Lend Lease Communities (Wilton) Pty Ltd v Wollondilly Shire Council [2016] NSWLEC 111 | Case summary

Lend Lease Communities (Wilton) Pty Ltd v Wollondilly Shire Council [2016] NSWLEC 111 | Case summary | Zoe

[4]

The 2006 development consent

On 15 May 2006, the Council issued a notice of determination for a staged development proposal for the development of the Bingara Gorge Estate. In order to understand the matters that require to be considered in these proceedings (although now quite limited compared to the extensive range of concerns raised by the Council initially in its contentions), it will be necessary to reproduce a number of plans at various points in this judgment. The first of those is a plan that shows the nine precincts within which residential development was approved in concept.
It is also appropriate to reproduce portion of condition 1 of the 2006 development consent, as it plays a role in two of the matters of significance in these proceedings. The relevant portion of the condition reads: 1 COMPLIANCE To ensure that the development is carried out in accordance with the conditions of consent and the approved plans to Council's satisfaction. 1.1 Development Consent is granted for the following on Lot 101 DP 1045369 and Lot 6 DP 836296, Condell Park Road, Wilton: A. Staged Development being the overall development of the site which includes: - The use of the land for the purposes (and generally in the areas) shown on the Concept Plan for the site: - Housing; - Open space; - A mixed use village centre, incorporating, but not limited to, commercial and retail uses; - Community facilities; - Recreational facilities (such as the golf course); - Landscaped streets and access paths; - A sewage treatment plant and treated waste water reuse scheme; - Utility services. 1,165 residential lots with the minimum lot sizes as shown on the Concept Plan. Subject to a further development application being submitted for any works not identified as being part of Stage 1.
There are two matters to be observed with respect to that which is set out above. First, the approval authorises, at a broad conceptual level (setting aside, as presently irrelevant, the detailed approval for Stage 1), the use of the land encompassed within the whole of the Bingara Gorge Estate landholding in the parcels specified in the development consent for the various purposes set out in the list in the condition. This element will require further consideration in the context of whether or not it is legally permissible and appropriate to grant consent to the vegetation clearing within the undeveloped remainder of the approved development footprint.
Second, it can be seen that this development consent approved an allotment yield of 1,165 residential allotments in circumstances where, in these proceedings, Lend Lease seeks approval to increase the allotment yield from that maximum of 1,165 allotments to a maximum of 1,800 allotments. Although a potential maximum yield of 1,800 allotments in lieu of 1,165 allotments is no longer opposed by the Council, for reasons later discussed, it is appropriate, at this time, to note this term of the 2006 development consent.
As earlier noted, the concept approval given by the Council has provided the platform for further, subsequent approvals of detailed subdivision patterns and road layout developments. This has occurred within the development yield limit in the overall concept plan scheme of 1,165 allotments from the total development.
To date, the detailed subdivision approvals incorporate a development yield of 973 allotments. This current, approved detailed development yield, achieved through an incremental subdivision layout approval process with the Council, means that, if the 1,165 development yield limit is to be retained, the remaining four of the original nine precincts in the approved concept plan will only be permitted to give a development yield of an additional 192 allotments.

[9]

The issues

The Council filed an original Statement of Facts and Contentions on 12 August 2015. However, by the time of finalisation of the hearing, the matter was being dealt with in the context of a Further Amended Statement of Facts and Contentions. During the period leading up to the commencement of the first phase of the hearings, the expert evidence preparation process led to a resolution of a number of matters that had been initially contended by the Council as warranting refusal or contributing to the warranting of refusal. It is unnecessary to set out the nature of the contentions that had been so resolved. The remaining matters, at the commencement of the hearings, fell into the following categories:

Legal issues;
Whether or not the timing of the proposed vegetation clearing activities should be dealt with as part of specific subdivision applications on a precinct or sub-precinct basis when development applications were made to the Council for specific proposed allotment layouts;
Whether the proposed combined fire-trail and cycleway/walking pathway elements should be permitted to be constructed within the land mapped as environmentally sensitive or whether they should be constructed within the development site;
Whether the protective regime proposed for possible Aboriginal artefacts within the areas agreed to be potential archaeological deposits (PADs) within the development site was acceptable;
If the proposed combined fire-trail and cycleway/walking pathway was appropriate to be approved at their proposed location given that elements of this construction, if approved, would intersect with PADs at a number of locations;
The extent to which Cumberland Plain Woodland and/or Sandstone Shale Transition Forest (endangered ecological communities protected under the TSC Act) existed on the site and, if they did, what were the consequences of such a finding (and whether or not a Species Impact Statement was required for either or both);
Unresolved aspects of parking and traffic impacts; and
The vegetation significance of the areas within the designated environmentally sensitive lands through which the proposed combined fire-trail and cycleway/walking pathway was to be constructed.

