Minton v Shoalhaven City Council

Land and Environment Court (NSW)|2024-06-13

Mark Minton (Second Applicant) Shoalhaven City Council (Respondent) Representation: Counsel: N Eastman SC (Applicants) A Seton (Solicitor)(Respondent)

Solicitors: Norton Rose Fullbright (Applicants) Marsdens Law Group (Respondent) File Number(s): 2023/346887 Publication restriction: No

The Site and evidence

As I mentioned above, the Site is mapped under s 10.3 of the EPA Act as being bushfire prone land, comprising partly of Vegetation Category 1 and partly of Vegetation Category 2.
Part of site is identified as containing "biodiversity values" on the Biodiversity Values Map made under the Biodiversity Conservation Regulation 2017. 1. the part of the site mapped as containing "biodiversity values" on the Biodiversity Values Map made under the Biodiversity Conservation Regulation 2017, is the most northern part of the site, separated from the proposed dwelling location by a distance of approximately 360 metres.
The site contains areas marked "Biodiversity - Significant Vegetation" and "Biodiversity - Habitat Corridor" on the Terrestrial Biodiversity Map (Sheet BIO_0013) as referred to in cl 7.5 of SLEP. 1. the part of the site identified as "Biodiversity - Significant Vegetation" on the Terrestrial Biodiversity Map (Sheet BIO_0013) as referred to in cl 7.5 of SLEP, is the most north-eastern part of the site, separated from the proposed dwelling location by a distance of approximately 460 metres; 2. the Terrestrial Biodiversity Map (Sheet BIO_0013) as referred to in cl 7.5 of SLEP, was amended by SLEP (Amendment No 50) on 15 September 2023 to exclude from the "Biodiversity - Habitat Corridor" mapping the area where the dwelling and garage are proposed.
The Site contains a watercourse marked as "Watercourse Category 2" on the Riparian Lands and Watercourses Map (Sheet WCL_0013) referred to in cl 7.6 of SLEP. 1. the site is mapped on the Riparian Lands and Watercourses Map (Sheet WCL_0013) as containing a "Watercourse Category 2".
The parties rely on the written expert evidence and did not cross examine any of the authors of the following joint expert reports which are in evidence: 1. Joint Expert Planning Report prepared by Ella Coleman, Consultant Planner for the Applicant and Peter Woodworth, Planner for the Respondent dated 28 May 2024 (Ex 3) (JER Planning); 2. Joint Expert Bushfire Report prepared by David Cannon for the Applicant and Dr Graham Douglas for the Respondent dated 28 May 2024 (Ex 4) (JER Bushfire).

Notice of Motion

During the tender of the Applicant's evidence, the Applicant moved on its Notice of Motion filed 4 June 2024 seeking to amend the Proposed Development and read the affidavit of Anneliese Catrina Korber Moriarty which at par 9 listed and annexed five documents which were ultimately tendered and marked Exhibit C.
The Respondent did not object and the following orders were made on 12 June 2024: 1. The Court exercising its jurisdiction pursuant to s 39(2) of the LEC Act, as consent authority approves pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the application made by the Applicant to amend its development application DA22/2325 made by Notice of Motion filed 4 June 2024, and leave is granted to rely on the following documents: 1. Addendum to the Statement of Environmental Effects prepared by Ella Coleman of Ethos Urban dated 21 May 2024 2. Letter dated 13 May 2024 from owner of Lot 217 DP 751255 consenting to the making of development application DA22/2325 3. Plan titled "Proposed Access Road and Detail", prepared by SET Consultants dated 20 May 2024 4. Flora and Fauna Assessment prepared by Garry Daly of Gaia Research Pty Ltd dated May 2024 5. Plans titled "Proposed Access Road" sheets 1-5 dated 3 June 2024.
The Applicant's case is that the development application should be approved because the Site is suitable for the Proposed Development for the following reasons listed in the Amended Statement of Facts and Contentions in Reply filed 21 May 2024 (Ex D) (ASOFAC in Reply): "a. The site has been used for the purpose of a dwelling house for approximately 50 years without any adverse environmental impacts; b. Occupation on the site continues through the use of the Recovery Pod issued to the Applicant post the 2019-2020 bush fire event; c. The proposed development conforms to the specifications and requirements of PBP 2019; d. No vegetation clearing is required to accommodate the replacement dwelling, the garage or the required APZs or otherwise; e. There is legal and practical access to the site from Duffys Lane via a Right of Carriageway and the proposed development includes upgrading this access to conform to the requirements and specifications of PBP 2019; f. Electricity from the grid is available at the south-eastern boundary of the site; g. The previous dwelling on the site was, and the amenities associated with the Recovery Pod currently on the site are, connected to an existing on-site wastewater disposal system which has been approved by the Respondent, and additional information will be provided to demonstrate that wastewater can continue to be adequately disposed of onsite for the proposed development; and h. The proposed development is consistent with the rural character of the locality and the general pattern of development along Duffys Lane."
The question as to whether the Site is suitable for the Proposed Development will ultimately be determined by the resolution or otherwise of the three matters identified above at [11]. I will now deal with those matters.

Whether the Site is suitable due to the lot size of the Site not complying with the minimum lot size development standard (cl 4.2D, SLEP)

Contention 2 of the ASOFAC provides that the development application must be refused because the Site does not have at least the minimum lot size shown on the Lot Size Map as required by cl 4.2D(3)(a) of SLEP and the written request made pursuant to cl 4.6 of SLEP seeking to justify the contravention is inadequate.
The Applicant relies on a written request pursuant to cl 4.6 of the SLEP prepared by Ella Coleman of Ethos Urban Ref: 224006, Version 2.0 dated 9 April 2024 (Ex B, Tab 6) (Written Request) seeking to justify the contravention of the minimum lot size development standard in cl 4.2D(3)(a) of the SLEP.
The Respondent submits that the Court is unable to reach the positive states of satisfaction required by the terms cl 4.6 of the SLEP primarily because premise of the Written Request is fundamentally flawed because it relies on the dwelling which existed prior to the bushfire and where it cannot be demonstrated that that dwelling was lawfully erected. The Respondent submits that had the dwelling been lawfully erected, the Applicant would have been able to rely on the terms of cl 5.9 of the SLEP.
The Applicant submits that cl 5.9 SLEP does not apply and does not assist in this matter. This is precisely why the Applicant relies on the Written Request (see Assessment Report summary where the only option is cl 4.6). The Applicant also relies on a legal argument regarding gradients of unlawful use by the use of an octopus analogy. I will come back to the relevance of past unlawful use and the differing approaches taken by the parties to this at [28] and at [48].
The Court is assisted by the planning history of the Site as contained in the following documents: 1. Letter from the Respondent to the Applicant dated 19 December 2022 providing an initial assessment and setting out some history since 1960s (Ex 2, Tab 2) 2. Assessment report dated 19 December 2022 (Ex 2, Tab 14) 3. Department of Planning and Environment letter (Ex 2, Tab 12) 4. JER Planning (Ex 3) 5. ASOFAC (Ex 1)
In relation to the content of the Written Request, the Respondent relies on the evidence of Mr Woodworth in JER Planning (Ex 3).
At the outset the Applicant invites the Court to approach the matter from the context of the gradients of lawful within the statutory scheme considering the administrative law perspective (distinction between void and voidable - Class 4 proceedings, s 9.45 EPA Act, F Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306) and the non-administrative law aspect being civil enforcement where there is contended unlawfulness. The Applicant uses an octopus analogy to describe the "multiple octopi arm pathways in civil enforcement proceedings to achieve the same result" (Transcript 13 June 2024 p 17 at 43). The five pathways to deal with unlawfulness which are identified by the Applicant are as follows: 1. Development Control Order (Part 9, Div 9.3, EPA Act); 2. Building Information Certificate (Part 6, Div 6.7, EPA Act); 3. Development Application for use (Part 4, EPA Act); 4. Class 4 proceedings, restraint etc of breaches of the Act, pursuant to s 9.45 in Div 9.5 Civil enforcement proceedings (discretion Warringah Shire Council v Sedevic (1987) 10 NSWLR 335); and 5. Class 5 criminal prosecution (Div 9.6 EPA Act).
Ultimately, the Applicant seeks to persuade the Court not to go down the path that Mr Woodworth takes in the JER Planning for the reasons in the Written Request and in the context of the statutory scheme identified above.
The Applicant agrees, or concedes as follows: 1. "I cannot demonstrate that there was lawful approval for the construction of the dwelling in 1975 or its rebuilding." (Transcript 13 June 2024, p 15 at 45). 2. "I don't disagree with any of the assessment that you see in Mr Woodworth's review of material, nor in, I think it was tab 20 of exhibit 2 … So we don't ask you to resolve any disputed fact on the history" (Transcript 13 June 2024, p 15 at 48 and p 16 at 6); 1. "So in the gradients of unlawfulness, it is accepted that there is no express consent to carry out the works for a house that ultimately burnt down, and it's accepted that there is no express approval for use for residential purposes, but the Council hasn't done anything about it despite clear awareness, and indeed, getting to the point of issuing a notice of intention, but doing nothing about it." (Transcript 13 June 2024, p 18 at 16). 1. "the reason I'd ask you to look at Mr Woodworth's evidence is because I want to look at the differences between us on why his evidence is that satisfaction couldn't be reached by the Court, compared to what Ms Coleman's done in this document." (Transcript 13 June 2024, p 16 at 18).
I come back to the concept of the relevance of past unlawful use at [48]. I will now consider the Written Request in accordance with the terms of cl 4.6 of the SLEP being the provisions applicable to the Proposed Development as included in the Respondent's Bundle of Documents (Ex 2, Tab 18, folio 143) and for completeness I reproduce in full as follows: 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, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone C2 Environmental Conservation, Zone C3 Environmental Management or Zone C4 Environmental Living if - (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. Note - When this Plan was made it did not include all of these zones. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following - (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (ba) clause 4.1E, to the extent that it applies to land in a rural or conservation zone, (bb) clause 4.2B, (c) clause 5.4, (caa) clause 5.5, (ca) clause 6.2, (cb) clause 7.25, (cc) clause 4.1H.
The Written Request seeks to justify the contravention of the development standard in cl 4.2D of the SLEP by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case by demonstrating that the objectives of the development standard in cl 4.2D are achieved notwithstanding the Site area being less than the minimum lot size permitted by the development standard (cl 4.6(3), SLEP). This is the most commonly invoked way of establishing that compliance with a development standard is unreasonable or unnecessary: see Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ('Initial Action') at [17], and is often referred as the first test in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ('Wehbe') which at [42] provides as follows: "The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard".
Further, in Wehbe at [43] the first test is explained as follows: "The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served)."
One way of demonstrating consistency with the objectives of a development standard is to show a lack of adverse amenity impacts (see Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7 ('Micaul') at [34]) (Preston CJ in Initial Action at [94]).
The objectives of the minimum lot size development standard in cl 4.2D(1) of the SLEP are as follows - (a) to minimise unplanned rural residential development, (b) to enable the replacement of lawfully erected dwelling houses in certain rural, residential and conservation zones, I to control rural residential density affected by historical subdivision patterns in Zone R5 Large Lot Residential.
It is agreed that the third objective is not relevant because the Site is not within the Zone R5 Large Lot Residential. Accordingly only objectives (a) and (b) are relevant to the Proposed Development and are considered below.

