LEP. The Applicant has not addressed how the existing gravel pit will be rehabilitated. Bushfire Whether the proposed development contains adequate provisions for the management of bush fire risk and whether each Lot has adequate area having regard to the topography and the need for bushfire protection. Given the land is identified as bush fire prone (cl 17(2)(c) and 17(3)(f) and (j). The proposed development does not satisfy the planning for bush fire protection manual. Ecology The Applicant has not demonstrated that there will not be an unsatisfactory impact on the adjacent wetlands inluding erosion, sediment impacts, and other biodiversity impacts such as weed infestations, nutrient loads and pollution threats. The proposed development will have an unsatisfactory impact on native flora and fauna in that the proposed development will impact on wildlife corridors and the area is identified as vulnerable ecosystems of Eurobodalla Shire. The Council contends that the flora and fauna report recommends retention of vegetated wildlife corridors, however, clearing is required for asset protection zones for bush fire prevention. The Applicant has not demonstrated the development will not have a detrimental impact on the Yellow Bellied Glider and the hollow bearing trees have not been adequately identified. Issues raised by objectors 18 The Issues raised by the council fall into four broad categories: planning; bushfire; ecology/ threatened species and wetlands; and stormwater/effluent disposal. Evidence and assessment 19 The Court met onsite on the first day of the hearing and together with the parties took an extensive walk of the subject site. The Court Appointed Experts onsite included: Mr Rod Wiese, a Consultant Environmental Engineer; appointed to address erosion and sediment control and onsite waste disposal issues; Mr Steven House, consultant for bushfire issues being a specialist in environmental assessment and management together with an understanding of bushfire legislation and planning policy, and knowledge of the interaction between fire and ecological values; Dr David Robertson is the consultant ecologist; and Ms. Bronwin Seiden, the consultant planner.

20 When the Court met onsite I heard evidence from a number of resident objectors including; Ms Rena Hill of the Long Beach Area Improvement Group. She expressed concerns about the impact of the proposed development, in particular the extensive clearing of the ridges and the need for clearing for bushfire protection. She also expressed concern about the severe slope of the land as a constraint to development and the issue of erosion and sedimentation.

21 Mr Mark Fleming, a member of Coast Watchers for some 25 years, stated that from a strategic planning perspective the zoning is incompatible with the current thinking because the LEP was made in the 1980s to zone the land 1(c) and in his opinion development should not be allowed at the cost to the environment. In his opinion the land is important for a threatened species corridor and biodiversity and scenic amenity. 22 A joint report was prepared by the bushfire experts Mr Rod Rose for the Applicant, Mr Terence O'Toole is the Development Control Officer with the NSW Rural Fire Services, and Mr Steven House the Court Appointed Expert. This joint report addressed the issues raised in the Statement of Issues and is as follows: 1. Agreed. Bushfire matters do not preclude development within this zoning. 2. Agreed. Bushfires have been examined by Council. 3. Agreed. Land is recorded as bushfire prone land. 4. All parties agree that the bushfire protection measures are contained within the development site. No burden is placed on neighbouring landholders. 5. Agreed that dead-end cul-de-sac is greater than 200m in length. However, we also agree that the RFS General Terms of Approval (GTA) of the Bushfire Safety Authority (7th December 2006) provides efficient bushfire protection measures to mitigate the length of the cul-de-sac. 6. Agreed the proposal does involve the removal of some vegetation on slopes greater than 18 degrees. However, we also agree that the concerns listed within PBP 2001 can be overcome. This can be achieved through the Asset Protection Zone as an Inner Protection Area. 7. In addition to the Statement of Issues it was also agreed that: i. The RFS GTA's of 7th December 2006 should form the basis of any conditions of consent with the exclusion of Condition No. 7 which all parties agree should be considered at the construction development application stage (s. 7 BA of the Environmental Planning and Assessment Act ). ii. All parties agree that the perimeter trail is not required. iii. All parties agree that a bushfire and environmental management plan is prepared for the site. Our preferred approach is for a single plan that applies to the entire site and is managed by a single entity. All parties recognise that it may only be practical to prepare a separate management plan for each lot. 23 Dr Robertson in his written report described the ecological context of the subject site. He notes that the total area of the land is 26.23 ha and 15 ha is proposed to be in a conservation area, that is 59%. In the asset protection area there is 8 ha, that is some 34%, and for the road and the building envelope some 2 ha which is 7.6% of the total area of the site. The lot sizes vary with Lots 1 to 11 and 15 to 16 from 1 to 1.3 ha in size and Lots 12 to 14 ranging from 2 to 3.8 ha.