[10]

The resolved issues

When the proceedings commenced, the Council had a significantly sized range of merit issues which the Council contend, either individually or in combination, warranted refusal of the application. The Council also raised what it said was a legal impediment to the development outcome being sought by Lend Lease being achieved using the development application that is the subject of these proceedings. The legal issue is not the subject of this decision and it has been deferred for a subsequent hearing if required.
However, with respect to the very broad range of matters in contest from the commencement of the proceedings, almost the entirety of them were resolved during the hearings, either as a consequence of agreement between the experts during the course of the various groupings of concurrent expert evidence; by provision of further information by Lend lease to the Council; or as a result of discussions between the parties and their advisers about the terms of conditions that might be attached to any approval which would arise from the proceedings.
The observations that follow concern only three areas that are now resolved but which form part of the matrix within which the remaining matters need to be considered.
The three groups of matters needing mention and that have been resolved are: 1. In the 2006 development consent granted by the Council for development at Bingara Gorge, the Council set, in the conditions of consent, a maximum upper limit of 1,165 allotments across a total of eight precincts. During the development process for the first five precincts (Precincts 3, 4, 5, 6 and 9), the Council approved a total development yield of 973 allotments (Exhibit 11, Joint Expert Planning Report, folio 4). The interrelationship of this approved accumulated development yield, when compared to the development yield limit in the 2006 development consent, meant that there was only a residual permitted yield of 192 allotments for approximately half the overall approved residential development area footprint approved in 2006. During the course of the proceedings, despite the Council's initial position that the overall yield should not be increased, the Council conceded that some (at that time unspecified) increase in yield might be permitted. To assist the exploration of what this concession might mean, I prepared a set of questions to be put to the parties' respective planning experts. Those questions were: Assuming Precincts 1, 2, 7 and 8 are all to be developed: Do you accept that a residential developable site yield of ~0.7 ha per site ha is an appropriate basis to calculate overall gross potential residential yield? Do you consider that there should be any variation to the residential developable site yield between the precincts? What do you consider would be the acceptable: average residential block size; minimum residential block size; and maximum residential block size for each of these precincts consistent with the existing scale and pattern of development within the already developed Lend Lease Bingara Gorge site? What do you consider would be the acceptable allotment yield of the "orphan block" to the southwest of the golf course clubhouse consistent with the existing scale and pattern of development nearby and within the already developed Lend Lease Bingara Gorge site? Mr Lukic, for the Council, and Ms Bull, for Lend Lease, considered these questions and produced an Addendum Joint Town Planning Report addressing them. The outcome, in summary, is that the Council now concedes, on a development yield merit basis, that a maximum of 1,800 allotments is potentially capable of achievement. That agreement was reflected in a table that set out the range of allotment yields for each of the remaining four undeveloped precincts and the orphan allotment remaining to be developed in Precinct 3. As a consequence, the Council is now prepared to agree to an overall development yield of 1,800, framed in terms of the varying yield ranges set out in the table agreed to by Mr Lukic and Ms Bull. The Council proposes that, over time as individual precinct or sub-precinct subdivision plans are approved, the approved numbers will be deducted from the total remaining yield (a yield defined by subtracting from 1,800 the number of allotments already approved, giving a residual maximum yield available for later stages). 1. Second, following extensive cross examination, the Council's ecological expert, Dr Kevin Mills, agreed that no Species Impact Statement was required for any of the vegetation potentially impacted by the proposed development (including the proposed complete vegetation clearing within Precincts 1, 2, 7 and 8 and the orphan allotment in Precinct 3 for which consent was sought through this application). In addition (and in particular), Dr Mills agreed that the clearing of the significantly degraded patch of Cumberland Plain Woodland (an endangered ecological community) on Precinct 1 was acceptable and, subsequently, the Council also accepted that no additional offsets (as originally proposed by the Council) should be required to be purchased by Lend Lease to compensate for clearing of the patch of Cumberland Plain Woodland. 1. Third, as discussed in more detail later in the context of the remaining disagreement between the Council and Lend Lease about the appropriateness of constructing fire trails in the environmentally sensitive lands mapped by the Council, Mr Lukic agreed that he did not object to the construction of a combined cycleway/pedestrian pathway along the corridors of each of the locations for which Lend Lease sought approval for a fire trail but did object to the extent of construction necessary for what was, in his view, acceptable (but not to be converted into a fire trail).