Does the Written Request demonstrate that the Proposed Development achieves the first objective, to minimise unplanned rural residential development (cl 4.2D(1)(a), SLEP)?

The Written Request identifies that the 'Shoalhaven 2040 Our Strategic Land-use Planning Statement' (September 2020) as providing a strategic vision for the Shoalhaven and identifies Priority 8, 10 and 11 of this document as relevant to the land. The Written Request provides at p 8 as follows: "The distinction between planned and unplanned in reference to "minimise unplanned rural residential development" should be understood in context of the strategic planning framework of the area, as well the legislated environmental planning controls pertaining to a site as a result of the strategic planning. Based on the Shoalhaven 2040 [Our] Strategic Land-use Planning Statement (September 2020), the relevant Planning Priorities identified for existing rural lands are as follows: Priority 8: Supporting agriculture and aquaculture. Priority 10: Protecting the environment. Priority 11: Adapting to natural hazards."
Under the Shoalhaven Local Environmental Plan 1985 (SLEP 1985), the subject site was zoned partly 1(d) - Rural (General Rural) Zone and partly 7(e) Environment Protection (Escarpment) Zone. Accordingly, cll 14 and 15 of SLEP 1985 permitted the erection of a dwelling house on lots less than 40ha so long as the land was a 1964 holding. Mr Woodworth concludes that the Site is not a 1964 holding and states at par 35 of the JER Planning as follows: "Further to this point, on 24 September 1974 the Interim Development Order (IDO) was amended to impose a minimum lot size requirement of 40ha to enable the erection of a dwelling. The original unlawful dwelling appears to have been built in 1975, post the amendment to the IDO. As such, even the original unlawful dwelling which appears to have subsequently been destroyed in a fire in 1975 did not comply with the planning requirements at the time and therefore cannot be considered "planned development"."
And further at par 42 of the JER Planning, Mr Woodworth provides as follows: "the construction of both of the unlawful dwellings (the one which appears to have been constructed in 1975 and the one which appears to have been reconstructed in 1976) occurs after the amendment to the IDO which required a minimum 40ha to erect a dwelling in the zones which. DA74/3206 was refused in part because of this, however, the unlawful dwelling was erected anyway, despite the refusal. The circumstances of this case is that an unlawful dwelling was erected in contravention to the planning requirements that are and were applicable at the time and that is in direct contravention to the refusal of DA74/3206. The argument the Applicant puts forward that the construction of a new dwelling should be permitted on the basis that there was a previous unlawful non-compliant dwelling existing on the property that was in direct contravention to a refusal is unfounded."

How does the Written Request demonstrate that the Proposed Development achieves the objective of minimising unplanned rural residential development?

Firstly, by referring to the historical residential use of the Site including the current residential use, which is lawful. The Written Request accurately states at p 8 that: "if not for the catastrophic impact of the bushfire, the former dwelling would remain in place. … The dwelling house that is proposed to be replaced was destroyed by bushfire. If not for the catastrophic impact of the bushfires, the former dwelling would remain in place. The ongoing residential use is also maintained through the temporary accommodation located on the site. They're living in a Minderoo Pod and a refurbished shipping container that provide temporary accommodation following a natural disaster."
Secondly, the Written Request assesses the agricultural uses of the Site at the top of p 9, after the assessment about the nature of the agricultural uses and the conclusion in the second paragraph, which starts, "Therefore, given the site's not capable of accommodating the agricultural in line with the planned outcome", Ms Coleman concludes in the next paragraph, "It doesn't alter the landscape character or have an impact on environmental conservation", and the Applicant submits that the Court can accept that particularly with the absence of any other contention dealing with adverse impact in these proceedings (see Micaul - [34] above).
The Written Request states that "It's been utilised for 50 years for rural residential purposes, reflecting an appropriate use for the site, and it's contributed to the established landscape character", and I emphasise it is well serviced in an existing way by infrastructure to support residential uses, including electricity, water, wastewater, which further supports its established use and planned nature of its use.
The Applicant submits: "So planning also doesn't simply limit itself in this context to whether or not it is or is not permissible, but the surrounding nature of what is proposed, and its support by reference to other things that have been connected to it, such as service to infrastructure, or infrastructure services I should say." (Transcript 13 June 2024 p 20 at 13)
The Written Request at par 9 states that "the proposed use enables the delivery of what is considered the "planned" outcome, which is protecting environmental and rural landscape values."
I agree and find that the Written Request has demonstrated that the Proposed Development achieves the objective (a) of cl 4.2D and because the objective is achieved, the Written Request demonstrates that compliance with the development standard is not necessary.

Does the Written Request demonstrate that the Proposed Development achieves the second objective, to enable the replacement of lawfully erected dwelling houses in certain rural, residential and conservation zones (cl 4.2D(1)(b), SLEP)?