24 Dr Robertson notes in his report that the site is largely forested by native coastal forest though in part it has been cleared for quarrying along part of the ridgeline. It is clear that the forest on the site has been subjected to previous clearing. While large trees are present on the site including large trees with hollows, a high proportion of the trees on the site, including many areas along the ridgeline where the development is proposed, is comprised of relatively young trees that are too young to form hollows.

25 Dr. Robertson identifies a number of vegetation communities found on the subject site and these are as follows:

Vegetation According to Gunninah (2002a) the vegetation of the subject site is predominantly forest and open forest comprising three broad vegetation communities. Additional vegetation communities occur in association with SEPP 14 wetland No 217. These are briefly described below: Spotted Gum/Red Bloodwood Open Forest This community has upper canopy species that include Blackbutt, White Stringybark, Spotted Gum and Red Bloodwood, with the occasional Narrow-leaved Peppermint on the ridges and upper slopes. The community occurs extensively on the upper and mid slopes throughout the central and western parts of the survey area and occurs widely within the area proposed for development. This plant community type does not correspond with any endangered ecological community that is listed by either the NSW Threatened Species Conservation Act 1995 (TSC Act) or the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Spotted Gum/Blackbutt Open Forest/Forest Commonly occurring upper canopy species include Blackbutt, White Stringybark and Spotted Gum with occasional Red Bloodwood and Narrow-leaved Peppermint on ridges and upper slopes. Grey Ironbark and Spotted Gum occur at lower elevations. This forest type occurs along minor creek lines and narrow gullies in the central and western parts of the survey area. The uppermost occurrences of this forest type will be within Asset Protection Zones (APZs) of the proposed development. This plant community type does not correspond with any endangered ecological community that is listed by either the NSW TSC Act or the Commonwealth EPBC Act. Sydney Blue Gum/Spotted Gum Open Forest-Tall Open Forest/Gallery Rain forest This forest occurs along the major creek lines in the northern and southern parts of the site and contains elements of both sub-tropical and warm temperate rainforest (Gunninah 2002). Upper canopy species include Sydney Blue Gum, Blackbutt, White Stringybark and Spotted Gum. Typical midcanopy species are Bastard Rosewood, Brush Muttonwood, Lillypilly, Scrub Turpentine, Sandpaper Fig, Cabbage Palm, Bolwarray and Hairy Psychotria. This plant community type appears to correspond with River Flat Eucalypt Forest, an endangered ecological community that is listed by the NSW TSC Act. River Flat Eucalypt Forest is the name given to a wide ranging and broad forest type that occurs on river flats and along creek lines south from the Hunter River to the Victorian border. This vegetation type occurs in the area proposed as conservation area, and will not be subject to development. According to the Environmental Management Plan, Yellow­bellied Glider den areas appear to occur in the southernmost occurrence of this forest type. Coastal Swamp Sclerophyll Forest According to vegetation maps supplied by Eurobodalla Shire Council, the vegetation of the SEPP 14 wetlands is Coastal Tall Wet Heath Swamp Forest, and South Coast Swamp Forest. These plant community types appear to correspond with Coastal Swamp Sclerophyll Forest, an endangered ecological community that is listed by the NSW TSC Act. Coastal Swamp Sclerophyll Forest is the name given to a wide ranging and broad forest type that occurs on river flats and along creek lines south in coastal drainages across New South Wales. The vegetation of the SEPP 14 wetlands do not occur on the subject lands and are shown by the Buffer Zones Map 11 (Conway Burrows and Hancock 2005) to be separated from the nearest development area by a 100 metre buffer. Threatened Flora No threatened flora species were found to occur on the subject site and there are no issues raised about threatened flora species in the current Land and Environment Court Appeal. Threatened Fauna Several threatened fauna species are known to occur on the subject land and others are considered likely to make occasional use of the forest of the subject site and surrounds. According to the study by Gunninah (2002a) nineteen native and two introduced mammal species were found on site. These include the Yellow-bellied Glider and two species of bats, The Eastern Freetail Bat and Common Bent-wing Bat, all of which are listed as Vulnerable on the TSC Act. Eight common amphibian species were detected on site in the original fauna surveys by Gunninah (2002a) but no threatened species were found or considered likely to occur. Similarly, only one species of common non-threatened reptile was found on site. However, this is definitely an underestimate as numerous other snakes and lizards are known to occur in the area and many would be found on the habitats of the subject site. With regard to bird species, the Gunninah surveys identified sixty native species and one introduced species. Gunninah (2002a) identified two broad guilds (groups) of native birds, including: * Generally larger and more aggressive wide-ranging birds that utilise the canopy of forests (eg the Gang-Gang Cockatoo, Rainbow Lorikeet, Kookaburra and Pied Currawong); and * Smaller and more cryptic birds which utilise dense shrubs and mid storey vegetation for shelter (eg the Grey Fantail, Eastern Yellow Robin, Lewin's Honeyeater and Brown Thornbill). At the time that the report was prepared, Gunninah (2002a) identified two species of birds on site that were listed as Vulnerable on the TSC Act. These included the Glossy Black Cockatoo and the Olive Whistler. However, since that time, the Gang-Gang Cockatoo has become listed as a Vulnerable species. Additionally, the Masked Owl has been detected using the site in more recent studies by Schofield (2005). Yellow-bellied Glider As the Yellow-bellied Glider occurs on the subject land and is an issue in the proceedings, this section details key features of its ecology and explains its known distribution on site: i. General Ecology The Yellow-bellied Glider typically inhabits tall wet and dry coastal forest where it feeds on eucalypt sap, pollen, nectar and insects (NPWS 2003). Favoured food trees on the NSW South Coast include Spotted Gum, Grey Gum and Red Bloodwood (Gaia 2001; NPWS 2003). This species shelter in "dens", which are large tree hollows. They emerge to feed at night and forage across wide areas, with territories extending from 30 to 65 ha depending upon habitat quality (NPWS 2003). According to the Recovery Plan for the species (NPWS 2003) the Yellow-bellied Glider was listed as a threatened species in NSW for the following reasons: o the population has been severely reduced; o distribution has been reduced; o threatening processes are severe; o the species is an ecological specialist; and o the species has poor recovery potential. The Recovery Plan for the species lists habitat clearance and habitat fragmentation as key threats to the species. It is also of note that the Recovery Plan states the following in relation to urban development: "More localised threats to individual populations include fragmentation of habitat and isolation of populations due to urban development. In NSW this is particularly the case on the central coast and on the south coast, where subdivisions in suitable coastal habitat have the potential to disrupt movement, isolate habitat and remove food resources. " Of particular relevance to this Appeal, the Recovery Plan also notes that protection of Yellow-bellied Glider habitat can provide for the conservation of many other species. Large home ranges required by the glider, a relatively sedentary habit and specialised foraging and denning requirements indicate that the species is sensitive to land use practices and management activities. Consequently, the Recovery Plan suggests that the Yellow-bellied Glider is considered by some ecologists as an umbrella species for effective management of forest-dependent fauna. The Recovery Plan is intended to promote the conservation and increase in numbers of the Yellow-bellied Glider and as such, it lists recommendations for future management of the species. It mentions a series of measures that have been used to protect habitat in NSW State Forest areas and these include: o Riparian buffers ranging from 10-50 metres either side of mapped streams at 1:25,000 scale; o Retention of ridge and headwater habitats; o Retention and protection of hollow bearing trees and recruitment trees; o Retention of winter flowering eucalypts; o Exclusion zones around Yellow-bellied Glider den trees; o Retention of identified sap trees and potential feed trees of the same species; and o Protection of old growth forests.

