Absolute waterfront sites on Sydney's waterways are highly prized, but, when combined with steep rugged topography and bushland, opportunities for development may be severely constrained, both by the physical nature of the land and by planning restrictions. Access through such a site may pose challenges for residents and their guests.
This case is about a proposal from the applicant, Mr Mandile, to address an access problem within such a site. The site, within the suburb of Grays Point on the shores of Port Hacking, is situated at the eastern end of Mansion Point Road. The site has an area of 1072.6m2, with its long axis orientated east-west and is of a truncated wedge shape, with a southern boundary of 52.07m, a western boundary of 15.24m, a northern boundary of 48.93m and a curved eastern boundary of 26.80m following the mean high water mark. There is a fall from west to east of approximately 20m.
To the south, there is another residential lot with similar topography. To the north is an undeveloped council road reserve which is largely bushland, but with some encroachments. On the site, there are currently, from west to east, a studio and garage, fronted by a car turning and parking area, a two storey dwelling and a boat shed with slipway, jetty and pontoon. The principal private open space is a level lawn area, below the residence and extending to the waterfront.
Mr Mandile is seeking permission to install an inclinator running from the existing car parking area in front of the garage at the top of his property down to the boat shed and principal private open space at the waterfront. Existing access down the length of the property is by way of steps and steep paths. Mr Mandile has indicated in a letter to Council (reproduced in Exhibit B following page 39) that "[t]he only reason for wanting to have this inclinator is that we want to be able to stay here for as long as possible into our old age." The construction of an inclinator would, according to the applicant, facilitate conveying of shopping to the residence, the movement of wheelie bins and garbage to the bin area, and would enable garden equipment, such as mowers, to be moved around the site.
The development application is for installation of an inclinator, and the appeal against Council's refusal of the application is in Class I of the Court's jurisdiction. In the submissions from the neighbour, and in the applicant's Statement of Facts and Contentions in Reply (Exhibit B), a number of assertions and allegations were made about what were said to be unauthorised structures or uses of parts of the two properties - some of the neighbour's statements received at least tacit support from the respondent. Whether or not there is substance to any of the claims is not a matter for consideration in these Class I proceedings, and if Council were to pursue them it would possibly require separate actions in different areas of the Court's jurisdiction. The only claim which could have any bearing on the current matter is the alleged use of the upper floor of the boat shed as accommodation, as that could affect the number of people using the inclinator and the frequency of use. However, although this issue was raised by both the neighbour and the respondent, no evidence was presented, and the applicant strongly denied regular use of the space, but conceded that there was very occasional use by grandchildren. There was no evidence as to whether this level of use would affect the number of trips which would be made by the inclinator.
Construction of inclinator as a solution to access on very steep blocks is not uncommon in the Sydney region, and in Exhibit B (at attachment C, pages 34-37) the applicant has assembled images of inclinators at various properties in the general neighbourhood. Not all of these are directly comparable to what is proposed, but at least at first glance they suggest there is nothing particularly unusual about the proposal. Given the relatively low cost and small scale of the work proposed, it is perhaps understandable that Mr Mandile (letter to Council, in Exhibit B behind page 39) 'had no idea that such a simple project would require so much detail'.
However, the proposed construction of an inclinator is for a structure for which approval is required. In deciding whether or not approval should be granted, the consent authority is to apply the relevant planning law. Even what might initially seem straightforward matters can give rise to issues of some complexity.
The matter commenced on site as a mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (the LEC Act). Present were the applicant, Mr Mandile, his legal representative, Ms Saw, and his experts, and Council's solicitor, Ms Amy, and Council's experts. Also present were Mr and Mrs Steele, the neighbours in the adjoining property to the south, who had made a number of written submissions.
Mr Steele spoke to his submissions, and then we observed the position of the proposed upper stop of the inclinator from the bedroom on the upper floor, and the kitchen on the floor below of the Steele residence. The Steeles' residence is close to the boundary with the Mandiles' property. The Steeles' principal concern from those locations was with noise and disturbance, not so much from the inclinator itself, which is an issue that could be addressed through conditions, but from noise of passengers congregating at the stop, and from the loading and unloading of the inclinator car when it was used for conveying goods.