[11]

Bushfire issues

Bushfire evidence was given, on behalf of Lend Lease, by Mr House, Director at Ecological Australia with postgraduate qualifications in fire management and fire risk assessment. For the Council, evidence on this topic was given by Mr Lukic. Mr Lukic has no formal qualifications in bushfire issues but, in response to questions from Mr Tomasetti, outlined that he had attended several single-day training courses run in-house for the Council on these matters. He explained that he was familiar with Planning for Bushfire Protection 2006 (currently applicable) and with its predecessor document, Planning for Bushfire Protection 2001. He also candidly acknowledged that he sought the assistance of advice from planning assessment staff of the Rural Fire Service when he needed it. He also acknowledged that he would defer to the professional expertise of such Rural Fire Service staff.
Mr House and Mr Lukic each provided written statements of evidence (Exhibits AL and 10, respectively) and conferred to produce a Joint Expert Bushfire Report (Exhibit 12). They gave concurrent oral evidence on bushfire issues.
There were no significant disagreements between them on the question of the appropriateness of the technical specifications for the eight elements of the combined fire trail/cycleway/pedestrian pathway proposed to be constructed within the environmentally sensitive lands.
Their fundamental disagreement was as to whether it was appropriate to permit this construction to take place within the environmentally sensitive lands.
Mr Lukic explained that his fundamental objection was not to provision of a shared cycleway/pedestrian pathway within the environmentally sensitive lands but to it being constructed to a standard that permitted its use as a fire-trail. His objection to this was on the basis of the width of that which would be required (four-metre vehicle trafficable space together with one-metre cleared shoulders on each side coupled with a four-metre vertical clearance above). He considered that this would require excessive and unacceptable vegetation removal.
Mr Lukic's objection to the construction within these lands is discussed in more detail below in the context of the provisions of the Council's planning controls.
It is appropriate to note at this point, that the proposed linkages of any of the sections of this proposed combined fire-trail and cycleway/walking pathway to cul-de-sac heads or, by easement, to other roadways can only be regarded as speculative as it is clearly the position that there is no detailed proposal, in any of these four precincts, for a detailed subdivision layout and that such a subdivision layout shown on Exhibit BK's plans for these works was purely hypothetical. This matter was required to be explored further with the town planners during the course of the second phase of the proceedings.

[13]

Accessibility issues

During the course of final submissions, as part of the ongoing discussions between the parties about conditions of consent that might attach if a development approval were to issue from these proceedings, the issue arose as to whether or not a condition should be included requiring compliance with the Commonwealth Disability Discrimination Act 1992 (Cth).
This arose in the context of evidence given by Mr Lukic about various possible condition permutations based on various Australian Standards that might potentially be applicable to the proposed fire trails/cycleways/pedestrian pathways element of the application. Although there was a deal of ambivalence in his evidence as to how he believed accessibility should be achieved for these trails (whether constructed as fire trails or purely for recreational purposes being irrelevant), he steadfastly maintained his view that accessibility was appropriate to be required.
As consequence, toward the conclusion of the hearings, in order to permit determination of this issue, Mr McEwen sought leave to amend the Council's contentions to plead accessibility issues in a fashion that would permit them to be dealt with in these proceedings.
Mr Tomasetti opposed leave being granted on the basis that, if leave were to be granted, Lend Lease would not be in a position to respond adequately to the proposed condition sought to be imposed. In this context, it is unnecessary to set out the precise terms of what would have needed to be dealt with because, as discussed below, the matter was disposed of at that time.
Mr Tomasetti submitted that, as this matter had not been raised at any earlier time and in an appropriately formal fashion, it was too late to do so. He relied on the decision of the High Court in Aon Risk Services Australia v Australian National University [2009] HCA 27; 239 CLR 175 in support of this proposition.
To assist me in my consideration of the application and, if granted, how I might deal with it, I had had the advantage of a further plan prepared by Cardno which demonstrated, for one section of one of the elements proposed within the environmentally sensitive lands, the extent of the additional works that would be required in those environmentally sensitive lands if there were to be a requirement to render that which was proposed to be constructed as fully accessible.
After a short adjournment, I indicated that I proposed to grant leave to amend, did so and then indicated three reasons why I did not propose to require incorporation of the proposed condition. At that time, I indicated that I would provide, in this decision, a somewhat more detailed explanation of the reasons for that position. That which follows addresses these matters.
First, I indicate that I considered that it was appropriate to deal with this matter on a bundled-up basis not uncommon in dealing with applications for leave which, if granted, would require dealing forthwith with the substantive issue assessment of that for which leave was sought.
In this context, sufficient had arisen from:

the evidence of Mr Lukic;
the various Australian Standards documents to which I had been taken;
the material provided by Mr Tomasetti concerning the Commonwealth legislation; and
the supplementary plan drawn by Cardno that I was satisfied I could deal with the merits if I were to grant leave. On this basis, although very late in the piece, I considered it appropriate to grant leave in order to dispose of the matter. Had I not reached the conclusion that I had formed on the merit desirability of that which was sought to be pleaded by the Council, I am satisfied that a significant Aon impediment would have arisen that militated against leave being granted.