The Recovery Plan mentions measures on other land tenures aimed at protecting populations of Yellow-bellied Gliders as follows: o Retention of habitat and maintenance of linkages as part of concurrence conditions for a development near Batemans Bay, including preparation of a policy for the conservation of Yellow-bellied Glider by a local council; o Pre-clearing surveys, protection of hollow-bearing trees and provision of artificial hollows and launching poles for Pacific Highway upgrades; and o Preclearing surveys and protection of hollow bearing trees at an open cut mine site and a rock quarry. It is notable that the Council referred to indirectly in the Recovery Plan is Eurobodalla Shire Council and the area of Council land, with a Policy for the Conservation of Yellow­bellied Glider at Broulee (Eurobodalla Shire Council 2002). As suggested by its title, the plan is specific for the Broulee area, but it adopts the majority of mitigation measures mentioned above for the Yellow-bellied Glider. ii. Occurrence On Site According to Gunninah (2002 a and b); Yellow-bellied Gliders were recorded on site from physical recordings (calls and spotlight observations) and also by noting their presence via v-shaped incisions in Red Bloodwood trees. The records were concentrated in the western, central and northern portions of the subject site in Blackbutt/White Stringybark Open Forest. Gunninah (2002b) states that the subject site supports habitat features and resources suitable for use by the Yellow-bellied Glider including large mature hollow trees which are suitable for den use, an array of eucalypts suitable for foraging (including sap trees) and connections to similar habitat resources to the north, south and east of the subject site. However, Gunninah (2002b) also noted that the subject site would not constitute a dedicated home range or territory for an individual or family group - only part of it. Consequently, the study concluded that the connection of the subject site to similarly forested lands to the north, east and south were essential for maintaining habitat for the species in the locality. In their conclusion, Gunninah (2002b) found the following points for the Yellow-bellied Glider: o All identified sap trees will be retained and occur within the outer bushfire protection zone, where under scrubbing is the minimum standard of clearing and canopy trees are maintained where practical; o Yellow-bellied Gliders were observed denning in mature Spotted Gum trees to the south and within the retained vegetation (in the proposed conservation area); o Clearing for development purposes will not isolate nor inhibit the access of Yellow­bellied Gliders to den areas or sap tree resources, as all of these resources are maintained within the nominated habitat linkages, retained vegetation and outer bushfire protection zone; and o The retained vegetation has been configured to provide habitat linkages across the site into this vegetation which also supports hollow bearing tree and sap-tree resources, as well as providing suitable habitat connections to the surrounding naturally vegetated lands to the north, south and east of the subject site. The current Environmental Management Plan by Conway Burrows and Hancock (2005) adopts recommendations from the Gunninah (2002a and b) reports and shows retention of Yellow-bellied Glider den sites within the conservation area, and also two trees that are used for sap feeding within the Asset Protection Zone that will be conserved. Gunninah (2002a and b) concluded that the proposed development would not have a significant deleterious impact upon Yellow-bellied Gliders and so no Species Impact Statement was required. It is noted that the Council have not called for a Species Impact Statement and that there is no issue in the Appeal as to whether a Species Impact Statement is needed. Pages 20 and 21 of the Gunninah (2002a) report lists 15 recommendations for mitigation measures for protection of flora and fauna on site, many of which are relevant to Yellowbellied Gliders. However, one recommendation is for the preparation of a Bushland Management Plan to be prepared for the conservation areas of the site and this has not apparently been prepared as yet. There is also no mapping of individual hollow trees or an indication of where hollow bearing trees within the development areas will be conserved. However, 15 ha of the site will be conserved without any clearing and from these areas include many of the larger trees on the subject site with hollows. 26 Dr Robertson responds to Issue 4, that is the impact of the proposed development on the adjacent wetland, he notes that there is no proposal to clear any portion of the State Environmental Planning Policy No. 14 ("SEPP 14") wetland and so any potential impacts could only arise as indirect impacts from the proposed development. Such an indirect impacts could include altered quantity of runoff, altered quality of runoff, weed invasion, disturbance to adjacent vegetation by the residence of the subdivision, and possibly altered fire regimes. He states: The higher the proportion of vegetation retained… the lower the chances of erosion and sedimentation impacting on the adjacent wetland… The proposal recommends retention of 58.7% of the native vegetation on the site within a conservation area and that the conservation area is proposed on the lower