The inspection continued along the line of the proposed inclinator. There was a string line present, but it was uncertain as to what it marked (middle, edge, or some other position), nor did it indicate the height of the inclinator above ground level. The string line thus provided only the most general of indications of where the inclinator might be positioned.
Continuing along the southern boundary, the tree experts pointed out the various trees along the route, with particular attention being given to the two Angophora costata trunks (coded Trees 2 and 11 in the Tree Experts' Report - Exhibit 4).
From the waterfront, it was observed that there is a ramp from the boat shed to the water. To traverse from the proposed Stop 3 of the inclinator to the principal private space, a lawn in front of and below the residence, would involve making a step down and up from the ramp. This might be an impediment to moving garden maintenance equipment such as a mower. To overcome that difficulty, the proposal includes provision for construction of a door in the southern wall of the boat shed, just behind the eastern end. This would align with the existing door in the northern side wall, and would permit passage through the boat shed.
It was pointed out that at the highest high tides the water level is close to the top of the ramp.
A brief inspection was made of the upper floor of the boat shed.
Discussion amongst and between the parties then occurred but no agreement was possible. The Conciliation was therefore terminated under s 34AA(2)(b) of the LEC Act, and a hearing commenced in Court. The parties agreed that I could consider material discussed during the inspection. During the haring expert evidence was heard on two topics - trees and planning. Evidence on trees was provided by Mr Ian McKenzie for the applicant and Mr James Van Breda for the respondent. Planning evidence was provided by Mr John Boers for the applicant and by Mr Damon Kenny for the respondent.
[2]
The proposal
The proposal is for the construction of an inclinator 38m in length. During the site inspection, there was discussion about the possibility of slight alterations to the position of the upper station (Stop 1) of the inclinator, to further reduce impacts on the neighbouring property. The length of 38m is therefore not fixed and could be increased slightly. The twin rails of the inclinator would be 600mm apart, and the passenger car would be 900mm wide. To allow for any sideways rocking of the moving car, lateral clearance either side of the track would need to be a minimum of 225mm - so that the minimum width of the required corridor is 1350mm.
There would be three stops along the inclinator. Stop 1 at the top level would be in the car park / turning area. Stop 2 would be at dwelling level and Stop 3 would be between the boat shed and the southern boundary.
The passenger car remains horizontal so that at the bottom of the track the car would be some way above ground surface, so that to exit (or enter) the car at Stop 3 would involve either steps, or as suggested during the hearing, a ramp. It would not be possible for the mechanism to extend below its currently indicated point so that the car could stop level with the ground surface because that would involve an excavation to house the end of the cable system which would be flooded on the highest tides.
The rails would be supported on piers, and would generally be 1000mm above natural ground level (Exhibit B, page 2). A major constraint on the construction of the inclinator is that it must be straight, no curves or lateral deviations are permissible. The route from the top to the bottom of the site must be a straight line. Not only are the existing buildings on the site constraints on the position of the inclinator but so are the existing steps and paths which provide the sole current means of access and egress and must remain the principal route - the inclinator will provide a secondary access. If the inclinator were to cross steps or paths, they would need to be relocated, and the construction of replacements would involve environmental impact.
The applicant stated that other options had been considered, including along the northern boundary, and that the proposal the subject of the development application was the only option that permitted access along the full length of the property with minimal environmental impact.
The applicant did not provide any other details of the engineering specifications of the inclinator. The diagrams in Exhibit B depicted 15 evenly spaced piers. The piers shown in Exhibit B are 3 m apart, but the applicant during the hearing indicated that variation in inter pier spans would be possible. However, in the documentation for the s82A Review, the applicant stated (in Exhibit 2, Tab 2 folio 98) that the piers had a maximum spacing of 3000mm. The arborists, in their joint report, suggest that if the spans could be increased in places to at least 3.75m or 4m (Exhibit 4 at paragraph 29), the likely impacts on tree roots could be avoided, but continue that:
The span width may influence the pier size and configuration. This is outside of the tree experts' area of expertise and would require an engineering expert to confirm the specifications needed to build the structure.
