Leaney v Blue Mountains City Council

The proposal 9The proposal before the Court is the subdivision of existing Lot 12 into three lots. All lots have direct access off Turella Street. Proposed Lot 1 at the southern end of the site has an area of 2,234m2 and a frontage of 22m; Lot 2, the central lot, has an area of 1,799m2 and a frontage of 22m; Lot 3, with the exiting dwelling, has an area of 2,390m2 and a frontage of 67.81m. 10Various plans show the indicative building sites/ construction areas. The plans referred to by the applicant's bushfire consultant and ecologist show development areas of 453m2 and 369m2 for Lots 1 and 2 respectively. After the joint conferencing of the bushfire experts, the revised plan showing the proposed asset protection zones shows development areas/ proposed building envelopes of 343m2 and 246m2. An amended survey plan (exhibit E) showing the development area/ construction zone modified to accommodate an extended ecological buffer zone (as determined by the applicant's ecologist) and the necessary APZ setbacks, indicates irregularly shaped areas of 413m2 and 273m2. 11As the development is 'integrated development' under s 91 of the Act, a Bushfire Safety Authority is required pursuant to s 100B of the Rural Fires Act 1997 (Fires Act). 12At the time of the filing of the Class 1 appeal, the RFS had not issued a Bushfire Safety Authority, however since then, the Rural Fire Service, represented by Ms Iona Cameron and the applicant's bush fire consultant, Mr John Travers, have undertaken a joint conference. They have agreed on a 21m asset protection zone (APZ) from the eastern side of Turella Street to the building footprint and a 20m APZ from the rear of the proposed building envelopes. The APZ on Lot 1 extends along the southern boundary. To the west of the APZ is a mapped Ecological Buffer Area that protects Bellata Reserve and associated creek line. 13The RFS conditions are summarised as:

• The area indicated in the Travers plan are to be managed as an inner protection area (IPA) in accordance with s 4.1.3 and Appendix 5 of Planning for Bushfire Protection 2006 (PBP2006) and the NSW RFS document Standards for asset protection zones.
• Within the APZ, the separation between the canopies of trees shall be a minimum of two metres.
• Water, electricity and gas services s are to comply with s 4.1.3 PBP2006.
• The existing building on proposed Lot 3 is to be upgraded to improve ember protection.
• The indicative building enveloped on proposed Lots 1 and 2 shall be formalised by way of a positive covenant restriction on title to ensure future development on those lots complies with the APZ requirements of s 4.1.3 PBP 2006.

14The RFS asks council to note that the 21 m APZ to the east is to be measured from the eastern edge of the constructed pavement of Turella Street based on the advice that the road reserve cannot be relied upon to be managed in perpetuity. In addition, should the required APZ affect the Ecological Buffer Zone or conflict with any other environmental constraints, council and the applicant should engage a suitable environmental expert to resolve the issues that may arise and ensure the APZ is provided in accordance with the document Standards for asset protection zones. Of relevance is a clause in this document that states: "Native trees and shrubs should be retained as clumps or islands and should maintain a covering of no more that 20% of the area". 15Another early contention raised by council was the narrow width of the Turella Street carriageway and, amongst other things, access for emergency vehicles. At the site view, the RFS representatives indicated they had no major concerns, however a number of local residents voiced their concerns about its capacity to support extra traffic and parking that would be generated by the development.

The issues 16The issues between the parties are:

• Whether there is an adequate 'development space' within proposed Lots 1 and 2 in accordance with cl 90 of BMLEP, in particular, whether the site is 'Development Excluded Land' as defined in the BMLEP.
• The environmental impact of the implementation of the proposed APZ on the SSTF EEC and the Glossy Black Cockatoo.
• Whether approval would create an unacceptable precedent.