However, I granted leave and then proceeded to outline the three reasons why, having granted leave, I proposed to reject the Council's suggested condition. Those three reasons, as then outlined, were: 1. The lack of certainty that would follow if the condition were to be imposed; 2. The position that, if there were to be disputes arising out of the condition, they would be dealt with by a body other than this Court and dealt with in a discretionary fashion outside the scope of proper planning consideration; and 3. The extent of the additional works to render the construction within the environmentally sensitive lands fully accessible would involve significant and unacceptable environmental impacts on those lands.
With respect to the first point, incorporation of the Council's proposed condition would have engaged consideration of issues of construction standard for the works in the environmentally sensitive lands in a fashion where there was no certainty of the construction outcome, as there were exculpatory provisions in the Commonwealth legislative scheme that would have permitted arguments as to whether it was appropriate to construct to a fully accessible standard or not. Permitting the incorporation of a condition that posed a very significant likelihood of an argument of that nature requiring to be dealt with would, in my assessment, have transgressed the necessity for certainty by this Court as a determining authority in a fashion said by the Court of Appeal in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 to be unacceptable.
Second, if there were to be a dispute of the nature potentially triggered for the reasons discussed immediately above, that would be a dispute that would not be dealt with in a proper planning context within this Court but would be dealt with through the various processes arising under the Commonwealth legislation. As a matter of discretion, that would be an unsatisfactory outcome as determining, to finality, matters arising out of this development application would be more appropriately dealt with by this Court in these proceedings.
Finally (and most powerfully persuasive against the Council's proposal), the Cardno plan showed that, to render the construction accessible along the extent of the element demonstrated, there would need to be very major additional cut-and-fill when compared to the long and cross-sectional construction intervention shown in the main bundle of Cardno plans. The lands where this construction is proposed to take place have been identified as environmentally sensitive, an identification significantly borne out by observation during the course of the site inspection. I am satisfied that, to have required full accessibility construction in the fashion the Cardno plans demonstrated would be necessary, that would be an act of environmental vandalism creating an impact far beyond any benefit which might potentially be obtained by doing so.
For these three reasons, I granted leave and rejected the Council's proposed condition.

[16]