The Applicant concedes that they are unable to demonstrate that the dwelling destroyed by the bushfire had been lawfully erected. However, the Applicant submits in closing that an analysis of the statutory scheme reveals that there are gradients of unlawful and uses an octopus analogy to explain which I will come back to. The Applicant submits that Preston CJ in the decision of Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 "did say, well, to a degree, the objectives of controls are really telling you why they've set whatever the development standard was. So it is appropriate to look at the intention of what is meant by the controls, and the objectives do that. That it is appropriate here to look at what the intention of the objective is itself. So to have a softening of the development standard, to allow for the replacement of a dwelling that has been in existence for 50 years and utilised for residential purposes and without intervention by the Council at any stage is what we commend to you, or Ms Coleman contends to you in this written objection, meets the objective." (Transcript 13 June 2024, p 20 at 32).
Additionally, the Written Request states, on p 9, concerning objective (b) that: "the intention of the objective is considered to be met, through the replacement of a residential dwelling on a site that has been utilised for residential rural purposes for 50 years" and explains the reason for reaching this conclusion as follows: 1. The construction of the residential dwelling commenced at a time when the minimum lot size was 25 acres (approximately 10 ha) and prior to the Interim Development Order introducing the 40 ha minimum lot size in 1974; 2. There was an attempt in 1984 "to ensure the current use of the site was legal on an ongoing basis under the Shoalhaven LEP [when] Council advised the previous owner to lodge a subdivision application for a concessional lot that would secure a dwelling entitlement on the site." 3. The ongoing correspondence with Council since the construction of the residential property in 1974 demonstrates that Council has been aware that the property was being used for rural residential purposes, however no action has ever been taken to prevent its ongoing use or require its removal." (Written Request, Ex B, Tab 6, p 9). 4. "Council has previously supporting legitimising the use on the site, which is in recognition of the appropriate nature of the use" (Written Request, Ex B, Tab 6, p 10). 5. The extended time period that the site has been used for these purposes, reflects that it is appropriate to be replaced. (Written Request, Ex B, Tab 6, p 10).
In relation to the unlawful dwelling, the Respondent approaches the Written Request from the perspective of an "issue of relevance of past unlawful use to determine whether a consent should be granted or modified" and the past considerations by the Court (Transcript 13 June 2024, p 23 at 8 and 12). The Respondent refers to the decision of Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 ('Jonah') at [19], [20], [27], [31], and [32]. (Transcript, 13 June 2024, p 23).
It is my view that this is not the right approach or the right question to ask in the context of this development application because the Respondent is conflating the consideration of past unlawful use to determine whether a consent should be granted with the task of satisfying the jurisdictional prerequisite in cl 4.6 of the SLEP due to the contravention of the minimum lot size development standard and in particular to this case, the consideration of the objectives of the development standard in cl 4.2D of the SLEP. In this matter the court is tasked with considering the Written Request in order to reach the requisite state of satisfaction pursuant to the terms of cl 4.6 of the SLEP. In that regard, the consideration of past unlawful use is limited to the context of the terms of cl 4.6, in particular subcll (3)(a), (4)(a)(i) and (ii) in regards to: 1. whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and relevantly, the Written Request relies on the first test in Wehbe, namely compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard (subcll 4.6(3)(a), (4)(a)(i), SLEP); and 2. whether 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 (cl 4.6(4)(a)(ii), SLEP).
The Applicant, in reply to the Respondent's submissions, urges the Court to refer to the question Preston CJ was answering in Jonah at [34] "the Council's first submission that past unlawful use by the current owner/operator is relevant as a predictor of future unlawful use" and it was in answer to that question that Preston CJ concluded at [35] that: "in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully."
Most relevant to these proceedings, is what Preston CJ said in Jonah at [37] to [39] in relation to impacts as follows: "37 The above conclusion that mere unlawfulness of past use is not a relevant factor does not mean, however, that past use - without any consideration of its unlawfulness - cannot ever be relevant. 38 For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore, be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant. 39 Similarly, if it were to be established in this case that the inner terrace might be used for dining in the future (whether because such use is already lawful or because the Court in the exercise of its discretion declines to restrain the use although it is unlawful), the cumulative impact of that use together with the use proposed for the external terrace could properly be taken into account. Again, this is because the cumulative planning impact is a relevant matter to be considered, not because of any characteristic of the unlawfulness of such use."
The Applicant submits in reply, that Jonah is not authority for the proposition that past unlawful use is not relevant in all circumstances. The Applicant urges the Court to consider the facts in Jonah regarding the modification application relating to Jonah's Restaurant at Palm Beach, to delete the condition that allowed for outdoor eating and whether you could take into account the fact that they had been doing it anyway. "That was the unlawful use in that case and the Council there was pressing Preston CJ to take that into account whereas the Applicant in that case said that the Modification Application appeal was limited to the provisions of then s 79C, now s 4.15 of the EPA Act." (Transcript 13 June 2024, p 37 at 35).
I conclude that the approach to take here is that the relevance of the unlawful use is to be limited to the consideration of the terms of cl 4.6 of the SLEP and I find that the assessment in the Written Request is an appropriate analysis of the statutory language used in the objectives of the minimum lot size development standard in cl 4.2D of the SLEP.
This approach allows the phrase "circumstances of the case" in cl 4.6 some work to do. The Written Request expressly states that "This Clause 4.6 Variation Request therefore only relates to clause 4.2D of the Shoalhaven LEP" (Written Request, p 5).
The Applicant submits further in reply (Transcript 13 June 2024, p 37 at 1) that the Court should take into account the present residential occupation of the Site being authorised by two instruments, that deal with disaster, namely: 1. Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021, s 77(d) which provides for the installation of a moveable dwelling or associated structure on land to accommodate a person who has been displaced as a result of a natural disaster without the need for an approval pursuant to s 68 of the Local Government Act 1993, in this case the Mindaroo Recovery Pod; and 2. State Environmental Planning Policy (Housing) 2021, s 135(1)(a)(i) providing for the development for the purposes of caravan parks or camping grounds may be carried out without development consent if the site will only be used to provide temporary emergency accommodation for persons who have been displaced as a result of a natural disaster.
This present lawful residential occupation means that "firefighters would probably need to go there anyway, given that they're lawfully entitled to occupy." (Transcript 13 June 2024, p 37 at 27).
For these reasons, I am satisfied as required by the terms of cl 4.6(3)(a) and cl 4.6(4)(a)(i), SLEP, that the Written Request has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the objectives have been achieved notwithstanding the contravention of the development standard limited to the circumstances of the case as set out in the Written Request.

Does the Written Request demonstrate that there are sufficient environmental planning grounds to justify the contravention of the minimum lot size development standard?

The Written Request seeks to demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard as required by cl 4.6(3)(b) of the SLEP by listing seven environmental planning grounds. The Applicant does not rely on ground 6 and submits that "Mr Woodworth's opposition to the environmental planning grounds advanced by Ms Coleman by saying to you that they are largely because of - it's not planned, it's not lawful, there's no consent, so therefore, it's unplanned and unlawful." (Transcript 13 June 2024, p 20 at 47).
Preston CJ in Initial Action at [23] and [24] provides the following in relation to environmental planning grounds as required by cl 4.6(3)(b): "23 As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase "environmental planning" is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act. 24 The environmental planning grounds relied on in the written request under cl 4.6 must be "sufficient". There are two respects in which the written request needs to be "sufficient". First, the environmental planning grounds advanced in the written request must be sufficient "to justify contravening the development standard". The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]."
Mr Woodworth provides a response to each environmental planning ground from the Written Request in the JER Planning from par 50. The Respondent submits that the grounds listed in the Written Request are either not environmental planning grounds or are insufficient to justify the contravention of the minimum lot size development standard in cl 4.2D of the SLEP. The Respondent submits that if one ignores the previous use for residential dwelling because it was not lawfully erected, there is little left for justification on environmental planning grounds. For reasons I have already given, the approach of ignoring the previous use for residential purposes is not the right approach in the context of the Court's consideration of the provisions of cl 4.6 of the SLEP in accordance with its terms.
The Applicant submits as follows: "I think in this case, usually it's the environmental planning grounds that are primary, and the unreasonable or unnecessary are the secondaries, it may be the other way around here, but almost in a consistent vein, that if you accept the approach that we've adopted to unreasonable or unnecessary and what the objectives do, then you can accept that these are all more than sufficient environmental planning grounds." (Transcript 13 June 2024, p 21 at 8).
From Initial Action, Preston CJ states at [25]: "25 The consent authority, or the Court on appeal, must form the positive opinion of satisfaction that the applicant's written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). As I observed in Randwick City Council v Micaul Holdings Pty Ltd at [39], the consent authority, or the Court on appeal, does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b). The applicant bears the onus to demonstrate that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant's written request in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction: see Wehbe v Pittwater Council at [38]."
I now address the environmental planning grounds described in the Written Request commencing from p 10, as required by cl 4.6(3)(b) of the SLEP, as being sufficient to justify the contravention of the minimum lot size development standard in this specific instance.
The first environmental planning ground is titled "Ground 1 Enables the ongoing use of an established residential dwelling". I accept that no new uses are being introduced. The Respondent submits that this ground is irrelevant because of the decision of Jonah and that the Applicant cannot rely on what cannot be demonstrated to be a lawfully erected dwelling. I am not satisfied that the replacement of a prior dwelling, whether authorised or not, and the continuation of a residential use is an environmental planning ground.
The second environmental planning ground is titled "Ground 2 No increase in density of rural residential dwellings". The Respondent submits that this ground is not factually correct. I do not agree that it is factually incorrect because the current residential use is lawful as a result of the provision of the Mindaroo Recovery Pod (see [10]). I find that in effect there will not be an increase in density and that the Proposed Development does not have any greater impact than the current lawful occupation on any strategic aim to protect rural land from an increase in residential dwellings. Accordingly, I find that this is an environmental planning ground.
The third environmental planning ground is titled "Ground 3 Ongoing protection of access to rural land". The Written Request relies on the Shoalhaven 2040 Strategic Land Use Statement and Respondent submits firstly that a dwelling house is not required for the purpose of providing access to rural land and secondly that the reference to the Shoalhaven 2040 Strategic Land Use Statement is misplaced because that document postdates the development standard. Mr Woodworth in the JER Planning at par 54 states his opinion that in any event, "this is not an environmental planning ground that would justify contravening the clause 4.2D development standard." Mr Woodworth also expresses some concern at par 55 that "establishing additional residential land uses on separate parcels of land (with lots areas less than 40ha) within a 1964 holding encourages the fragmentation of rural and agricultural land and contributes to additional residential land uses in areas not anticipated …" This concern has a flavour of not setting an undesirable precent, and also comes within consideration of the public benefit of maintaining the standard (cl 4.6(5), SLEP) which I deal with below at [80] and [135] to the effect that refusal of consent is not warranted on this basis. In any event, I am not satisfied that this third ground establishes an environmental planning ground.
The fourth environmental planning ground described in the Written Request is titled "Ground 4 The proposal does not result in any departure from the surrounding rural residential character". I agree with the Respondent that consideration of character should be the rural character of the locality or area but I reject the submission that this ground relies on the character immediately adjoining the Site. The Written Request goes to some lengths to review the immediately adjoining lots to the north and south (Morton National Park to the south and a steep escarpment to the north that is zoned C2 Environmental Conservation) as well as the immediately adjoining lots to the east and west, consisting of "several small lots that are all zoned RU2 Rural Landscape" (Written Request, par 3.2.4) The Written Request then goes further and specifies that "a desktop review has been undertaken to identify the lots within 1.5km east and west" as depicted in Fig 2 of the Written Request. For this reason I do not agree with Mr Woodworth when he asserts that the Written Request has considered "only the character of properties that benefit from historical provisions" (JER Planning, par 57). I find that the Proposed Development will not result in a departure from the surrounding rural residential character and that this amounts to an environmental planning ground.
The fifth environmental planning ground is titled "Ground 5 The site is suitable for residential uses notwithstanding the variation". Suitability of the Site is the essence of these proceedings. The Respondent submits that this ground is not made out especially in relation to bushfire risk where the dwelling was in fact destroyed by fire. The mere destruction by fire does not of itself render a site unsuitable for residential use. It is uncontroversial that the 2019/2020 fires were catastrophic and that a number of residential dwellings were destroyed. The suitability of the Site is determined by the assessment of the matters listed in s 4.15 of the EPA Act and not as a conclusion following a catastrophic event. The Written Request relies on the permissibility within the zone and long term residential use with "little ongoing environmental impact and impact to the provision of other uses on surrounding sites, demonstrates the suitability of the site for residential development." I adopt these reasons, and conclude that the Site is suitable for the Proposed Development. In the circumstances of this matter, the finding as to suitability of Site for the erection of a dwelling is an environmental planning ground and may be sufficient in its own right to justify the contravention of the minimum lot size development standard.
The final ground is titled "Ground 7 Consistency with objects of the EPA Act". The Respondent submits that "the Proposed Development is the opposite of orderly and economic development. The Proposed Development is disorderly and not economic when have regard to the broader community and the context of these provisions limiting residential dwellings. The standards are put in place to make orderly and economic development. It is disorderly because it puts RFS personnel in danger and not economic because [it] will have an adverse impact if allowed to occur."
I reject the reasoning of the Respondent because the assessment of the bushfire mitigation methods considered below, result in the conclusion that there are appropriate provisions in regards to access to the Site and that there are no unacceptable risk to the safety to firefighters (see [105]). I similarly have not found that there is an adverse impact from the Proposed Development. The process of making a development application and having the proposal assessed in accordance with the various statutory provisions and environmental planning instruments is the means by which development remains orderly, such as in this case.
For these reasons, I find that the Written Request has demonstrated that there are sufficient environmental planning grounds to justify the contravention of the minimum lot size development standard.