portions of the site, particularly the valleys along the streams. Additionally, the Asset Protection Zones are estimated to comprise 33.7% and although modified by partial clearing these will also contain some vegetation that will help to form a buffer between the proposed houses and roads under SEPP 14 wetland… As a result a high proportion of the vegetation is proposed to be retained and there is a high potential for filtering/buffering and runoff emanating from the proposed developments… Two streams occur and these drained for SEPP 14 wetland… they have been provided with at least a 40 m wide buffer of forest vegetation. As such, though they are relatively small streams they have been assigned the highest level of core riparian vegetation. This is likely to contribute significantly to the protection of water quality in the wetland… The official mapped wetlands boundary will be separated from the nearest houses by a 100 m buffer. Storm water runoff from the site would constitute a potential risk of pollution and altered hydrology to the wetland, as would waste water treatment. According to the preliminary statement of Weise which deals with environmental engineering there are still some gaps in the information about the storm water, waste water, and other related aspects… Owing to the high proportion of undisturbed native vegetation to be retained along the stream corridors, the separation of the SEPP 14 wetland from the Asset Protection Zones by a 100 m buffer and the proposals to treat runoff emanating from the site, I believe that the risks of serious and irreversible damage to the wetland from altered runoff and hydrology are relatively low. Weed invasion remains a risk to the integrity of the wetland… The presence of houses and weeds along the creek areas which are sparse or absent now, should be monitored… The best method of doing this is via a Bushland Management Plan that is funded jointly by the residents of the estate in perpetuity. Humans living in the development could impinge upon the quality of the wetland… Such impacts are manageable and can best be dealt with via a Bushland Management Plan. 27 In response to the issue of the unsatisfactory impact on native flora and fauna Dr Robertson states: Approximately 60% of the forest on the subject site is to be conserved within a conservation area and this contains known den sites of the Yellow-bellied Glider, and old growth eucalypts such as old growth Spotted Gum and Blue Gums. Additonally approximately 33% of the site comprises an Asset Protection Zone… This will also provide some habitat for native forest fauna. Gunninah (2002a and b) concluded that the proposed development would not have a significant deleterious impact upon Yellow-bellied Gliders and so no Species Impact Statement was required. It is noted that the Council have not called for a Species Impact Statement and that there is no issue in the Appeal as to whether a Species Impact Statement is needed. If the Yellow-bellied Glider is not significantly impacted it cannot be said to have had its habitat significantly fragmented or modified such as that the viable local population is put at risk. The conservation area almost encloses the development and forms a strip around the south, east and north of the site - three sides of the subject land that adjoin other forestland. As such, even without allowing for the Asset Protection Zone to provide habitat for forest fauna, a sizeable potion of the subject site will be conserved, including areas of all the tree forest types mapped… …the proposed development retains a high proportion of forest vegetation. 28 Dr Robertson makes a number of recommendations as follows: A Bushland Management Plan should be prepared for the Subdivision and should be implemented recurrently, funded jointly by the future residents of the land. The Bushland Management Plan should describe the flora and fauna values of the subject land and prescribe long term management actions to protect forest habitats and, specifically, the habitat resources of Yellow-bellied Gliders. The Bushland Management Plan should entail provision for the monitoring of vegetation immediately adjacent to the SEPP 14 wetland to ensure that vegetation condition is monitored regularly, checking for weed infestations and other features that could be symptomatic of excessive runoff from the developments. The Bushland Management Plan should include provision for action to be taken to address any weed infestations or other problems should they be detected adjacent to the wetland area. Annual reports should be prepared to outline the results of the plan and these should be provided to Council for review and comment. I concur with the recommendation by Wiese (2006) that a Soil and Water Management is also prepared and that this indicates how soil and water is managed in perpetuity on the site. The plan should link to the Bushland Management Plan and should indicate how stormwater controls are to be maintained and how such things as Asset Management Zones are to be maintained without promoting excessive erosion. Land within the conservation zone should be protected by a covenant such as a Section 88B instrument or equivalent to ensure that the proposed conservation area is protected in perpetuity. Hollow trees should be mapped on site and, where ever possible, retained within the proposed Asset Protection Areas.