Planning controls 17BMLEP 2005 is the principal instrument. Clause 3(3)(a) states: 3Relationship to other environmental planning instruments (3)State Environmental Planning Policy No 1 - Development Standards does not apply to: (a)Clause 90(9), (which relates to the area of a development space within the Living - Bushland Conservation zone) even if that provision is a development standard, 18The following clauses are considered of general relevance: Clause 9 Considerations before development consent Clause 11 - Principle objectives of the plan Clause 13 - General locality management (1)Consent shall not be granted to the carrying out of any development on land to which this plan applies unless: (a)the development complies with the zone objectives.... 19The site is zoned Living - Bushland Conservation in the Blue Mountains Local Environmental Plan 2005 (BMLEP) (cl 24). Subdivision is permitted with consent. The (relevant) objectives for the Living - Bushland Conservation zone are as follows: (a)To allow for residential development in the form of single detached dwellings where this development is within the capacity of the environment to sustain such development and is undertaken in a manner that minimises impact on environmentally sensitive areas. (b)To preserve and re-establish native bushland in areas that exhibit a predominantly bushland character, where consistent with the protection of assets from fire. (c)To permit only low density residential land uses and retain large allotment sizes in fringe urban locations or locations that do not have reasonable access to services and facilities. 20Part 3: Assessing the site and environmental context: Division 2: Protecting the natural environment: clause 44 Environmental impact: 44(2)Subdivision Consent shall not be granted to the subdivision of land to create additional lots unless the development will incorporate effective measures, satisfactory to the consent authority, to ensure that the development, and any asset protection zones required to protect the land to be subdivided, will have no adverse impact on any development excluded land. 21Part 4: Considerations for development: Division 1 - Subdivision: Clause 90 - Lot layout 90(1)(relevantly) Living - Bushland Conservation zone - minimum area 1,200m2 with a minimum frontage of 22m. 90(8)Subdivision is to result in the retention, where possible, of existing vegetation and the layout and design of the new lots, including access ways, are to be consistent with the character of the locality. The following subclause is of greatest significance in this matter: 90(9)A lot created within the Living - Conservation zone intended as a site for a dwelling house is to include a development space that: (a)has an area of land not less than 750 square metres, and (b)is configured so as to be capable of accommodating development for the purpose of a dwelling house, and (c)incorporates that part of any asset protection zone required to be established or maintained on that lot, and (d)is capable of being accessed by a driveway that is connected to a public road, and (e)is not development excluded land [emphasis added]. 22The Dictionary in BMLEP 2005 defines 'Development excluded land' as any land: (a)zoned Environmental Protection - Private, or (b)that is designated on Map Panel B as a Protected Area - Slope Constraint Area, or (c)that is designated on Map Panel B as Protected Area - Ecological Buffer Area, or that comprises a watercourse corridor, together with any buffers required to protect the watercourse corridor, or (d)on which any significant vegetation community is located, together with any buffers required to protect that community, or (e)that is the habitat of any threatened species, population or ecological community, the development of which would have a significant effect on the threatened species, population or ecological community as determined in accordance with section 5A of the Act, or (f)on which any rare species of flora is located, together with any buffers required by the Council to protect that flora, or (g)on which there is located any significant landscape or special feature which in the opinion of Council is worthy of preservation. 23Significant vegetation community is defined in Schedule 5 of BMLEP. The schedule includes SSTF and other EECs listed under the TSC Act as well as many locally listed vegetation communities that are not listed under the TSC Act. 24Blue Mountains Better Living Development Control Plan (BMBL DCP) is relevant, in particular Part D8 - Subdivision (under BMLEP 2005). D8.5Streetscape and character - Development Spaces D8.5.6Development spaces shall be capable of including a rectangular area of dimensions 12 metres x 25 metres or 15 metres x 20 metres. The development space is not to include any development excluded land. D8.5.7 - exactly as for cl. 90(9) BMLEP at [17]. D8.7Bushfire - Asset protection Zones D8.7.2Any measures proposed to protect development against bushfire shall be undertaken on those parts of the site that are not development excluded land. D8.7.3Asset protection zones must be provided outside the buffer required to protect either a watercourse or a Schedule 5 vegetation unit.

The hearing and the evidence 25At the commencement of the hearing, several local residents voiced their objections (on site and later in Court). The key issues raised by the objectors are:

• The impact of the eventual development of the site (maintenance of APZ, pets, construction) on the EEC and local fauna including the Glossy Black Cockatoo and Gang Gang, both listed as Vulnerable species in Schedule 2 of the TSC Act;
• The adequacy of the flora and fauna assessments;
• Impacts of construction on soil erosion, water quality and freshwater habitat of the nearby creek;
• Impacts of clearing creating a greater edge effect and the risks of further invasion;
• Access for bush fire fighting and the provision of adequate water;
• Stormwater and sewerage management; and
• The loss of amenity by (eventually) enabling two additional dwellings to be built.