Public Interest

Preston CJ at [26] in Initial Action, states: "26 The second opinion of satisfaction, in cl 4.6(4)(a)(ii), is that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. The second opinion of satisfaction under cl 4.6(4)(a)(ii) differs from the first opinion of satisfaction under cl 4.6(4)(a)(i) in that the consent authority, or the Court on appeal, must be directly satisfied about the matter in cl 4.6(4)(a)(ii), not indirectly satisfied that the applicant's written request has adequately addressed the matter in cl 4.6(4)(a)(ii)."
I do not take into account the personal impact of the determination of this appeal on the applicants as part of the 'overall public interest' as set out in the Written Request at p 16 for the purpose of cl 4.6(4)(a)(ii) of the SLEP because, as Preston CJ said in Initial Action at [27]: "27 The matter in cl 4.6(4)(a)(ii), with which the consent authority or the Court on appeal must be satisfied, is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. It is the proposed development's consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest. If the proposed development is inconsistent with either the objectives of the development standard or the objectives of the zone or both, the consent authority, or the Court on appeal, cannot be satisfied that the development will be in the public interest for the purposes of cl 4.6(4)(a)(ii)."
I have formed the requisite state of satisfaction in relation to the objectives of the development standard above.
As the works of the Proposed Development are contained wholly within the zone RU2 Rural Landscape Zone, I consider the objectives of that zone which I set out below as follows: Zone RU2 Rural Landscape 1 Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture.
The Written Request at p 15 respond to each of the zone objectives in Table 2 which I summarise as follows: 1. Environmentally constrained nature of the site "the land is of poor agricultural use" (Joint Report of the City Engineer and the City Planner - Planning Development Committee Meeting - 17 July 1984) "therefore it is not considered achievable to encourage primary industry on this site beyond the small scale domestic agricultural uses that have been previously undertaken." 1. I note that during the on site view, the Court observed approximately 10 sheep and a pig. 1. There is no conflict between rural and agricultural uses. 2. The Proposed Development is for small scale rural residential development and does not propose any change to the rural landscape character of the land. 3. The immediate context of the site is characterised by similar scale rural-residential properties, as well as dense bushland, including the Morton National Park and Budgong National Park. A dwelling house is permissible in the zone.
I am satisfied that the Proposed Development will be in the public interest because it is consistent with the objectives of the development standard, as set out above, and the objectives for development of the zone in which the development is proposed to be carried out.

Considerations of the Planning Secretary

The concurrence of the Planning Secretary to the proposed variation of the development standard was refused for the reasons provided in the correspondence from the NSW Department of Planning and Environment (DEP) dated 20 April 2023 (Ex 2, Tab 12). I note that the reasons given are identical with the reasons recommended by the Clause 4.6 assessment report dated 19/20 April 2023 (Assessment Report) prepared by Council officers (Ex 2, Tab 11). The Proposed Development was amended after that date and the Written Request has not subsequently been referred to the Planning Secretary.
Pursuant to s 8.14(3) of the EPA Act, the Court may determine the appeal whether or not the concurrence of the Planning Secretary has been granted as required by cl 4.6(4)(b) of SLEP (as it was at the time the development application was determined by the Respondent). The Court has power to uphold the Written Request without obtaining or assuming the concurrence of the Planning Secretary by reason of s 39(6) of the LEC Act and should nevertheless consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard; see Initial Action at [29].
The Written Request and the JER Planning do not address the terms of cl 4.6(5) of the SLEP. I have referred to the Assessment Report at p 5 (Ex 2, Tab 11, folio 42) and I have considered the matters as follows: 1. Whether contravention of the development standard raises any matter of significance for State or regional environmental planning. 1. "the proposal itself is not of State or regional significance" (Assessment Report, p 5). 1. The public benefit of maintaining the development standard. 1. The Assessment Report, p 5, gives 3 reasons including creating an undesirable precedent - but see Written Request p 9 "With regard to any perceived precedent set by this variation for any future development that may be considered "unplanned rural residential development", it is noted that the proposed development is resultant from a unique set of circumstances … Due to these unique circumstances, no possible precedent could be created by seeking to vary the development standard." I agree that the granting of consent to the Proposed Development is highly unlikely to set any precedent and I adopt the reasons given in the Written Request and the Applicant's closing submissions quoted below at [136]. 1. Any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. 1. I note the NSW Rural Fire Service (RFS) letter dated 13 March 2023 which I come back to in my assessment of the suitability of the Site in the context of safe access by firefighters and the bushfire mitigation measures (see [93]).
In conclusion, the Court is satisfied that the applicant's written request seeking to justify the contravention of the development standard in cl 4.2D of the SLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the SLEP and that the proposed development would 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. Accordingly, I find that contention 2 cannot be sustained.

Whether the Site is suitable due to whether there is safe access to the Site by firefighters where the Proposed Development relies on performance solution (PBP 2019 and s 4.14 EPA Act)

The second matter of the three matters identified above at [11], which will assist in answering the question as to whether the Site is suitable for the Proposed Development in the context of access and safety to firefighters in the event of a fire, in the particular context of reliance on a performance solution. The concern in essence is the access to the Site in the context of safety to firefighters. Dr Douglas in JER Bushfire, at pars 16, 17, 20 and 21, is of the opinion that risk to firefighters is not appropriately dealt with.
Access to the Site is via a ROW that is largely clear of vegetation and the distance from Duffys Lane to the proposed dwelling house via the ROWand the driveway is in the order of 645 metres (ASOFAC in Reply, par 76(c)(ii)).
The ASOFAC, at Contention 3 - Bushfire, provides that the Proposed Development should be refused because: "(a) The proposed development does not comply with all specifications or requirements of PBP 2019, and in particular: … (ii) The access arrangements proposed for the site rely on a performance- based solution which does not comply with the specifications and requirements, including performance criteria, of PBP 2019. (iii) The siting of the building does not meet the specific objectives of PBP 2019 in relation to safety of firefighters and residents accessing or egressing the site. (iv) The development application is not accompanied by a Bush Fire Management Plan as is required for proposals relying upon a performance-based solution. (b) The site is subject to significant landscape bush fire behaviour which requires additional construction requirements to address the vulnerabilities arising from this bush fire risk, which with restricted accessibility poses an unacceptable risk to residents and fire fighters."
The bushfire experts state in the JER Bushfire at par 8 that the "Joint Bushfire Expert Report has been prepared to assist the Court in understanding bushfire issues in relation to the development and whether Planning for Bushfire Protection 2019 (PBP 2019) is accounted for."
The bushfire experts agree and acknowledge the following (JER Bushfire at pars 9e and f): "e) For Residential Infill Development, provision for Asset Protection Zones, construction requirements, property access, access to water supply and services, landscaping and emergency management are set out in PBP (pp. 64 and 71). The specifications and requirements for access from PBP 2019 are provided in Appendix C to this joint report. … f) The development no longer relies on a performance solution for APZs or BAL, and the development complies with the acceptable solutions in Table 7.4a in relation to APZs and Construction."
The Respondent submits that the crux of the dispute relates to Table 7.4a of the PBP 2019, specifically the 4th performance criteria for Access and the 1st acceptable solution, reproduced below at Fig 3, and the experts disagree as to the performance solution. There is also disagreement with regards to Section A2.6 of the PBP 2019 and whether there is a requirement for a Bushfire Management Plan.
I will deal firstly with the disagreement as to the performance solution regarding providing safe access to firefighters and I will come back to the Bushfire Management Plan.
Section 1.4 of PBP 2019 sets out "How to use this document" and the performance based approach as follows: "1.4 How to use this document Applications for development on BFPL should include a bush fire assessment report. This report must demonstrate that the proposal satisfies the requirements of PBP. All applications must meet the Aim and Objectives of PBP. PBP uses a performance based approach, and identifies objectives and detailed performance criteria to satisfy desired outcomes and meet the Aim and Objectives. Ultimately, any performance based approach must demonstrate that bush fire protection is afforded to a proposed development commensurate with the assessed level of bush fire risk and the characteristics of the occupants. This can be achieved by either applying the identified acceptable solutions, or by preparing a performance based solution. A performance based solution must be designed to achieve the appropriate level of protection by tailoring a package of measures which meet the intent and performance criteria relevant to the proposed development. BPMs are set out in Chapter 3. Performance criteria and acceptable solutions are shown for each specified development type in Chapters 5‑8. Refer to Figure 1.5 for further information on how to use PBP."
The various bushfire mitigation strategies of the Proposed Development include upgrades to the proposed accessway to comply with the specifications listed in the second acceptable solution for the relevant performance criteria in Table 7.4a, which I reproduce below:

Fig 3: Extract of Table 7.4a of the PBP 2019 (Ex 2, Tab 20, folio 338)

Table 7.4a of the PBP 2019 (Ex 2, Tab 20) sets out bushfire protection measures generally for residential infill development. The only acceptable solution relating to access for residential infill development in Table 7.4a of PBP 2019. that the Proposed Development does not achieve is in relation to the means by which firefighting vehicles are able to access the dwelling and exit the property safely, specifically the following: "at least one alternative property access road is provided for individual dwellings or groups of dwellings that are located more than 200 metres from a public through road";
The experts agree that the performance criteria, namely that "firefighting vehicles can access the dwelling and exit the property safely" is not met by the acceptable solution because the distance of the of the dwelling from the nearest public road is in excess of 200m and there is no alternative access road, and consequently, the experts agree that consultation with RFS was required. I am satisfied that the development does not conform to the relevant specification and requirement of the PBP 2019 in relation to firefighting access and pursuant to s 4.14(1) of the EPA Act, and I am satisfied that consultation with RFS has taken place. Section 4.14 provides conditions precedent to the granting of consent to development on bushfire prone land, including at subs (1A) outlining the requirement to consult with RFS when the development does not conform with the specification and requirements of the PBP 2019 and I reproduce the section in full as follows: 4.14 Consultation and development consent - certain bush fire prone land (cf previous s 79BA) (1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3(2)) unless the consent authority - (a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or (b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements. (1A) If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire. (1B) This section does not apply to State significant development. (1C) The regulations may exclude development from the application of this section subject to compliance with any requirements of the regulations. The regulations may (without limiting the requirements that may be made) - (a) require the issue of a certificate by the Commissioner of the NSW Rural Fire Service or other qualified person in relation to the bush fire risk of the land concerned, and (b) authorise the payment of a fee for the issue of any such certificate. (2) In this section - special fire protection purpose has the same meaning as it has in section 100B of the Rural Fires Act 1997.
The Court has before it in evidence the letter dated 13 March 2023 from the NSW Rural Fire Service (RFS) (Ex 2, Tab 7) providing recommended conditions of consent including in relation to Access to comply with the requirements of Table 7.4a of the PBP 2019, except the requirement for hydrants and the requirement for at least one alternative access road. The RFS noted that: "This proposal has been assessed as a performance based solution where the Asset Protection Zones have been increased to BAL 19 setbacks with a BAL 29 construction outcome. This is in recognition of the risks associated with the isolated location of the development site, and the access constraints."
I am satisfied that the consultation was concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire because it is clear from the RFS letter dated 13 March 2023 that was considering the referral on the basis of the Proposed Development being infill residential development in the context of s 4.14. The letter opens with "I refer to your correspondence dated 13/02/2023 seeking advice regarding bush fire protection for the above Development Application in accordance with section 4.14 of the Environmental Planning and Assessment Act 1979" and below the greeting in bold text appears the following: "Development Application s 4.14 - Infill - Single Dwelling - New Dwelling … "
There is a list of 12 requirements listed in the RFS letter of 13 March 2023 in relation to access which largely mirror the list in Table 7a and there is also a note which states "Access to proposal appears to traverse neighbouring land, accordingly Council shall be satisfied the access to the site is practical and lawful." Further, towards the end of the letter, the RFS provides general advice for the consent authority to note as follows, with emphasis added: "This proposal has been assessed as a performance based solution where the Asset Protection Zones have been increased to BAL 19 setbacks with a BAL 29 construction outcome. This is in recognition of the risks associated with the isolated location of the development site, and the access constraints."
The Applicant's case is that the Court may rely on the conditions recommended by RFS and the range of bushfire protection measure implemented in the Proposed Development. The Applicant submits that the purpose of the statutory provision in s 4.14 of the EPA Act "is to ensure, amongst other things, safety of people" (Transcript 13 June 2024, p 11 at 31) and refers to: "the heading to the conditions that the RFS has imposed and the reasons for them relate to, amongst other things, personal safety for firefighters. In other words, these conditions are accepted by the RFS to do the job to provide for individual personal safety, including that of firefighters. So the conditions do the job." (Transcript 13 June 2024, p 11 at 35)
I reproduce below at Fig 4 an extract of the Concept Access Design Plan dated 2 April 2024. Fig 4: Extract of Concept Access Design Plan Ref No 22579 prepared by SET Consultants dated 2 April 2024 (Ex B, Tab 4).
The Respondent submits that although the Applicant relies on the conditions of consent suggested by the RFS, those are not binding on the Court and are matters for consideration (s 4.14(1A), EPA Act) and taken into account together with the expert evidence now before the Court in the JER Bushfire. The Respondent submits, and I accept, that Dr Douglas is highly qualified. The Curriculum Vitae of each Dr Douglas and Mr Cannon are annexed to the JER Bushfire and I also note that Mr Cannon is a Level 3 accredited bushfire consultant and is the author of the Bushfire Assessment Report dated 9 April 2024 (Ex B, Tab 4).
I note that the Proposed/Draft Conditions of Consent filed 6 June 2024 (Ex 5) include, at condition 4, all but the last of the RFS Access recommended conditions, which does not apply as it refers to access to a development comprising more than three dwellings, which this is not. This condition remains in the final agreed Conditions marked Ex F.
The Applicant invites the Court to be satisfied that if those safety measures contained in the conditions recommended by the RFS are implemented then the risk to firefighters is within acceptable parameters. (Transcript 13 June 2024, p 14 at 15) "This is a direct statutory pathway to accept that the risk is minimised by the imposition of conditions that have been proposed by the RFS who haven't said there is an unacceptable risk." (Transcript 13 June 2024, p 14 at 20)
Dr Douglas at par 17 of the JER Bushfire provides: "17. The Specific Objectives for 'infill development' being a residential building includes "provide access, services and landscaping to aid firefighting operations." (PBP 2019, p.64) This has not been adequately provided."
Dr Douglas at par 19 to 21 of the JER Bushfire provides: "19…each development must be assessed on its merits. The site is very isolated and public roads are hard to maintain to a suitable standard. Although normally associated with future subdivisions, PBP 2019 provides some guidance for isolated developments when it states: "where developments are located in isolated areas, occupants may need to travel large distances through bush fire prone vegetation, and firefighters may be hindered from providing assistance." And again, when noting isolated development the principle is that "There are circumstances where increasing density on the site is just not acceptable given the bush fire risk." (p. 40, PBP 2019). 20. The current site is highly constrained in terms of access, and the provision of access goes to the level of safety of firefighters. The process of previous decision-making, although important is not the same as presented here. The current lot is not the same as other lots nearby and the travel path is significantly greater than those through which firefighters are expected to drive through. The property boundary fencing prevents easy access to safer areas. 21. This is not about a higher level of compliance; the development is not compliant and does not meet the performance criteria. There is also an issue of cumulative impact that arises from the 6 numbers of dwellings in the area which need to be supported with limited resources available to the local community. If crews are attempting to support this development, they are not available to others."
The concern raised and pressed by the Respondent is the length of the path of travel which is expressed by Dr Douglas in the JER Bushfire as "travel path is significantly greater" (JER Bushfire, par 20) however, there is no evidence as to what the parameters of a travel path for firefighters in order to appreciate how much greater the proposed path of 645m actually is. (ASOFAC in Reply at par 76(c)(ii)). Dr Douglas also articulates the concern being "that the access arrangements travel through an area of extreme threat vegetation (forest) which presents a significant risk to firefighters which may be accessing the site during a major bushfire event." (JER Bushfire, par 16).
The requirements listed in the RFS letter dated 13 March 2023 are in direct response to the context of the site's location and the means of access to traverse neighbouring land, therefore I am satisfied that the RFS took into account the concern articulated by Dr Douglas.
Having considered the recommendations of the RFS and the evidence of the experts, I find that there are appropriate provisions in regards to access to the Site and that there are no unacceptable risk to the safety to firefighters.
I now come back to the Respondent's contention that the Applicant has not provided a Bush Fire Management Plan as required by Section A2.4 in Appendix 2 of PBP 2019 for proposals involving a performance-based solution.
Section A2.6 of Appendix 2 of PBP 2019 provides guidance on detail to be included in a Bush Fire Management Plan. I reproduce Section A2.6 of Appendix 2 of PBP 2019 as follows with emphasis added: "A2.6 Bush Fire Management Plan Preparation of a Bush Fire Management Plan (BFMP) is recommended for developments in bush fire prone areas. A BFMP should detail all bush fire safety aspects of the proposed development including: APZ locations and management details; Landscaping requirements including indicative design layout and vegetation density thresholds; Access provisions such as locations, passing bays and alternate emergency access; Water supplies and bush fire suppression systems (including drenching systems, static water supply, natural water sources etc.); Schedule of the BAL requirements and building footprints as well as any specific construction details (i.e. bush fire shutter operating instructions); Details regarding the Bush Fire Emergency Management and Evacuation Plan; and Any other essential bush fire safety requirements."
Section A2.6 is contained within Appendix 2 of PBP 2019 titled "Submission requirements, performance based solutions and bushfire design brief" and Section A2.2 provides 'Submission requirements for infill development' and provides as follows: "For more complex applications or performance based solutions, a recognised consultant should be engaged to prepare a bush fire assessment report and a Bush Fire Management Plan. (see A2.6)."
Further, at Section A2.4 titled "Submission requirements and assessment methods for performance based solutions" provides as follows: "For performance based applications, it must be demonstrated how the product, design or material can meet the performance criteria of this document including the intent of measures and also, the aim and objectives. All performance based solutions should be accompanied by a Bush Fire Management Plan (see A2.6)."
Relevantly, the purpose of the Bush Fire Management Plan is to demonstrate how a performance criteria is met and Section A2.4 sets out the Assessment methods as follows: "Assessment methods Assessment methods are the means by which a proponent demonstrates that a solution achieves the performance criteria. The assessment methods described below are applicable to the assessment of performance based solutions to determine that they comply with the relevant performance criteria, as appropriate. a. Evidence to support that the use of a material, form of construction or design meets the performance criteria as described in PBP; b. Verification methods such as a test, inspection, calculation or other method that determines whether a performance-based solution complies with the relevant performance criteria; and c. Comparison with the acceptable solutions. All Verification Methods must be acceptable to the appropriate authority. NCC 2019 contains new Verification Methods that can be used to demonstrate compliance with the relevant NCC Performance Requirements for buildings in bush fire prone areas. Where Verification Methods GV5 of Volume One or V2.7.2 of Volume Two of the NCC are used to demonstrate compliance with NSW GP5.1 (Volume One) or NSW P2.7.5 (Volume Two), this is considered to be a performance solution for the purposes of PBP and the proposal must be referred to the NSW RFS."
The Applicant relies on the Bushfire Assessment Report (BAR) prepared by SET Consultants, dated 9 April 2024 (Ex B, Tab 4) which at Attachment 4 provides a plan titled "Bushfire Mitigation Plan" which clearly identifies the proposed asset protection zones and all trees therein. Mr Cannon's opinion is that a Bushfire Management Plan can be conditioned as a requirement prior to Construction Certificate (JER Bushfire, par 34) because the BAR and associated plans include the relevant information that would be included in a single Bush Fire Management Plan being the following as listed in the JER Bushfire at par 33: 1. Assist Protection Zone (APZ) locations and management details; 2. Access provisions such as locations, passing bays and alternate emergency access; 3. Water supplies (static water supply, natural water sources etc.); 4. Schedule of the BAL requirements and building footprints as well as any specific construction details; 5. Details regarding the Bush Fire Emergency Management and Evacuation Plan; and 6. Any other essential bush fire safety requirements.
Dr Douglas concedes that the BAR is provided against the requirements of the PBP 2019 (JER Bushfire, par 36) and articulates his concern that not having the Bush Fire Management Plan (BMP) upfront is not appropriate because "the whole purpose of the BMP is to provide certainty to the consent authority of the bush fire protection measures within the consent and there (sic) ongoing implementation. This can then be placed as a restriction to title." (JER Bushfire, par 35). In that regard, I find that the information provided to the Court sets out and details, for the Court's assessment and consideration, those bush fire protection measures listed in Section A2.6 of Appendix 2 of PBP 2019.
The Applicant submits in par 72(b) of the ASOFAC in Reply as follows: "the Bush Fire Assessment Report (prepared by SET Consultants and dated 9 April 2024), whilst not specifically titling a single plan as a "Bush Fire Management Plan", details all bush fire safety aspects of the proposed development in accordance with the guidance provided for a Bush Fire Management Plan in section A2.6 of Appendix 2 in PBP 2019"
The Applicant relies on the evidence of Mr Cannon in the JER Bushfire, where he expresses the view in pars 33-34 that "there's enough material of great specificity that would indicate that it is something that can be done as part of the conditions rather than now." (Transcript 13 June 2024, p 14 at 27)
The Applicant refers to the agreed conditions of consent (Ex F) namely, Condition 2 Bushfire Construction Standards, Condition 3 Bushfire Services, Condition 4 Bushfire Access, Condition 5 Road Upgrades and submits that "the measures that are proposed on site with which the Respondent doesn't take any issue are of a significantly higher standard." (Transcript 13 June 2024, p 14 at 42). I also note that the BAR is included in the Conditions as an "Approved Document" in condition 1 and the inclusion of condition 20 titled "Bush Fire Management Plan" which provides as follows: "20. Bush Fire Management Plan Prior to the issue of a Construction Certificate, a Bush Fire Management Plan prepared in accordance with the requirements of A2.6 of Planning for Bushfire Protection 2019 is to be submitted to and approved by the Council. The Bush Fire Management Plan is to be complied with at all times unless and unless the development the subject of this consent is demolished and is no longer carried out on the land. Prior to the issue of an Occupation Certificate, a public positive covenant pursuant to section 88E of the Conveyancing Act 1919 is to be registered on the title of the land requiring the Bush Fire Management Plan to be complied with at all times unless the development the subject of this consent is demolished and is no longer carried out on the land. The Council is to be specified as the prescribed authority having the ability to release or vary the covenant. The proposed wording of the covenants is to be submitted to and approved by the Council prior to the instrument being lodged for registration."
The Applicant also relies on elements of the Proposed Development which exceed the PBP 2019 criteria including the following: 1. the APZs proposed are greater than that required by Table A1.12.2 of PFP 2019; and 2. whilst the proposed dwelling has been determined as having a bush fire exposure level equivalent to BAL 19, an additional construction standard has been proposed and the proposed dwelling is proposed with a construction standard of BAL 29.
Referring back to Section A2.6, I now consider the specified matters which a Bush Fire Management Plan (BMP) should detail for all bush fire safety aspects of the proposed development including, in order to assess whether there is sufficient certainty as to the content of the BMP for the Site : 1. APZ locations and management details is set out at Section 3.2 (Specifications for Asset Protection Zone) of the BAR; 2. Landscaping requirements including indicative design layout and vegetation density thresholds is set out at Section 3.8 (Landscaping) of the BAR; 3. Access provisions such as locations, passing bays and alternate emergency access. Firstly, it is agreed that there is no alternate access. As to the balance, this is addressed in Sections 3.6 (Adequacy of Access and Egress from Site for Emergency Response) of the BAR and at: 1. BAR Attachment 2 - Concept Access Design Plan prepared by SET Consultants dated 2 April 2024 (reproduced above at Fig 4); 2. BAR Attachment 4 - Bushfire Mitigation Plan prepared by SET Consultants dated 2 April 2024. 1. Water supplies and bush fire suppression systems (including drenching systems, static water supply, natural water sources etc.) is set out at BAR Section 3.5 Siting and Adequacy of Water Electricity and Gas Supplies; 2. Schedule of the BAL requirements and building footprints as well as any specific construction details (i.e. bush fire shutter operating instructions) is addressed in BAR Section 3.4 Construction Standards; 3. Details regarding the Bush Fire Emergency Management and Evacuation Plan is set out in Sections 3.6 (Adequacy of Access and Egress from Site for Emergency Response) and 3.7 (Adequacy of Bushfire Maintenance Plans for Emergency) of the BAR.
I find that the BAR and conditions of consent provide the requisite certainty that prior to the construction of the Proposed Development, there will be a Bushfire Management Plan in accordance with the PBP 2019.
I therefore reach the conclusion that the Site is suitable because there is appropriately safe access to the Site by firefighters where the Proposed Development relies on performance solution which is detailed and included in the conditions of consent.