The 2011 LEP context

The 2011 LEP contains a provision setting out the requirements for consideration of proposals for development within environmentally sensitive lands such as is here proposed. Those provisions are contained in cl 7.2 of the 2011 LEP, with the relevant provision here engaged being that contained in cl 7.2(4). The relevant extract from the 2011 LEP is in the following terms: 7.2 Biodiversity protection (1) The objective of this clause is to maintain terrestrial and aquatic biodiversity including: (a) protecting native fauna and flora, and (b) protecting the ecological processes necessary for their continued existence, and (c) encouraging the recovery of native fauna and flora and their habitats, and (d) protecting water quality within drinking water catchments. (2) This clause applies to land identified as "sensitive land" on the Natural Resources - Biodiversity Map. (3) Before determining a development application for land to which this clause applies, the consent authority must consider any adverse impact of the proposed development on the following: (a) native ecological communities, (b) the habitat of any threatened species, populations or ecological community, (c) regionally significant species of fauna and flora or habitat, (d) habitat elements providing connectivity, (e) water quality within drinking water catchments. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any adverse environmental impact, or (b) if that impact cannot be avoided - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
In this context, it is appropriate to note that, in 2016, effective from 20 January 2016, the Council adopted a new Development Control Plan, Development Control Plan 2016 (the 2016 DCP). Volume 2 of the 2016 DCP contains a specific map of the Bingara Gorge lands, a map that notes the location, amongst other things, of where the DCP envisages structures described in the legend to the map as "Shared Pedestrian/Cycle paths network/Fire Trail" are to be located.
The evidence discloses that this plan was developed on behalf of Lend Lease and provided to the Council. In evidence, there is a copy of the plan provided to the Council and it is clear that the only difference between the plan provided by Lend Lease and the plan that has been reproduced in the 2016 DCP is the removal of the Delfin logo from the plan provided to the Council.
To enable an understanding of this plan, it is appropriate to reproduce a copy of the plan and to do so at a size that enables, with a little care and reasonable eyesight, the legend of the plan to be read. As a consequence, that plan is reproduced at A4 (the size in the 2016 DCP) as Appendix 1 to this decision.
It is in the context of cl 7.2(4) of the 2011 LEP and Map 4 in the 2016 DCP that I turn to consider the disagreement between Lend Lease and the Council on the elements shown in the Cardno plan earlier reproduced for which consent is now sought.
There are two preliminary observations to be made. The first is that Mr Lukic does not raise any objection to the construction of a shared pedestrian/cycle pathway through the environmentally sensitive lands at the locations shown in the plans.
By necessary implication, although not put to him in precisely these terms, it must be that he is satisfied that construction of this more limited nature would not be contrary to cl 7.2(4) of the 2011 LEP. Considering the terms of the various elements of this provision, it must be that he is satisfied that (b) of the clause is satisfied.
Second, it is also clear from Map 4 that whoever prepared the 2016 DCP considered that that which would satisfy the descriptor in the legend to the 2016 DCP would also satisfy the requirements of cl 7.2(4) of the 2011 LEP. This conclusion is to be drawn because it is axiomatic that a subordinate instrument (as is the case with a development control plan) cannot be inconsistent with the primary instrument that provides its foundation.
The second observation to make, consequent on the position advanced by Mr Lukic, is that the nature of the dispute between the parties is not as to whether there should be any construction intruding into the environmentally sensitive lands, merely as to its width and upward vegetation clearing. In this context, it is to be observed that the width of any element of such a structure which is to be a combined cycleway and pedestrian pathway is to be 2.5 metres. That which is proposed to be constructed is to be in conformity with the requirements as earlier noted for a fire trail set in Planning for Bushfire Protection 2006.
I have earlier set out my reasons for permitting the Council to amend its proposed conditions of consent to incorporate one dealing with the Commonwealth Disability Discrimination Act and my reasons for rejecting the proposed condition.
It is also to be observed, in this context, that the volume of Cardno plans from which the earlier proposed fire trail location plan was taken, included detailed long and cross-sectional plans for each of these fire trails as well as detailed locational plans showing them in their context in comparison to the boundary between the environmentally sensitive lands and the development footprint lands for each of the three precincts where such construction is sought to be approved.
In addition to Mr Lukic indicating that he did not oppose the construction of the shared cycleway/pedestrian pathway at the proposed locations, Mr Tomasetti questioned Mr Lukic about the Council's policy for emergency vehicle access to such locations. Mr Lukic acknowledged that it was the Council policy that such facilities should be constructed in a fashion that would permit vehicle access.
Although Mr Lukic, the Council's Senior Development Assessment Officer, and Ms Stengl, the Council's Team Leader - Environmental Services, both gave evidence that they considered it appropriate that any fire trail be constructed outside the environmentally sensitive lands, this has to be considered in the context where, from a planning perspective, the agreed uncontradicted expert evidence is that construction of the cycleway/walking path element in those lands was acceptable.
It is also appropriate to note that, in these proceedings, Lend Lease does not seek consent for any bushfire risk mitigation works to be permitted to be conducted in the strip of vegetation that would lie between the proposed fire trails and the boundary of the relevant development precinct footprint for which consent was given in 2006.
At this point, it is appropriate to note that I have had the advantage of Smith AC sitting with me to advise me on matters in these proceedings. Dr Smith is a highly qualified and experienced forester with an extensive knowledge of native vegetation matters. I have been greatly assisted on this issue by having the benefit (as a consequence of the extended nature of the hearings in this matter) of many conversations with him on this issue. While he has discussed this matter with me, of course the conclusions subsequently set out are those for which I alone bear responsibility.
For the purposes of consideration, first, of cl 7.2(4) of the 2011 LEP, it is clear that the construction of the cycleway/pedestrian paths, because they cause the first construction intrusion into the environmentally sensitive lands have the effect of disengaging the necessity to consider cl 7.2(4)(a) and that thus, in this context, it is the terms of (b) that require consideration. In this sense, having walked the alignment of the proposed construction and having considered both the long and cross-section detail provided in the Cardno drawings, it cannot be said that that which is proposed as an incremental increase in width to the cycleway/pedestrian path cannot be regarded as being proposed to be constructed in a fashion where the impact is not minimised in doing so. The extent of the additional vertical vegetation would also be limited.
In this context, it is next appropriate to turn to the terms of the 2016 DCP, particularly to Map 4 of that document before turning to consider the detail shown on it.
A close examination of this map discloses that that which is envisaged by the Council by its adoption of the 2016 DCP is, in terms of perimeter construction around the boundary of the development footprint but within the environmentally sensitive lands, significantly more permissive in anticipation than that which is encompassed in this application. It is clear that the 2016 DCP contemplates that there will be a complete perimeter fire trail constructed within the environmentally sensitive lands. As a consequence, there can be no suggestion that what Lend Lease proposes in this application is inconsistent with the terms of the 2016 DCP.
As to the emphasis I should give to the 2016 DCP, Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a development control plan in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at [75], three propositions emerge. First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a development control plan are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly if there are no issues relating to compliance with the relevant local environmental plan. Thirdly, a provision of a development control plan directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative. On the other hand, the mere fact that a proposal meets the requirements of a development control plan does not automatically mean that consent will be granted.
In this case, the 2016 DCP promotes fire trails at the proposed locations.
In the context here where there is no proper evidentiary basis upon which I could conclude that I ought not permit any construction activities at the locations of these proposed fire trails, I am satisfied that there is no proper basis, on balance, why I should decline to permit the additional width to be constructed, given that there will already be construction intrusion along the corridor within which what is proposed to be a fire trail is to be constructed as a consequence of the insertion of the cycleway/pedestrian paths in those corridors at the proposed locations.