29 Dr Robertson was questioned as to the need to remove some of the Yellow-bellied Glider food source, that is the Red Blood wood trees from the subject site in the Asset Protection Zone. He advised that the availability of food is not the problem but den sites, that is tree hollows, although the Glider has a 35 ha home range.

30 In Mr Weise's preliminary conclusions, he expressed concern about the lack of documentation on the waste water disposal areas and stated: Much of my concern may be addressed if the Applicant provides drawings on how the disposal areas are positioned in context of drainage lines, shading, buildings, slope and the APZ… Based on my experience in sensitive ecosystems, I consider that the storm water strategy could be modified to provide adequate protection for the surrounding environment. Amendments to the configuration, source, and treatment nodes should be made to confirm this prior to approval… Consideration should also be given to mechanisms to ensure storm water and waste water systems, and APZ management (as it relates to sediment and erosion control) are maintained for the life of the developments. These could be incorporate within a comprehensive, integrated environmental management plan for the development link to a statutory or community scheme ensuring implementation in perpetuity. 31 Mr Weise agreed that the potential impact is insignificant in the catchment that drains some 200 ha or more and that the affect of the subject developments with 3.6% of the site built upon means the impact of storm water would not be significant and that the before and after model or the NOBE (Neutral or Beneficial Effects) would achieve a neutral impact. Mr Weise advised that it would be likely and feasible to achieve the NOBE in terms of stormwater. It was agreed that there could be a deferred commencement with respect to the design of the road drainage. With respect to wastewater, Mr Weise advised that there is no issue with the onsite wastewater disposal concept as shown in Exhibit C and advised that there are a range of treatments available and the development should be the subject of best practice wastewater disposal.