No information was available about the size and depth of the excavations that would be required for the piers (other than it would be to bedrock - Exhibit 2, Tab 2, Folio 98). The arborists (Exhibit 4 at paragraph 40) indicated that there was potentially the possibility of alkaline leachate from the cement used in the pier construction affecting tree roots and that the pier holes should be lined with builders' plastic to prevent this. A requirement for this was included in Council's draft without prejudice conditions of consent (Exhibit 5).
Variation in the slope of the inclinator is apparently possible, but no information as to the degree of variation that would be permissible was provided.
The respondent argued that the inclination track should be as low as possible, subject to the clearance over rock outcrops being sufficient to avoid environmental impacts. No information was provided as to what variation in the generally 1000mm height of the tracks was possible.
The proposed/draft conditions (Exhibit 5) prepared by the respondent require a change in the design so that the inclinator terminates on the concrete paved area south of the dwelling and splay away from the southern property boundary so as to ensure the retention of Tree 6, which is a cheese tree (Glochidion ferdinandii) - a species indigenous to the locality. The termination would thus be to the north-east of the applicant's proposed Stop 2, and direct access to the waterfront would not be provided.
These conditions were strongly rejected by the applicant as they do not satisfy the objective of providing access to the lowest level of the site adjacent to the waterfront. The applicant did not seek to amend their proposal or rely on amended plans that would be responsive to the respondent's proffered draft conditions.
[3]
Chronology
Development Application No. DA 17/0346 for the construction of an inclinator was received by Council on 31 March 2017.
The application was notified by Council to surrounding and affected property owners on 28 April 2017. One submission, from the adjoining neighbour to the South, was received.
Council requested additional information from the applicant on 3 May 2017; this was provided on 12 May 2017.
Council requested from the applicant amended plans to address amenity impacts to adjoining property and non-compliances with Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015) and Sutherland Shire Development Control Plan 2015 (SSDCP 2015) on 25 May 2017. No amended plans were received.
Development Application No. DA 17/0346 was determined by refusal of development consent on 14 August 2017.
On 8 December 2017, Council received a s82A Review Application No. 17/0011 to review the determination of Development Application No. DA 17/0346. (The relevant components of s 82A of the Environmental Planning and Assessment Act 1979 (EPA Act) as was in force at the time the Review Application was lodged are now in ss 8.2, 8.3, 8.4, and 8.5 of the current version of the EPA Act). The Review Application was notified to surrounding and affected property owners. One submission, from the adjoining neighbour to the south, was received.
On 13 January 2018, the applicant submitted amended plans and elevations.
On 8 February 2018, in its consideration of Review Application No. 17/0011, the Council upheld and reaffirmed the decision to refuse development consent to DA 17/0346.
On 16 February 2018, the applicant filed its appeal against the refusal of DA 17/0346.
[4]
The planning regime
The applicable local environmental plan is SSLEP 2015. The SSDCP 2015 contains provisions relevant to the site, including in Chapter 10 Foreshores & Waterways Development - W1 Natural Waterways section 7, provisions specifically applicable to construction of inclinators. Under SSLEP 2015, the site is within Zone E3-Environmental Management. The objectives of the zone are:
Zone E3 Environmental Management
1 Objectives of zone
• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
• To provide for a limited range of development that does not have an adverse effect on those values.
• To allow development of a scale and nature that maintains the predominantly natural landscape setting of the locality and protects and conserves existing vegetation and other natural features of the locality.
• To limit development in the vicinity of the waterfront so that the locality's natural qualities can dominate.
• To allow the subdivision of land only if the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment.
• To share views between new and existing development and also from public space.
Only a limited range of types of development is permitted within the zone:
Zone E3 Environmental Management
2 Permitted without consent
Home occupations
3 Permitted with consent
Bed and breakfast accommodation; Boat sheds; Dwelling houses; Environmental protection works; Flood mitigation works; Health consulting rooms; Home businesses; Home industries; Places of public worship; Recreation areas; Roads; Secondary dwellings
4 Prohibited
Industries; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3
Construction of an inclinator is not identified as such within the list of developments permitted with consent. However, the parties are agreed that an inclinator would be permissible as being ancillary to a dwelling house.