[17]

Vegetation clearing

I have earlier set out the terms of the 2006 development consent that defined the range of purposes for which consent to use the land was granted in condition 1.1.A of that consent. It is in the context of that approval that I must consider whether or not this element of that for which consent is applied in this development application - that is for a consent to clear vegetation across the totality of Precincts 1, 2, 7 and 8 and the orphan allotment in Precinct 3 should be granted.
The position put by the Council is that the application is merely an application for land clearing and that that is not something permitted by the land use table in the 2011 LEP. The land is zoned R2 Low Density Residential in the land use table in a fashion that is standard for a local environmental plan is based on the Standard Instrument template. The relevant portion of the land use table is in the following terms: Zone R2 Low Density Residential 1 Objectives of zone To provide for the housing needs of the community within a low density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. 2 Permitted without consent Home occupations 3 Permitted with consent Bed and breakfast accommodation; Boarding houses; Cemeteries; Child care centres; Community facilities; Dwelling houses; Educational establishments; Emergency services facilities; Environmental facilities; Environmental protection works; Exhibition homes; Exhibition villages; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Home occupations (sex services); Neighbourhood shops; Places of public worship; Recreation areas; Residential accommodation; Respite day care centres; Roads; Sewerage systems; Signage; Veterinary hospitals; Water supply systems 4 Prohibited Attached dwellings; Multi dwelling housing; Residential flat buildings; Rural workers' dwellings; Shop top housing; Water treatment facilities; Any other development not specified in item 2 or 3
On the other hand, Lend Lease says that the vegetation clearing for which it seeks consent serves the purpose of residential development. In support of this proposition, Mr Tomasetti read an affidavit from Mr Robert Bennett, the Lend Lease employee responsible for supervising and managing the Bingara Gorge development. Mr Bennett's affidavit provided information about the general layout and design processes undertaken by Lend Lease in preparing elements of this site for subdivision. That preparation encompassed vegetation clearing, land levelling (both cut and fill) and road construction. To provide evidence illustrative of this process, Mr Tomasetti tended plans for Stages 1 and 2 of Greenbridge East, the development taking place in Precinct 9, for which the Council had recently given development consent.
This showed the extent to which earthworks were proposed by Lend Lease and had been approved by the Council. As part of the carrying out of those earthworks and site preparation, it will be necessary to remove all vegetation within the proposed development footprint. However, at several locations outside the two elements of the Greenbridge East overall layout but in Precinct 9, vegetation has been retained but that retention has been accommodated as part of the otherwise overall subdivision preparation proposals for which consent have been given.
As the High Court made clear in Shire of Perth v O'Keefe (1963) 110 CLR 529, it is necessary to identify the purpose that is the end for which land is proposed to be used. More recently, as Preston CJ said in Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 in planning law, a use must be for a purpose. His Honour observed, at [33]: "The fact that the nature of the uses of different components or parts of the development may vary is not necessarily of importance."
In this instance, approaching characterisation at the "necessary level of generality" identified by His Honour in Chamwell (at [36]) and doing so in the common sense and practical way as His Honour commented in Chamwell (at [45]), it is clear to me that the vegetation clearing for which consent is sought in these proceedings within the footprint of the development areas in Precincts 1, 2, 7 and 8 and on the orphan allotment in Precinct 3 can only be being sought for a combination of the purposes set out in condition 1.1.A of the 2006 development consent. Those purposes being, in a combination not needing to be quantified, in these proceedings:

Housing
Open space
Landscape streets and access paths
Utility services.