32 Ms Seiden, the Court Appointed Planner, provided a preliminary report to the Court and makes the following comments: The above issues identify a range of technical matters that are required to be addressed to adequately demonstrate the safe environmental performance of the proposal. In addition, the issue of long term maintenance and management of infrastructure such as the wastewater management system, stormwater management system, sediment and erosion control mechanisms, Asset Protection Zones and the Bushland, are the identified as critical to the considerations. While a range of mechanisms have been suggested, perhaps a more practical approach would be to prepare a comprehensive Integrated Environmental Management Plan (IEMP) incorporating all the above systems. The IEMP would apply to all Lots and should be binding to the land title by way of s. 88B instrument… An alternative titling method of a community scheme has been suggested and may have to be considered. However, it is my professional experience that there is some market resistance to this product in country areas. 33 In response to Council's issue that the proposal does not retain scenic quality being located on a ridgeline Ms. Seiden states that generally the design appears to be a response to site and nearby constraints being: SEPP 14 wetland; drainage/creekline; bushfire protection requirements; a quarried pit for road base; flora and fauna; and site gradient.

34 Ms. Seiden comments that the proposed road access generally follows the position of the existing unformed dirt road on the site and that either side of the track has clearing or thinning of the vegetation to various depths and that the area occupied by the quarry is cleared of vegetation. "The entrance to the access road of Sea Acres Road is positioned at the 60 m contour and the existing dirt road enters the site at approximately the same contour level for a distance of 50 m then declines to a low point 30 m contour towards the end of the cul-de-sac… There will be limited visibility along the new access road alignment into the site, nor is there visibility from within the site to Sea Acres Road along the proposed new road access. As the new access road will not result in substantial amount of additional vegetation clearing, this will not contribute to a negative impact on scenic quality." 35 Similary, Ms. Seiden is of the opinion that the cumulative impact of clearing for the 600 m building envelopes, in particular for Lots 1,2,15 and 16 that are at the highest elevations is likely to be negligible on the overall scenic quality.

36 With respect to the clearing for the Asset Protection Zone, the road, dwelling house sites and ancillary requirements Ms. Seiden concludes: In terms of measuring the scenic impact for the site it needs to be considered in the local context also. It is noted that properties on Sea Acres Drive directly opposite the subject land, have dwellings that are highly visible, positioned close to the road frontage, cleared of large scale vegetation with gardens containing a mixture of native and exotic vegetation, which are far more visible than those proposed within the subject development. 37 With respect to the issue that the site is unsuitable for the proposed development, Ms. Seiden comments as follows: The majority of the area for the proposed access road is already a cleared unformed track and the quarried area. The only additional clearing required on the ridge top is that area for building envelopes, the last 100m access road and possibly some wastewater disposal area. The proposed building envelopes are located such that they do not impact on trees identified to be retained and allow for some flexibility in the actual positioning of dwellings within the envelope. The extent of additional clearing required to provide the building envelopes represents 1.8% of the total site area. Building envelopes for Lots 1 and 2 are close to one another, but the envelopes allow for dwellings to be positioned up to 40 m apart. Providing satisfactory areas for wastewater disposal can be accommodated without impacting adjoining Lots, I see no reason to limit the number of building envelopes in this area.

38 In response to Mr Rigg's questions, Miss Seiden stated that the proposal is not an overdevelopment of the site and a s 88(b) instrument would be an effective mechanism for the management of the proposed subdivision. She stated that there is market resistance to Community title and management can be just as much a problem under Community title as Torrens title with s 88(b) instruments. Miss Seiden is of the view that an Integrated Environmental Management Plan ("IEMP") should be prepared for the site to address the interrelationship of the various issues and the ongoing maintenance requirements.

39 The proceedings were adjourned for the court appointed experts to prepare a draft IEMP consistent with the recommendations heard in evidence.

40 It was submitted by Mr McKelvey on behalf of the council that since the time the application was originally determined by the council the applicant has subsequently provided further information on the issues previously identified when the application was originally submitted to council in 1997. It is acknowledged the applicant prior to and during these proceedings has furnished additional information and this is not unusual in appeals before this Court where a number of experts provide opinions. However, the Court is now in the position to determine the 16 lot subdivision with the benefit of more information now submitted. The Court appointed experts in their various areas of expertise have assisted my assessment of the application as has the expertise of council's officers and the rural bushfire service officer. 41 Mr McKelvey submits that the IEMP cannot be enforced because there is no entitlement to enter the privately owned lots and compliance with the IEMP would fall on council to enforce and such a situation should be avoided. In Mr McKelvey's submission if the proposed subdivision were the subject of a Community title scheme this would overcome the implementation of an IEMP. In his opinion the draft IEMP before the court in Exhibit O is incomplete, for example there are maps missing to identify the hollow bearing trees.