Insufficient information evaluation or assessment of impacts on terrestrial biodiversity and watercourse of that portion of the access driveway to be sealed on the Site (cll 7.5 and 7.6 SLEP, and s 4.15(1)(b) EPA Act)

The third and final matter of the three matters identified above at [11], which will assist in answering the question as to whether the Site is suitable for the Proposed Development, is set out in Contentions 7, 8 and 9 of the ASOFAC. The concern is limited to that part of the driveway which has a slope gradient between 10 and 15 degrees, requiring it to be sealed, and the impact of the resulting drainage works required and the manner in which any water quality or quantity that is being dealt with by whatever drainage is required, and what impact that has upon biodiversity and the water course (Transcript 13 June 2024, p 34). It is agreed that the Flora and Fauna Report prepared by Garry Daly of Gaia Research Pty Ltd (Flora and Fauna Report) dated May 2024 (Ex C, Attachment C) is otherwise satisfactory in relation to the balance of the proposed access works along the ROW and part of the all weather driveway.
The Applicant submits that "part of the site view had the benefit of identifying what remained in issue, and that was not the totality of the right of way, nor the road construction, but just that one relatively small part of it" (Transcript 13 June 2024, p 3 at 5).
The Applicant seeks to resolve these contentions by proposed Condition 9 and the concept plan (Ex F). I reproduce the proposed condition 9 below and the Concept Access Drainage Design prepared by SET Consultants dated 12 June 2024 at Fig 5: " 9 Driveway - Stormwater management Before issue of a Construction Certificate, certified engineering design plans and specifications generally in accordance with the "Concept Access Drainage Design" prepared by SET Consultants dated 12 June 2024 must be prepared by a professional engineer, (as defined in the National Construction Code) or surveyor in accordance with Council's Engineering Design and Construction Specifications and approved by Council. The stormwater plan must be designed to ensure all practical measures are undertaken to prevent adverse impacts on native vegetation or receiving water body. Reason: To ensure stormwater runoff associated with the driveway is appropriately managed so as not to cause adverse impacts on nearby native vegetation or watercourses." Fig. 5: Concept Access Drainage Design" prepared by SET Consultants dated 12 June 2024 (Ex F).
The Respondent submits that the effect of condition 9 is to defer an essential element required to be satisfied prior to being able to determine the DA "because this concept detail has not been the subject of any analysis of what its impacts are. It is what it is. It's a concept that has no information at all as to water quality, quantity, and resultant impacts upon biodiversity and vegetation that have been able to be analysed by the respondent." (Transcript 13 June 2024, p 4 at 20). The Respondent submits that the Applicant: "relies upon a plan which is described as a concept plan for drainage, a concept access drainage design, in respect of which there has been no ability for the council to conduct an analysis of the impacts of that concept, either at a high level or at a level of detail that would be required in order to understand the impact that this concept alone would have on ecology and on the water course … it is providing for a concept of a 2 metre wide stabilised table drain. That's a concrete structure that is shown in section on the - where it joins the sealed road, there's a cross-section that relates to that, which shows it having a particular dimension and depth. And then it collects at the end of the sealed part of the pavement, into something called a stilling basin. There's been no analysis whatsoever of what impact that has, what water quality or quantity comes out at the end of that particular facility, for example, what the impacts might be on vegetation, and on the watercourse that is below and in proximity to that area. And they are matters about which the information, or the contention relates, and would require people with proper expertise to analyse and advise on what those impacts are likely to be." (Transcript 13 June 2024, p 3 at 38).
I am satisfied that consideration of the terms of cl 7.5 Terrestrial biodiversity and cl 7.6 Riparian land and watercourses, where both have subcll (3) consideration and (4) jurisdictional prerequisite, can be limited to that part of the driveway which has a slope gradient between 10 and 15 degrees, requiring it to be sealed. Similarly, the consideration of the likely environmental impacts of the development as required by s 4.15(1)(b) of the EPA Act is limited to that same part of the driveway. I accept that the consideration, and satisfaction, needs to be evaluated and not deferred. In the matter of Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Preston CJ stated at [29]-[30]: "29. Palm Lake submitted that it was appropriate for the Commissioner to determine that the works to North Creek Road could be the subject of later application, assessment and approval by the deferred commencement condition. 30. I find that the Commissioner did err on questions of law in her consideration of the likely impacts of the proposed development. The Commissioner was required to make an evaluative judgment as to whether the likely impacts of the road, civil and infrastructure works required to be undertaken in the North Creek Road reserve were likely impacts of the proposed development, and if so, to take those impacts into consideration in determining the development application for the proposed development. The Commissioner did not take those impacts into consideration, not because she formed the opinion that the impacts were too remote, but for other reasons that involved error."
For completeness, cl 7.5(3) and (4) Terrestrial biodiversity, SLEP state: (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider - (a) whether the development is likely to have - (i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and (ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and (iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (iv) any adverse impact on the habitat elements providing connectivity on the land, and (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (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 significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided by adopting feasible alternatives - 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.
Clause 7.6(3) and (4) Riparian land and watercourses, SLEP state: (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider - (a) whether or not the development is likely to have any adverse impact on the following - (i) the water quality and flows within the watercourse, (ii) aquatic and riparian species, habitats and ecosystems of the watercourse, (iii) the stability of the bed and banks of the watercourse, (iv) the free passage of fish and other aquatic organisms within or along the watercourse, (v) any future rehabilitation of the watercourse and its riparian areas, and (b) whether or not the development is likely to increase water extraction from the watercourse, and (c) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (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 significant adverse environmental impact, or (b) if that impact cannot be reasonably 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.
The Respondent submits that in this case, there is nothing to assist the Court in relation to the considerations in cl 7.5(3) of the SLEP by way of any evidence of what that impact may or may not be and that the condition proposed by the Applicant is not an appropriate way of dealing with the impact of the development. The Respondent submits that: "In the context of even the concept drainage plan where it is shown that drainage may be placed on this land. If drainage is placed on that land, what is the impact of it? That is not something that can be answered by the reference to any evidence in these proceedings. So, in order to carry out any evaluative judgment in relation to that particular consideration, there is nothing in this case that is able to be relied upon or assist you. That is why it is inadequate information." (Transcript 13 June 2024, p 35 at 33).
Then in relation to the matters for consideration listed in cl 7.6(3) of the SLEP, the Respondent submits that there is no evidence of the quality of the water coming out, even if that concept drawing were seen as a feasible concept and concludes by saying: "So that then means that you can't form an opinion of satisfaction, because you simply don't have the evidence in relation to subcl (4) of both of those provisions." (Transcript 13 June 2024, p 36 at 5).
I asked the question as to whether there is any validity in the Applicant's submission that the Court can be satisfied that there will be no impact to satisfy the jurisdictional prerequisites in subcl (4) of cl 7.5 and cl 7.6, to which the Respondent responded: "You have to deal with that now, Commissioner. You have to understand the impact, evaluate it and then come to a conclusion on that basis, not just impose a condition saying this shall be done when you don't even know whether it can be done." (Transcript 13 June 2024, p 36 at 21).
The Applicant submits that the proposed condition 9 is within power and renders the matter certain by being final and valid. The Applicant submits that performance of the condition 9 is feasible and the evidence for that is in Ex F itself by way of the sketch plan annexed to the conditions of consent as well as the accumulative other material to demonstrate that there are no other impacts other than that which is limited to what is seen in the sketch plan in Ex F.