Thus properly characterised, the clearing is permissible and is capable of being given consent in these proceedings.
The second aspect of the Council's resistance to this element of the application was that granting consent (if permissible - as it is) would be premature and that it would be more appropriate, in a planning context, to defer consideration of any clearing applications until a detailed precinct or sub-precinct subdivision plan was subject of a specific development application to the Council.
To a considerable extent, this proposition plays little functional part in my determination. There are two reasons for this. First, s 80A(1)(b) of the EP&A Act will be available to the Council if this clearing is to be approved. The provision reads: 80A Imposition of conditions (1) Conditions - generallyA condition of development consent may be imposed if: (a) …, or (b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or ….
The ability to modify any approval for broad scale clearing of the nature sought will necessarily arise because Lend Lease has agreed to a condition of any development consent arising from these proceedings that will prevent any such clearing at any location within Precincts 1, 2, 7 and 8 and on the orphan allotment in Precinct 3 taking place until after a relevant detailed subdivision layout has been approved by the Council. Such a condition will preserve to the Council the ability to negotiate with Lend Lease about the retention of vegetation. Such a position is not a futility as the plans for Greenbridge East Stages 1 and 2 demonstrate where vegetation retention has been agreed to between the Council and Lend Lease as part of each of the development consents for these two stages of Greenbridge East.
Lend Lease, on the other hand, wishes to obtain certainty for its proposed vegetation clearing whilst accepting the proposition that such clearing will be subject to further detailed consideration at subdivision layout application stage.
In light of the extensive pre-trial and during trial ecological consideration of issues that would potentially be considered at a later time but have been dealt with to exhaustion (and agreement) between the experts in these proceedings, Lend Lease seeks certainty for vegetation clearing in circumstances where there are no longer any contentions pressed by the Council in these proceedings proposing the retention of any elements of the vegetation within the development footprint (except for the windrow in Precinct 8 dealt with below).
Given the extensive nature of the ecological evidence in these proceedings and the agreement of the witnesses that there was no impediment to such a clearing approval, I am satisfied that it is not unreasonable to grant certainty to Lend Lease in the fashion sought. Such approval will be subject to the timing protection that the other consent conditions will make available to the Council if it wishes to seek any vegetation retention elements at the time of any detailed subdivision proposal assessment. Such approval is consistent with the objective of the EP&A Act for the orderly development of land.

[18]

The windrows in Precinct 8

As part of the process that underpinned the granting of the 2006 development consent (a process that commenced with the initial acceptance by the then Minister for Planning that the Bingara Gorge site was appropriate to be considered for residential development), an ecological assessment report was prepared by Winning & King. Part of that assessment was consideration of what vegetation (if any) should be retained if residential development were permitted to occur. In this report is a map that shows the nature of the vegetation that was located on the site at that time. That map identified two vegetated elements in the eastern portion of the site that it described as windrows. A copy of that map is reproduced below with the addition, by me, of the red marking identifying the rows of trees described as the windrows:
This assessment concluded that it was appropriate to require retention of these windrows. As a consequence, in the 2006 development consent, a condition was imposed to do so. That condition was in the following terms: 10.7 The two windrows running north-south along the western spur of the site shall be retained.
Since that time, two practical developments have taken place that now require consideration as to whether or not such a condition should be attached to any development consent that might arise from the development application that is the subject of these proceedings. The two matters are: 1. First, the Council has granted development consent for a detailed subdivision layout for the first stage of residential development in Precinct 9. This subdivision layout, known as Greenbridge Stage 1, shows the western of the windrows being preserved, whilst the eastern windrow is punctuated by a series of driveways leading to residential allotments created in the space between the two windrows. Tendered in the proceedings was a conceptual plan for subdivision of Precinct 8, a conceptual plan which also showed, relevantly, the actual approved subdivision layout in Precinct 9 to which I have referred above. This plan shows that which has been approved as an acceptable protective residential development basis for the windrows in Precinct 9, together with a conceptual layout in Precinct 8. This conceptual layout envisages that the northern end of the more northward-extending windrow (the eastern windrow) might be removed entirely for residential development and for the construction of a small portion of an access road from Precinct 8 to Precinct 7; 1. Second, the construction of the golf course and its surrounding retained curtilage means that, for access from Precinct 8 to Precinct 7, there is a pinch point through which a road must be constructed. This pinch point was readily discernible during the course of the site inspection.
Both these aspects are readily seen on the concept plan tendered in support of Lend Lease's proposition that the general clearing application for which it seeks consent should encompass clearing of the windrow in Precinct 8. A copy of that plan is reproduced as Appendix 2 to this decision.
I have earlier set out the terms of s 80A(1)(b) of the EP&A Act and discussed how that provision can be used to modify the detail of an earlier development consent as part of the approval of some subsequent consent. In that context, I explained how that provision provided an appropriate protective mechanism for the Council to ensure that subsequent detailed precinct or sub-precinct subdivision layout plans would be required to retain selected vegetation that the Council might consider important in the context of the particular detailed design. That was, as earlier explained, expressly in the context where the Winning & King report did not identify any vegetation (other than the windrows here being discussed) as warranting specific nomination for retention.
However, with respect to the windrows, Winning & King have nominated them, specifically, as desirable for retention and, as a consequence, the Council had included the earlier quoted condition in the 2006 development consent.
If such a condition were to be replicated in any consent coming from this development application, Lend Lease would still have available to it the provisions of s 80A(1)(b) to seek to modify that condition at the time of lodgement of any detailed subdivision application for Precinct 8.
As can be seen from the plan in Appendix 2 (a plan which I accept is but a very preliminary, indicative concept layout), such a plan would have a significant impact on the northern elements of the eastern windrow, not only for the purposes of road construction from Precinct 8 to Precinct 7, but also for the development of residential allotments. This concept shows no residential allotment layout responding to that element of the windrow in the sensitive design fashion that has been adopted in Precinct 9.
Whilst I appreciate that that which is shown in Appendix 2 is intended merely to be for illustration purposes only, it does demonstrate why, I am satisfied, that any interference with the windrow in Precinct 8 should be required to be dealt with at the time of consideration of a detailed subdivision proposal with, effectively if not legally, replication of the condition contained in the 2006 development consent creating a presumption in favour of maximising preservation of the windrow.
It is not appropriate for me to speculate, in these proceedings, on what such a design might incorporate and whether or not (and if so, to what extent) removal of some part of the windrow might be appropriate. However, incorporation of a condition as proposed by the Council will ensure that there is an appropriate focus on this point at the time of consideration of such a detailed subdivision application. As a consequence, the Council's currently proposed condition is appropriate in replicating the constraint imposed in the 2006 development consent.