42 During the proceedings I raised the issue of titling and the advantages of different schemes. However the respondent objected to the applicant amending the application to include a Community title scheme because in the respondent's opinion such an amendment would constitute a new development application and I accepted this submission. 43 In assessing the development application for the subdivision of the land, I must have regard to the provisions of the Eurobodalla Rural Local Environment Plan 1987 ("ERLEP") and of particular relevance to this development application for subdivision is the environmental protection objectives and the housing objectives together with the objectives of the 1(c) zone. These are set out earlier in the judgement. Furthermore consent shall not be granted unless the development is consistent with the objectives of the zone. In particular of relevance here is to provide for residential opportunities while retaining the scenic quality and overall character of the land and the environmental quality of adjoining wetlands.

44 I must also have consideration to cl 17 that relates specifically to subdivision in the 1(c) zone. This clause requires consideration to be given to the topography of the land, the siting of dwellings, the risk of bushfires and flooding, the impact on any wetland or forest and cl 17(3) which requires consideration to be given to ensure that each lot created will have an adequate area for water, septic disposal and household waste topography, soil erosion, pollution, a range of allotment sizes, maintaining the semi-rural character and the objectives of the plan. 45 The philosophy and intent of the plan is to ensure that the impacts of subdivisions and accommodating subsequent dwellings are comprehensively assessed in terms of impacts of the carrying out of the subdivision and associated dwellings to provide for certainty in the planning process. In other words, a consent authority must be satisfied that a subdivision will not create adverse environmental impacts and that the effects of the subdivision are contained so as not to impact on adjoining sensitive lands. As such the Court as the consent authority must be satisfied that the lots created can accommodate dwelling houses and ancillary uses without adversely impacting on the environment.

46 As a preliminary point the Court ordered that s 100(b) of the Rural Fires Act 1997 applies to the development application even though the application was submitted prior to this section coming into effect. This means that the development application must be considered or assessed as integrated development requiring the approval of the Rural Fire Service. Therefore the general terms of approval from the Rural Fire Service dated 7 December 2006 must be imposed in the determination of the application by the Court. 47 The respondent accepts that the proposed development complies with Conditions (1), (2) and (3) of the general terms of approval. Condition (4) requires a 10m wide outer protection area and the council has indicated that this may be imposed as a condition of consent. Condition (5) of the general terms of approval requires the asset protection zone to be maintained as an inner protection area.

48 However, the respondent submits that implementation of the inner protection area will require the removal of significant trees to ensure that the trees do not form a continuous canopy. And while the respondent states that this of itself may not be a reason to refuse the matter, but the interaction of this requirement with the issue of ecology would give rise to a reason for refusal of the proposal.

49 The evidence of the bushfire experts is that provided the general terms of approval are imposed by the Court, then the issue of bushfire can be satisfactorily resolved. 50 Because of the interrelationship of the issues of bushfire and ecology, the Court directed that the experts confer to enable an understanding of the requirements of bushfire hazard reduction and the removal of vegetation and the impacts on the flora and fauna, in particular any threatened species or ecological communities. Refer to Figure 2.

51 I am satisfied that the bushfire risk can be managed and that the removal of the necessary vegetation would not impact on any threatened species, in particular the yellow bellied glider. Dr Robinson states that:

"The conservation area almost encloses the development and forms a strip around the south east and north of the site 3 sides of the subject land that adjoin other forest land. As such, even without allowing for the asset protection zone to provide habitat for forest fauna, a sizeable portion of the subject site will be conserved, including areas of all the tree forest types mapped… the proposed development retains a high proportion of forest vegetation." 52 Dr Robinson makes a number of recommendations for a bushland management plan and a s 88 instrument for the conservation area to be protected in perpetuity on the subject site. He also recommended that the hollow trees be mapped on the site and where possible retained, including those within the asset protection zone because food is not so much the problem but den sites for the yellow bellied glider.

53 I do not accept the respondent's submission that a s 88 instrument is an inappropriate tool where there are issues of public safety because of an agglomerated APZ. Based on the expert evidence I am satisfied that a s 88 instrument for the APZ provides greater protection for adjoining properties. I accept the experts' advice that this development would not represent more of a risk than many other subdivisions and the s 88 instrument will facilitate the maintenance of the agglomerated APZ. The experts responded directly to this question and I accept their expert opinion.

54 On the issue of stormwater the court appointed expert was critical of the initial modelling undertaken by the applicant. However with the benefit of the additional information I accept his opinion that provided appropriate stormwater treatment is implemented there would be no unacceptable discharge from the development and that it is feasible for there to be a neutral or beneficial effect. As such the applicant has agreed to appropriate conditions. 55 Similarly for the waste water disposal, even though the information was not available at the time of council's original assessment, I am satisfied now that with best practice methods that waste water/effluent disposal for the individual household can be accommodated for the allotments as shown on the subdivision plan at map 13. I make this determination having regard to the slope of the land, that is steeper for some lots, and other identified environmental issues adjoining sensitive lands including SEPP 14 wetlands. In my assessment with the benefit of the experts I am satisfied that the area available is more than adequate to ensure the impacts on the environment can be appropriately contained to ensure the environmental integrity of the area is conserved. Refer to Figure 3 that is Map 13 of application for on-site wastewater disposal.