A number of clauses in Part 6 of SSLEP 2015 are relevant to the assessment of the proposal. particular , but it is appropriate to commence at cl 6.14, which has the following objectives:
6.14 Landscaped areas in certain residential, business, industrial and environment protection zones
(1) The objectives of this clause are as follows:
(a) to ensure adequate opportunities exist for the retention or provision of vegetation that contributes to biodiversity
(b) to minimise urban run-off by maximising permeable areas on the sites of development,
(c) to ensure that the visual impact of development is minimised by appropriate landscaping and that the landscaping is maintained,
(d) to ensure that landscaping carried out in connection with development is sufficient to complement the scale of buildings, provide shade, screen parking areas and enhance workforce amenities
and applies within the E3 Environmental Management Zone (cl 6.14(2)(j)).
Clause 6.14(3) states that:
(3) The minimum percentage of the site area on land to which this clause applies that is to consist of landscaped areas is the percentage shown on the Landscape Area Map in relation to that land.
The Landscape Area Map specifies the minimum landscape area requirement for the site as 40%. Currently, the landscape area on the site is 35%.
Clause 6.14(4) provides that:
(4) Despite subclause (3), development consent may be granted to development even though the percentage of the site consisting of landscaped areas is up to 5% less than the percentage shown on the Landscape Area Map in relation to the land if:
(a) there is a tree on the site to which clause 5.9 applies, and
(b) the consent authority is satisfied that:
(i) the tree makes an important contribution to the character or amenity of the locality, or
(ii) the species of tree is indigenous to the local area and listed as a threatened species under the Threatened Species Conservation Act 1995, or
(iii) the tree is important habitat for native fauna, or
(iv) the tree is important to the maintenance of biodiversity in the environment of the locality, or
(v) the tree is part of remnant bushland, or
(vi) the tree forms a notable visual element in the landscape of the locality, or
(vii) the tree is botanically unique in or rare to the local area (whether the species of tree is native or exotic).
This would only come into play if there is a tree to which cl 5.9 of SSLEP 2015 applies. Clause 5.9 was, in effect, the Council's Tree Preservation Order. By virtue of the Standard Instrument (Local Environmental Plans) Amendment (Vegetation) Order 2017, cl 5.9 was repealed and was replaced by the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (SEPP), which under cl 5(1) applies to land in the Sutherland Shire within the Zone E3 - Environmental Management. The repeal of cl 5.9 renders cl 6.14(4) inoperative and not something to be taken in to account. SSDCP 2015 Chapter 39 section 4.2.2 identifies the trees and vegetation for which application for permission to clear can be sought from Council. Clause 6.14 does not invoke any provisions in SSDCP 2015 to substitute for the former cl 5.9.
The Council raised four Contentions, which were considered by the planning experts in their joint report and oral evidence. Contention 1 had a number of particulars (a) - (e), relating to environmental impact and tree removal. Contention 2 raised setbacks and amenity impacts. Contention 4 was matters raised by the objector not otherwise subsumed in Contentions 1 - 3. The planning experts agreed that those parts of Contention 4 had been resolved and were non substantive.
Contention 3 argues that the proposal does not comply with the minimum 40% landscaped area development standard set by cl 6.14(3). This matter was the subject of a written cl 4.6 variation request which will be considered separately, as it raises a condition precedent to the exercise of power to grant the appeal.
[5]
The Clause 4.6 Variation Request
The respondent in its Statement of Facts and Contentions (Exhibit 1) in Contention 3 - Landscaped Areas states that:
"The proposal fails to comply with the minimum 40% landscape area development standard pursuant to clause 6.14(3) of SSLEP 2015."
The applicant made a written request to the s82A Review that pursuant to cl 4.6 of SSLEP 2015 the development standard in cl 6.14(3) of SSLEP 2015 be varied. This request was refused and the original refusal of the development application was confirmed.
In this appeal the applicant, in Annexure C to the Joint Experts' Report of the Planners, makes a request to vary the development standard in cl 6.14(3) of SSLEP 2015 in the same terms as were made to the s82A Review. Annexure C is reproduced below:
If the request is not upheld, then the appeal must be dismissed; only if the request were upheld would I have power to grant the appeal. Success on the application to grant variation in the standard would not of itself be determinative of the appeal. Consideration of the other contentions on the merits might still result in dismissal.