The Applicant relies on the summary of legal principles set out in two decisions. The first decision that includes a summary of legal principles relied on by the Applicant to support the inclusion of condition 9 as a means to resolve these contentions is PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139 ('PC Infrastructure'). PC Infrastructure was a little different because it dealt with a deferred commencement condition to consider and assess certain impacts on a classified road, whereas here, the Applicant's proposed condition 9 is an operative condition on the basis that there is sufficient certainty as to the impacts of the proposed works. The Applicant submits that "the law is straightforward, obvious and there's no doubt, its not disagreed" that it is inappropriate to defer "something for later consideration when it's a fundamental matter" (Transcript 13 June 2024, p 10 at 5) and refers to PC Infrastructure at [118] which provides as follows: "118. The Second Respondent submits that there are numerous reasons why the Court would not be satisfied that DC1 would be valid and permissible and articulates the following three reasons at pars 52 - 59: "52. First, s 2.119(2)(b) imposes a jurisdictional threshold in respect of which the Court must be satisfied at the time of granting consent. For reasons previously explained, the Court cannot defer satisfaction of a jurisdictional matter by way of condition, and especially not where the ultimate form of the development is unknown. This was critical to Commissioner Dickson's refusal of the Applicant's former development application for a Highway Service Centre at the Site31. There, Dickson C similarly found that there was no jurisdiction to approve that development application, in that the state of satisfaction required by s2.119(2)(b)(i) could not be deferred. Whilst deferred commencement conditions are occasionally imposed by consent authorities, or the Court on appeal, they cannot validly be deployed to address matters of a jurisdictional nature which require satisfaction prior to the granting of consent. 53. Secondly, the condition is inherently uncertain, and offends the Mison principle. There may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of leaving open the possibility of a significantly different development. The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [25]-[28]. 54. In this case, the condition leaves open the possibility of a significantly different development. A service station that allows access to large trucks is an entirely different proposition to a service station which does not. The deletion of the diesel bowsers and canopy along with the B-Double parking is, in and of itself, a sufficient difference to render the condition invalid. The fact that a "concept Site Plan" has been provided at Annexure A to the draft conditions does not alter the fact that the development contemplated by the condition would be significantly different from that applied for. Nor is it correct to contend, as the Applicant does, that any such proposal has been properly assessed. 55. Thirdly, it is well established in Part 4 jurisprudence that a decision-maker may not validly defer consideration of fundamental matters required to be considered at the time of granting the consent: see, for example Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-276; Farah v Warringah Council [2006] NSWLEC 191 at [61], [66]; Weal v Bathurst City Council (2000) 111 LGERA 181 at [14], [95]-[96]. The proposed condition defers consideration of a critical matter (access to the Site and the ability for petrol tankers to fuel the Site in order for the Site to operate as a service station) to post determination and leaves unresolved an essential part of the development consent: Huntington & MacGillivray v Hurstville City Council (No 2) (2005) 139 LGERA 84; [2005] NSWLEC 155 at [29]. 56. The Court must be aware of the development it is approving. The deferred commencement condition proffered significantly alters the development from what is sought in the application in the event the first part of the condition cannot be satisfied. 57. In oral submissions on 13 September 2023, the Applicant contended that confirmation that gradients comply with the requisite standard is "invariably" required to be the subject of conditions, and further, that the experts were satisfied that the issue was capable of being resolved, and that it was just a "matter of detail" to go in plans approved by a construction certificate. 58. Contrary to the Applicant's submissions, the Court would have no confidence in the Applicant's ability to satisfy the condition in circumstances where: (a) access to the Site is constrained by the existence of the gravity-fed sewer. The proposed levels in that part of the Site cannot be lowered any further than they have already; (b) the experts did not suggest, expressly or implicitly, that it was likely that a solution would be found to this conundrum. To the contrary, they were silent on this topic; I the Applicant has been aware of the contention raised by the Second Respondent since July 2023, and yet has failed to develop a satisfactory solution to the access arrangement in that time, despite several attempts to do so; (d) the various plans tendered by the Applicant during the course of the hearing alone were unable to demonstrate that any access could accommodate the gravity fed sewer traversing the driveway and any cover material of that sewer32; aI(e) There is no evidence before the Court, in light of the agreement reached by the traffic experts in Exhibit 11, that even petrol tankers to refuel the service station are able to access the Site. In the event they cannot, the utility of a service station is pointless. 59. In the circumstances, the Court cannot be satisfied that adequate access arrangements to the Site for the development proposed is available or can be made available." The Court has the power to impose a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition, in accordance with s 4.16(3) and s 4.17(1)(h)(i) of the EPA Act which provide as follows: 4.16 Determination (cf previous s 80) … (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. … 4.17 Imposition of conditions (cf previous s 80A) (1) Conditions - generally A condition of development consent may be imposed if - … (h) it is authorised to be imposed under the following - (i) section 4.16(3) or (5),"" 1. The second decision that includes a summary of legal principles relied on by the Applicant to support the inclusion of condition 9 as a means to resolve these contentions, and "that the condition making power is valid and lawful to deal with the imposition of where it can be feasible, an outcome that there is no impact" (Transcript 13 June 2024, p 36 at 45), is Lake Illawarra Park Pty Limited v Wollongong City Council [2024] NSWLEC 1027 at [100] where a "very condensed and convenient summary on the legal principles" (Transcript 13 June 2024, p 10 at 16) is provided as follows: "100. The Applicant makes the following submission at par 165 and 166: "Otherwise, the issue of 'certainty' to the extent that this is what the Council raises against the Applicant, that issue is comprehensively deal with by Preston CJ in Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited [2008] NSWLEC 185; (2008) 160 LGERA 20 at [49] - [50]: 49 At the outset, it should be noted that there is no common law principle that an exercise of statutory power must be certain or final in order to be valid: see King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 194-195; Cann's Pty Ltd v Commonwealth (1946) 71 CLR 210 at 227-228; Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 at 447; Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 42; 85 LGERA 197 at 205 and Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 at 514 [12]. 50 Rather, a condition will only be invalid, by lacking certainty or finality, if it falls outside the class of conditions which the statute expressly or impliedly permits: Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 at 514 [12]-[15], 519 [34]-[36]; Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376 at 412 [89]; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 292 [55], [57]; GPT Re Limited v Wollongong City Council (2006) 151 LGERA 116 at 146 [90] (appeal dismissed sub nom Belmorgan Property Development Pty Ltd v GPT Re Ltd & Anor (2007) 153 LGERA 450) and Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 (8 September 2006) at [89]-[90]. Where a condition does fall outside what the statute permits, the purported approval is not an approval under the statute at all (assuming the condition is not severable). The condition is within power, it sets a time that the dwellings must comply: either if they are park owned within 5 years, or if they are new, when installed, or otherwise, not a specific date but a point in time when they come to be replaced (hence, the end of their useful life). That is a condition within the power identified by s 4.16 of the EP&A Act and although a specific and fixed date is not known, when the dwelling is no longer being usefully used and is to be replaced, anything new must comply with the identified conditions of the consent.""
In defence of the proposed condition 9, the Applicant submits that: "You can't obviate the need to make the inquiry the statute directs you to by simply having a condition saying no impact, but there are margins within it, and the margins within it really reside here. You need to be satisfied that it remains workable that a condition will indeed have the effect that it's achieved. Now, that makes it within power because it's within the scope of what can be done… there would be no uncertainty and no deferral to later consideration about what that would be, because the parameter that's proposed in the last sentence before the word, "reason", is that the plan must be designed to ensure all practical measures are undertaken to prevent adverse impacts on native vegetation; that is the outcome…. there is no deferral. The plan itself shows that the outcome is achievable. The physical features of the land that you are able to observe on site show that there isn't going to be vegetation removal, and that provided there is a satisfactory drainage outcome, then you can accept that there will be no impact. That's all within your ability to accept that now from what you've seen, observed, and heard in this case. As a consequence, we are in that territory of saying, I do not have the final engineering design, but I know that it can be workable and that it can achieve that ultimate outcome of preventing the adverse impact. Those are the reasons I advance to you as to why that deals with cll 7.5 and 7.6" (Transcript 13 June 2024, p 10 at 38).
I am satisfied, as required by cll 7.5 and 7.6 that the development, focusing on that part of the driveway access, is designed, sited and will be managed to avoid any significant adverse environmental impact because any impact can be reasonably avoided by adopting the concept depicted in the drawing referred to in Condition 9 and part of Ex F. One of the reasons I reach the requisite state of satisfaction is that the whole of the access to the Site has been deemed to be satisfactory and I am only dealing with a relatively small section where the concern was limited to possible impacts resulting from stormwater management. I find that the area the Respondent contends requires further information for assessment is small, as depicted in the Concept Access Drainage Design prepared by SET Consultants dated 12 June 2024 (Ex F) and together with the assessment in the Flora and Fauna Report, I find that there is sufficient information to satisfy the matters for consideration and reach the requisite state of satisfaction required by cll 7.5 and 7.6 of the SLEP. I have referred to the Concept Access Drainage Design which is drawn to scale and includes the following: 1. a labelled drawing of the proposed paved section of access road; 2. the approximate catchment area of 2,800 m2; 3. the location and dimension of the stabilised table drain; 4. the location and dimensions of the rock lined stilling basin together with section and layout detail (not to scale); and 5. cross section of the sealed road noting the crossfall of the pavement and further detail of the table drain to collect surface water flow from the road to drain at downstream end with rock line stilling basin.
Accordingly, I conclude that the grant of development consent should be subject to conditions including the Applicant's proposed condition 9 in accordance with Ex F.