56 In terms of cl 17(3) of the ERLEP in my assessment each lot created will have an adequate area to accommodate disposal of household waste and accordingly a condition to ensure best practice is implemented is required in the conditions of consent.

57 On the basis of the evidence of the ecologists I am satisfied that the proposed development will not threaten the endangered ecological communities and species identified. That is the Spotted Gum / Open Forest; the Spotted Gum / Blackbutt Open Forest / Forest; and the Sydney Blue Gum / Spotted Gum Open Forest / Tall Open Forest / Gallery Rainforest; or the Yellow Bellied Glider. I am satisfied that the proposed development is not likely to have a significant effect on threatened species, populations or ecological communities, or their habitats.

58 I am also satisfied the proposed development is not an overdevelopment of the land and that each of the proposed lots could accommodate a dwelling house and ancillary facilities while at the same time maintaining the scenic qualities of the area and also without impacting on threatened species or ecological communities or the surrounding environmentally sensitive lands, including the SEPP 14 wetlands. In this regard I agree with Ms Seiden's evidence in paragraph 37 above.

59 It is accepted that the site is sensitive and has constraints in terms of steepness of topography and contains important ecological communities and species. However this does not mean that the site is not capable of accommodating the number of lots proposed and clearly the long term management of the site is important for ecologically sustainable development. The on-going environmental management of the site would also be necessary for a reduced number of lots.

60 In this regard an IEMP is an appropriate mechanism to ensure that the impacts of the development are contained and managed. I accept the evidence of the experts and in my assessment the draft IEMP in exhibit O provides a holistic comprehensive tool to manage the inter-relationship of environmental and bush fire issues. While a Community title scheme to implement the IEMP may be desirable, this is not the only mechanism and the court must assess the application before it. That is for a Torrens title subdivision with an s.88B and 88E Instruments and a Residents Association to facilitate management. I am satisfied that the absence of a Community title scheme does not warrant refusal of the development application and that the implementation of the IEMP and s 88 instruments provides the necessary certainty to satisfy the provisions of the LEP, in particular cl 17, and the objects of the Act including the principles of ecologically sustainable development.

61 This application has come under greater scrutiny than previous applications in the Sea Acres Estate area and this would be expected given the heightened sensitivity of the community and consent authorities today to environmental issues and their management. The fact that an IEMP is recommended by the experts does not mean that the site is not suitable for the proposed development. The draft IEMP at exhibit O requires finalisation and the identification of hollow bearing trees, as such a deferred commencement condition is imposed. However, I am satisfied that the consent provides certainty in the assessment and determination process. I am satisfied that the proposed 16 lot subdivision with a significant proportion of the vegetation to be retained will continue to make a positive ecological contribution.

62 In my assessment of this development application I have the benefit of the authority established in the Judgment of his Honour McClellan J in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 wherein his Honour states at paragraphs 114-118: 114 Consideration of these principles does not preclude a Decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment. 115 The context in which the issues in this case must be resolved includes the history of the use of the land and the contribution, which it now makes to the existing natural environment. Although zoned industrial, that zoning was imposed at a time when the community's understanding of the significance of some elements of the natural environment was not as mature as it is now. Consideration of matters of inter-generational equity and the conservation of both biological diversity and the ecological integrity of land were not such significant elements of environmental decision making as they are today… 117 In the ordinary course, whereby its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor planning decisions must generally reflect an assumption that in some form development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects…. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 118 In most cases it can be expected that the court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 63 I am satisfied, based on the evidence to the Court, including the site inspection, that the application subject to conditions, including a deferred commencement condition, is worthy of approval and that there are no issues, singularly or in combination that would warrant refusal of the development application.

64 On the basis of my assessment above accordingly the formal orders of the Court are:

1. The Appeal in respect of the property being Lot 16 and 17 in DP 731810 Sea Acres Drive, Long Beach is upheld. 2. The development application submitted to Eurobodalla Shire Council, and as amended is determined by the granting of a deferred commencement consent and subject to the conditions contained in Annexure A. 3. The exhibits with the exception of 3, 8, 9, 15, 17, 21, B, C, H, K, L, M, N and O are returned to the parties.

      J Murrell
      Commissioner of the Court
      A.K/ljr

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