Clause 4.6 provides that:
4.6 Exceptions to development standards
(1) The objectives of this clause are as follows:
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.
A preliminary matter to be established is whether cl 6.14(3) is a development standard. Development standard is defined in s 1.4 of the EPA Act:
"development standards" means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:
...
(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment, …
Clause 4.16(3), setting a requirement for landscaped area, satisfies the definition, and is not a clause 'expressly excluded' from the operation of cl 4.6(2).
The existing landscaped area of the site is 35%, which is below the 40% requirement.
The application is not seeking to modify the existing consent: it is a standalone development application to which cl 6.14(3) applies.
In the applicant's application for a s82A review, (in Exhibit 2, Tab 2, folio 105), the landscape area gains and losses were calculated as follows:
Demolition of existing shed ±10m2
Landings for stops = 2 x 1m2 = -2m2
15 ground pads for piers (300 x 700mm) = approx.-3m2
Net gain = 5m2
The effect in terms of landscape area of the proposal is essentially to maintain the status quo. The landscape area would still be below 40%.
Preston CJ has set out the correct approach necessary to determining a cl 4.6 variation request in Initial Action Pty Ltd v Woollhara Municipal Council [2018] NSWLEC 118 at [5] - [29], building on his earlier judgment in Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7.
Clause 4.6 sets out a series of gateways which must be negotiated before a cl 4.6 variation request could be granted.
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
The cl 4.6 variation request is in writing, and I have considered it. It asserts that strict adherence to the standard is unreasonable and unnecessary, but whether it goes beyond that and actually 'seeks to justify' is more doubtful., but I am prepared to give the applicant the benefit of the doubt and accept that that the hurdle of cl 4.6(3)(a) is cleared.
It is even more difficult to perceive demonstration of sufficient planning grounds to justify contravening the development standard, but there has been a written request which I have considered.
I am unable to grant a development consent unless I am satisfied that cl 4.6(4)(a) is met:
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
The written request fails to address the requirements of cl 4.6(4)(a)(i). Under the heading 'Comment', the applicant relies on the opinions expressed by a council officer during the original assessment process of DA 17/0346 (an application which, after the overall assessment, was refused). The opinion of the officer was part of a more general assessment of trees; it was not specifically addressed to consideration of cl 6.14(3). Mr Boers' opinion that there would only be a single indigenous tree removed is factually incorrect as is shown in the agreed joint report of the arborists (Exhibit 4). To invoke the previous opinion is not to present an argument that there are sound planning grounds to justify contravention of the development standard. Reference to a claimed previous finding assessment of issues raised by cll 6.4, 6.5 and 6.7 is irrelevant in the context of a request to vary cl 6.14(3)
Clause 4.6(a)(ii) requires that I be satisfied that the proposed development is in the public interest because it is consistent with the objectives of the standard and the zone. The request reproduces the objectives of the standard, but does not adequately address the question of consistency. The zone objectives are not raised at all, so there is no evidence that consistency with them has been addressed.
The applicant in the request argued that strict adherence to the development standard would pose a significant access disadvantage to the residents. The request asked for consideration of the Disability Discrimination Act 1992 (Cth). This is Commonwealth legislation, not State, and while I do not underestimate its importance, its applicability in the present case was not explained. There was no mention of any particular provision of the Act which should be applied, neither was there any cross reference to section 4.7 of SSDCP 2015.
The written request is completely inadequate in its failure to provide sufficient planning grounds to justify a contravention of the development standard in cl 6.14(3), and must therefore be dismissed. As a consequence, I have no power to grant the appeal which must also be dismissed. Given that the proposal has no or negligible effect on the landscape area, this may seem to be a perverse outcome, but it is the inevitable consequence of the matter being for a new development and not an amendment to an existing approval, the wording of cl 6.14(3) and the applicant's failure to present an adequate case to vary the operation of cl 6.14(3).