Will granting consent to the Proposed Development set an undesirable precedent?

The ASOFAC contends that the development application should be refused because it is not in the public interest having regard to the other contentions and would set an undesirable precedent for future residential development on environmentally constrained lots contravening the development standard in cl 4.2D of SLEP.
I have given precedent some consideration above at [80] in the context of cl 4.6(5) of the SLEP. Further, I adopt the reasons given by the Applicant that any precedent value of these proceedings are highly unlikely and not sufficient to warrant a refusal. The Applicant submits as follows: "lastly, there's a flavour of precedent in this case that is very understandable. The Council wouldn't want an unlawful dwelling to get some blessing because of, especially where others can point to the fact that there's then been an approval for a 19 hectare lot to have a dwelling on it when the minimum is 40. In rural areas of this type, that is readily understandable. But I think I almost say this in every case where the word precedent comes up. I would dare any other person relying on it to say that they had the same circumstances. That is the proverbial snowflake's chance in hell. This case is unique. It really is, for so many reasons. If there is one person that can point to a precedent of this type, and what is almost central to that is the fact that there hasn't been any statutory demur to the existence of this dwelling until the technicality of its rebuild had to come up, and they continue to live there. That if the Council has any comfort in the fact that if the Court were to approve this, it can say, yes, this would be a precedent for someone in the precise circumstances of the Mintons, and that's it. There really is no other aspect to precedent that can cause the Court, to the extent that it comes up, or certainly the Council, a worry as a consequence, and that's all I wish to say." (Transcript 13 June 2024, p 22 at 10)
I now set out my reasons as to the satisfaction of some remaining jurisdictional prerequisites which are not contested between the parties.
On 1 October 2023, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) was repealed by State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). However, the development application is saved from the application of SEPP Sustainable Buildings in accordance with s 4.2 of that SEPP.
I have considered whether the Site is contaminated pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. There is a Statement of Environmental Effects prepared by Planscapes filed with the Class 1 Application (Ex A, Tab 2) and under the heading Environmental Constraints includes a table which answers "No" to "Contaminated".
The matter is not contended by the Respondent and in the context of the detailed history of the Site in evidence before the Court I am satisfied that there has been adequate consideration as to whether the Site is contaminated and I find that the Site is suitable for the residential use proposed.
I have taken into account the maters listed in cl 5.16(4) of the SLEP in determining whether to grant development consent for the erection of a dwelling on zone RU2 Rural Landscape to minimise potential land use conflict between existing and Proposed Development (particularly between residential land uses and other rural land uses). My consideration of these matters is covered in the consideration of the Written Request.
I am satisfied that the Proposed Development has essential services available or adequate arrangements have been made to make them available. (cl 7.11, SLEP)
For the reasons set out in this judgment I conclude that the jurisdictional prerequisites are satisfied and that on a merit assessment, the Proposed Development warrants a grant of consent subject to conditions of consent pursuant to Exhibit F.

Orders:

The Court orders: 1. The written request pursuant to cl 4.6 to justify the contravention of development standard in cl 4.2D of Shoalhaven Local Environmental Plan 2014 is upheld. 2. The appeal is upheld. 3. Development consent is granted to development application DA22/2325 for the construction of a two storey dwelling house with a detached garage and driveway and access road upgrade at 232 Duffys Lane, Budgong legally described as Lot 201 DP 751255 and 222 Duffys Lane, Budgong legally described as Lot 217 DP 751255 subject to the conditions of consent in Annexure A. 4. All exhibits are retained.

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: 06 September 2024

(2018) 235 LGERA 256

(2007) 156 LGERA 446

(2018) 236 LGERA 256

(2019) 243 LGERA 338

(2006) 144 LGERA 408

(2006) 143 LGERA 277

(2000) 111 LGERA 181

(2001) 130 LGERA 508

(2005) 141 LGERA 376

(2006) 151 LGERA 116

(2007) 153 LGERA 450

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