26The site was inspected and the bushfire and ecology experts provided assistance. As the bushfire experts had agreed on the extent of the APZs, they were not required for cross-examination however, some clarification was sought from them regarding how the APZ should be achieved. It was indicated that the current canopy cover in the proposed rear APZ is about 30-40% and this would need to be reduced to 20% with a separation of at least 2m between canopies. The RFS representatives stated that as long as the performance criteria in PBP 2006 could be achieved then groups of trees could remain. 27A number of hollow-bearing trees were noted in and around the area that would be required for an APZ. In addition, cone-bearing Allocasuarina and Casuarina spp were noted; these being a food source for the Glossy Black Cockatoos known the feed in the area. 28The areas of weed infestation were observed. Dr Mills indicated the boundaries of an extended area he says should be included as ecological buffer. The site was traversed and the varying quality of the SSTF observed. *

Ecological evidence 29Expert ecological evidence was given by Dr Kevin Mills for the applicant and Mr Robert Humphries for the council. In their joint report, the ecologists agree that, with the exception of the footprint of the existing dwelling and associated structures, and the area immediately around it, the whole of the site is SSTF under the Scientific Committee's Final Determination and Schedule 5 2(D) in BMLEP 2005. They agree that the condition of the community ranges from good to moderate to poor. A plan attached to the joint report indicates the extent of SSTF and its condition. The plan also shows three patches of weeds. The indicative construction footprints traverse poor and medium condition forest. The APZs to the rear of the construction footprints include good quality SSTF. 30The joint conference of the ecologists took place before the bushfire experts met and therefore only general conclusions could be drawn about the impacts of any APZs. They state that regardless of whether the APZs extend into the Protected Areas or adjoining reserves, they will 'impact' on the SSTF. They consider the range of activities likely to be required to produce an APZ including thinning of the canopy and removal of part of the shrub layer. They state: These activities, even at the minimum level, will have an adverse impact on SSTF but are not regarded as having a significant adverse impact. Further in the context of s 5A of the EP&A Act both experts agree that the impacts would not constitute a significant impact to SSTF and thus not require a species impact statement. Similarly, they agree that there would be an adverse, but not significant, impact on the Glossy Black Cockatoo by the removal of some female Allocasuarina sp. 31In oral evidence, Dr Mills said that taking a reasonable and practical approach rather than a very narrow interpretation of the word 'adverse', on balance there would be no adverse environmental impact of the proposal on the SSTF. Dr Mills considers implementation of a vegetation management plan to control the environmental weeds, and if necessary replace forage species for the Glossy Black Cockatoo outweighs the negative impacts. In his opinion, without development and the imposition of such a condition, the spread of weeds will continue and thus lead to further environmental degradation of the site. 32Mr Humphries said that discarding very trivial impacts, on balance there would be a net adverse impact on the SSTF; the impact is not trivial but neither is it significant. Mr Humphries agreed with Dr Mills that while weed control would be a positive benefit, the weeds currently occupy a small proportion of the site, the SSTF is recovering, and clearing for the APZ would create an observable impact.

Planning evidence 33Mr Andrew Minto gave planning evidence for the applicant, and Mr Paul Koen for the council. In their joint report, they agree that the relevant clauses of BMLEP 2005 that relate to the subdivision of land, and therefore this matter, are cl 44(20 and cl 90(9). They agree that cl 90(9) specifically applies to subdivision within the Living - Bushland Conservation zone, and being zone specific, would override the requirements of cl 44(2) which allows for a merit assessment of the impact of development on development excluded land. However, the planners have different opinions on the application of sub clauses (d) and (e) in the definition of development excluded land in the BMLEP and thus whether cl 90(9)(e) applies. 34Mr Minto considers it would be unreasonable for the proposal to be assessed against subclause (d) only. In his opinion, the proposal should be properly characterised and assessed in accordance with the requirements of subclause (e), being a significant impact on an EEC. He argues that as the ecologists have determined the would be no significant impact on the EEC or any threatened species, the development spaces don't contain development excluded land for the purpose of cl 90(9). 35In Mr Koen's opinion, subclauses (d) and (e) of the definition of development excluded land operate in conjunction with one another and one does not supersede the other. He considers that while the ecologists have found there will be no significant impact of the proposal and therefore there is no development excluded land on the site that falls within subclause (e) of the definition, subclause (d) still applies. Therefore the suggested development spaces are development excluded land. He also notes that cl 3(3) of BMLEP 2005 renders the minimum area of the proposed development space not amenable to a SEPP 1 objection. 36In regards to whether approval of the development application should be refused because it will create an unacceptable precedent, Mr Minto is of the opinion that it wouldn't because every application has to be assessed on its own merits. Mr Koen's opinion is that it would create an unacceptable precedent in the particular zone as it wouldn't comply with the relevant clauses of the BMLEP. 37During cross-examination, the planners maintained their positions. Mr Minto considers that the narrow application of the definitions of 'development excluded land' is inconsistent with the aims and objectives of the BMLEP and relevant clauses that consider minimising the impact of development on the environment. He maintains that the proposal meets the zone objectives, something he says is fundamental, and the other relevant subclauses of cl 90. 38Mr Koen relies on the advice of council's environmental officer that the impact on the SSTF will be adverse. He agrees that there must be compliance with zone objectives but that also applies to other provisions of the LEP. He states that there is nothing in cl 44(2) that refers back to the objectives. 39In regards to the revised survey plan showing the reconfigured proposed construction zone/ development space, the planners agree that the dimensions no longer comply with cl D8.5.6 of BMBL DCP. They agree that to comply with that clause the APZ would have to extend into the ecological buffer zone, which is prohibited. Mr Minto maintains that the space could be configured so as to be capable of accommodating development for the purpose of a dwelling house in accordance with cl D8.5.7(b).