[19]

Conclusion

I have concluded that: 1. As a consequence of the agreed position that construction of the combined cycleway/pedestrian paths through the environmentally sensitive lands is appropriate at the locations for which consent is sought in these proceedings, I am satisfied that, on balance, cl 7.2(4) of the 2011 LEP does not stand as a barrier to approval of the additional width that would permit that which is to be built to be constructed to the standard of a fire trail. I have reached this conclusion because the assessment mandated in cl 7.2(4)(a) has been rendered inapplicable by the agreed acceptability of the first construction intrusion along these corridors. I am satisfied on the basis of the Cardno plans (particularly having regard to the long and cross-sections) that the impact of the additional width will be minimised; 2. Considering that the proposed clearing for which consent is sought is not to be undertaken except in the context of the approval of a precinct or sub-precinct subdivision approval being granted, I am satisfied that the proper characterisation of the purpose to be served by such clearing is for purposes for which, amongst other things, the 2006 development consent permits the land within the development footprint engaged in these proceedings to be used; 3. Applying a proper characterisation analysis, I am satisfied that the purpose to be served by the land clearing for which consent is sought is the residential development of the lands proposed to be cleared. The clearing is not to be characterised simply as land clearing per se but merely an ancillary activity for the use of the land for a residential purpose; 4. As a consequence, properly characterised, the clearing is permissible and, in light of the timing control given effect by the agreed conditions of consent, can be approved as appropriate to give certainty to Lend Lease in a fashion consistent with the broad objective in s 5 of the EP&A Act for the orderly development of land; 5. There is nothing in either of the foregoing conclusions that is inconsistent with the 2006 development consent and thus there is no transgression of the provisions of s 83D(2) of the EP&A Act; 6. Finally, I turn to the question of whether the condition concerning the preservation of the windrow to the north of Precinct 9, and within Precinct 8, should be permitted to be included within the clearing for which I am satisfied it is appropriate to grant consent. It is clear from the Winning & King plan that formed part of the basis in the planning trail that led to the granting of the 2006 development consent that there was an express intent to preserve the two windrows in the eastern portion of the site and that that intention included the element within Precinct 8; 7. Condition 10.7 of the 2006 development consent was inserted to ensure their retention. Lend Lease will have s 80A(1)(b) available to it when it comes to design the specific subdivision layout for Precinct 8 to consider design options that the Council may consider are consistent with the desired outcome of vegetation retention. Such a design outcome has been proposed for the residential development in the vicinity of these windrows in Precinct 9, demonstrating that the Council is prepared to contemplate an appropriate design outcome; and 8. I am satisfied that, under these circumstances, retention of a condition protecting this vegetation, and removing it from the ambit of any general clearing approval (in the same fashion as had been included in the 2006 consent), is the appropriate outcome.

Lend Lease Communities (Wilton) Pty Ltd v Wollondilly Shire Council

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