[6]
Adequacy of information
My finding in relation to the cl 4.6 variation request means that I have no jurisdiction to make determinations in relation to Contentions 1 and 2, which raised a number of merit issues in relation to other clauses of Part 6 of SSLEP 2015. It is therefore unnecessary and inappropriate for me to analyse those issues or discuss the evidence presented by the experts.
However, I feel it is appropriate that I indicate that the adequacy of information provided in relation to the other issues in contention between the parties was of concern to me, and that even if the cl 4.6 variation request had been granted the adequacy of information on other matters would have been grounds for refusal. Ms Saw, for the applicant, argued that strict adherence to the requirements of SSLEP 2015 and SSDCP 2016 would be an unnecessary and onerous requirement on the applicant.
However, the site is within Zone E3 and is mapped as Greenweb Core. The zone objectives and the objectives of cll 6.5, 6.8, 6.9 and 6.14 demonstrate a strong public interest in environmental protection, particularly of native vegetation and landscape features, and the applicant has not demonstrated that the proposal is consistent with the objects and requirements of SSLEP 2015 or ssdcp 2015. On the respondent's case, the applicant's request does not demonstrate that the applicant has adequately addressed the issues raised in SSLEP 2015 and SSDCP 2015. Against this, the applicant argues that the proposal will have negligible impact, and that to provide extra information would be disproportionate given the nature and size of the proposal, imposing an unreasonable and unnecessary burden on the applicant. This raises the question as to what level of detail would it be reasonable to require an applicant to provide?
The adequacy of supporting and explanatory information accompanying a development application is essential in any matter. Moore J has recently observed that "adequately detailed plans are a necessary prerequisite to the exercise of power to grant consent to a proposed development (and are expressly required by Schedule A of the Class 1 Practice Note)": Modog Pty Limited v North Sydney Council [2018] NSWLEC 120 (Modog) at [17] (and see also [63]). Modog was a much larger proposal - a residential flat development - than the present matter, but the prerequisite is scale independent. What is required is material which is 'adequately detailed' for the circumstances of each case. What is adequate will depend on the circumstances of each individual case and does not mean that multi volume engineering reports would be required for even relatively small matters - rather the information should be appropriate to resolving the contentions at issue.
Ms Amy drew attention to two cases, both involving bushland in Sutherland Shire: Hamilton v Sutherland Shire Council [2012] NSWLEC 1015 (Hamilton), and Bazzi v Sutherland Shire Council [2017] NSWLEC 1603 (Bazzi). In both cases the lack of relevant data was a major issue. Ms Saw argued that both cases could be distinguished from the present case in that Hamilton involved an appeal against an order to retain a single dead tree (an Angophora costata), whereas Bazzi was a case involving a proposed subdivision of a relatively large block of bushland. In Hamilton, the major contention was whether or not the tree had habitat value and a major issue in both cases was the lack of appropriate fauna and habitat studies. The importance of bushland (including rock outcrops as well as vegetation) as habitat looms large in SSLEP 2015, and relevant information is required to inform the decision making process.
The wording of SSLEP 2015 and SSDCP 2015 does not provide a great deal of guidance as to exactly what are the values of importance or how an application for development (in particular small scale development) should address habitat value and, in particular, fauna issues. Nevertheless, what is stressed in both Hamilton and Bazzi is that the information provided should be more than nothing. I agree with Ms Saw that to require the expense of a full blown fauna survey would be excessive. However, at the very least I would have anticipated information on the distribution of rock outcrops within the route of the track, whether pier construction would be required in any of the outcrops, and the clearance between tracks and outcrops, with a discussion of whether there were likely to be consequences on organisms utilising rock outcrops, and whether the landform would be affected. In the case of loss of native trees greater justification of why the impacts could not be avoided would be desirable, and where, as in this case, a relatively large native tree with considerable useful life expectancy would be removed, more analysis of the ecological and visual consequences would be desirable.
[7]
Conclusion
As a consequence of the above, the orders of the Court are:
1. The cl 4.6 variation request is dismissed;
2. The appeal is dismissed;
3. Development Application No. 17/0346 for construction of an inclinator is determined by refusal;
4. The Exhibits may be returned.
…………………….
Paul Adam
Acting Commissioner of the Court
[8]
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: 05 September 2018