Submissions 40Mr McKee for the applicant contends that the overall intent of the relevant clauses in BMLEP is to enable development within the capacity of the land and which strikes a balance between managing bushland and addressing the risk of bushfires. He maintains that the proposed development achieves this balance by siting the development space on already disturbed land and proposing a vegetation management plan that will provide better environmental outcomes than no development at all. He contends that creating an APZ will require little clearing now but some culling of recruitment vegetation as well as the opening up of a canopy that is already disturbed. He presses that considering the reality of the site and taking a reasonable approach, the subdivision should be approved and he accepts the council's draft without prejudice conditions. 41Mr McKee submits that the conflict between subclauses (d) and (e) in the definition of development excluded land should be resolved by accepting that subclause (e) should prevail as the leading provision as it specifically addresses EECs. Mr McKee cites Project Blue Sky v ABA [1998] HCA 28 at [70] that A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals [49]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all of the statutory provisions [50]. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" [51]. Only by determining the hierarchy of the provision will it be possible in many cases to give each provision which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. In this, Mr McKee argues that the leading provision is the TSC Act and the harmonious goal is the balancing of development while avoiding a significant impact on the environment. By setting the level of harm at ' no significant impact', the balance is achieved. He submits that this then provides clarity as the impact of assessment is based on the criteria set down in s 5A of the EP&A Act. In this regard he says that while the ecologists might disagree on the balancing exercise, they do agree that there will be no significant impact on the EEC or any threatened species. He considers subclause (d) to be draconian in its effect on development. If subclause (e) of the definition of development excluded land is accepted, then he says the proposal is acceptable and should be approved. 42In regards to definitions and to give further weight to his argument, Mr McKee cites Cranbrook School v Woollahra Council [2006] NSWCA 155 at [38] - [39] that in essence, a definition is no more than an aid to the construction of the statute and does not operate in any other way. 43Mr Seton, for the council, contends that s 26 of the EPA Act enables environmental planning instruments, in this case BMLEP, to make a range of provisions for controlling development and protecting the environment, including through zoning or by imposing other restrictions that cannot be varied. 44He maintains that the determinative test in this matter is compliance with cl 90(9) of the BMLEP. In this regard he stresses that cl 3(3)(a) expressly states that SEPP 1 does not apply to cl 90(9) of the LEP and that strict compliance with cl 90(9) is required otherwise development is not permitted. 45In regards to the definition of 'development excluded land', Mr Seton argues that each subclause is not mutually exclusive and both (d) and (e) apply. Because SSTF occurs across virtually the whole site, as agreed by the ecologists, there is no development space that is not development excluded land and therefore the proposal does not comply with cl 90(9). He contends that the quality of the SSTF is not relevant. 46Mr Seton accepts that cl 44(2) of BMLEP enables some merit assessment however, it requires that there be 'no adverse impact' of the development and the creation of any APZ on any development excluded land. He contends that the word 'significant' can't be imported into the clause because if that was what was intended it would have been included. The proposed APZs will extend into the best quality SSTF, extend the edge effect, and require additional clearing of trees. He considers that the only positive measure is a proposal for weed management of a relatively small percentage of the site and this does not compare to the extent of good quality forest that would need to be cleared for an APZ. Therefore there will be an adverse impact, which will be discernable and not trivial. In conclusion, Mr Seton contends that this is a clear case of the facts requiring refusal of the appeal.

Findings 47After considering the evidence and the planning instruments, I agree with Mr Seton and find that the appeal must be dismissed. While I agree with Mr McKee and Mr Minto that on the face of it the proposal meets the objectives of the Living - Bushland Conservation zone, it does not meet other relevant and specific provisions of the BMLEP. Compliance with zone objectives is not enough. 48Fundamentally, cl 90(9) of BMLEP requires any lot within the Living Conservation Zone that is intended as a site for a dwelling house, as this proposal does, to include a development space. That development space must comply with all of the subclauses in cl 90(9); that is, it: must be at least 750m2 in area; capable of being configured to include a dwelling; incorporate any necessary APZ on the lot; be accessed by a driveway connected to a public road; and, significantly, is not development excluded land (cl 90(9)(e)). Clause 3(a) of BMLEP states that SEPP 1 does not apply to cl 90(9); essentially, any variation in the standard is 'not negotiable'. 49It is common ground between the ecologists that, apart from the existing dwelling and its immediate surrounds, the SSTF EEC extends across the entire site. I agree with Mr Seton that the categories in the definition in BMLEP of 'development excluded land' are clear and are not mutually exclusive. Any or all of the categories could apply and there is no hierarchy of categories. Both subclauses (d) and (e) apply to SSTF. Neither clause requires the STTF community to be in any particular condition. Therefore, by definition, the two new proposed lots cannot provide a development space. 50Without affecting any other provision of the Act, s 26 of the EP&A Act, enables an environmental planning instrument to be made, which protects vegetation - including endangered ecological communities. The listing of SSTF in Schedule 5 of the BMLEP is in addition to, but not subservient to, its separate listing in Part 3, Schedule 1, of the TSC Act. Therefore I don't accept Mr McKee's argument that there is an inherent hierarchy of categories in the definition of 'development excluded land'. 51Further, cl 44(2) of BMLEP states that consent shall not be granted to the subdivision of land unless there are measures to ensure that the development, including any asset protection zones, will have no adverse impact on any development excluded land. 52While the ecologists agreed, to varying levels, that the proposed development would not have a significant impact on the SSTF, they agree in their joint report that there would be an 'adverse' impact on it. In oral evidence Dr Mills deviated somewhat from his written statement in that he considered the likely impact to be trivial in a practical interpretation of the word 'adverse' meaning 'harmful', and in that sense, the impact would not be 'adverse'. Dr Mills' opinion is based on what he considers to be the net benefit of managing weeds versus the impacts of clearing and pruning to achieve an adequate APZ. In this regard I accept Mr Humphries' assessment that the weeds are located in a relatively contained area, the SSTF is recovering in the more cleared areas, and clearing for the APZ would create an observable impact in an area mapped (by the ecologists) as being of good quality SSTF. This area extends beyond the 'extended ecological buffer zone' as determined by Dr Mills. 53While cl 44(2) does invite some degree of merit assessment of a proposed subdivision, the test in that clause is no adverse impact on any 'development excluded land'. The Oxford Dictionary meaning of 'no' in this context is 'not any'. Even if 'harmful' is substituted for 'adverse', it is unlikely that the removal of any part of an EEC would be without any harmful impacts. In my view, opening up the canopy in good quality SSTF that includes hollow-bearing trees to about 20% canopy cover from its current level of 35-40% could readily be construed as having an adverse/harmful impact on that EEC. 54 I agree with Mr Seton in that had the drafter of the LEP meant no 'significant' impact, then that word would have been inserted but it cannot now be imported. I also note the planners' agreed statement in [32] that cl 90(9) being zone-specific would override the requirements of cl 44(2) which allows for a merit assessment of the impact on development excluded land. In this regard, the debate about achieving a 'balance' between the pros and cons of the proposal are of little relevance. 55The proposal is also non-compliant with cl D8.5.6 of BMBL DCP in that the revised survey plan (exhibit E) showing the amended construction zone reconfigured to accommodate the extended ecological buffer zone and the required APZs does not provide a rectangular area of 12m x 25m or 15m x 20m that does not include any development excluded land. Similarly, as proposed lots 1 and 2 are covered in SSTF and are therefore 'development excluded land', clauses D8.7.2 and D8.7.3 of BMBL DCP concerning the creation of APZs, cannot be achieved. 56In regards to the impact of the proposal on the Glossy Black Cockatoo, I accept the ecologists' opinions that the removal of a few female Allocasuarina trees would not have a significant impact on the birds. It was common ground that suitable plants are abundant in the immediate area. 57The issue of unacceptable precedent does not arise. While I accept Mr Minto's argument that the individual circumstances of each development proposal must be considered, applying the controls in the BMLEP means that the extensive presence of SSTF EEC on this site excludes it from subdivision.

Orders 58On the basis of the forgoing, the Orders of the Court are: (1)The appeal is dismissed. (2)Development Application No. S/21/2011 for a three-lot subdivision of Lot 12 in DP 255826 known as 9 Bellata Court (and also known as 4 Turella Street) Glenbrook is determined by refusal. (3)All exhibits except 1, 9 and E are returned.

J Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2012