Montego Cay Pty Limited v Warringah Council

Land and Environment Court (NSW)|2005-06-03|Before: Pearlman CJ

The applicant's evidence 40 Mr Juradowitch states that the proposed access is ancillary to the 1998 approval, at least for that area of the site located outside the crosshatched area. He describes the road as being minor in nature, in context with the existing and approved aged housing development and occupying less than 3% of the bushland on-site. 41 He relies on the evidence of the applicant's environmental experts to conclude that the proposed access will have minimal impact on visually and ecologically significant species and communities and significant landforms. Visual impacts are further reduced by proposed landscaping and bush land regeneration. 42 In his assessment, the proposed road is consistent with the underlying objectives of the DFC Character Statement that allow for approved vehicular access if it can be constructed without significantly impacting on the integrity of identified significant species and landforms. Importantly, the proposed access will also serve as a worthwhile recreational facility for residents of the village, improving their access around the site and to nearby services and bush walks. 43 While maintaining that the proposed access is not inconsistent with the DFC Statement, Mr Juradowitch states that the proposal can be considered under cl 16(2) as this clause allows a consent to be granted "even if the development is not consistent with the desired future character of locality".

Visually and ecologically significant vegetation species 48 Professor Adam notes that the Disturbance Areas Diagram provides for a disturbance area of 5744 square metres. He identifies the vegetation along the proposed road as Angophora woodland and Bangalay slopes forest. Some Bangalay Alluvial forest adjoins the approved Greenhaven development however the road affects a minimal, if any part of this community. 49 He acknowledges the Angophora woodland and Bangalay slopes forest are not endangered ecological communities on the schedules of the Threatened Species Conservation Act 1995 however the loss of vegetation in the area of the proposed road is still a concern. Professor Adam sees the communities as having significance because of their restricted distribution, high local conservation value and contribution to the habitat quality of the area. 50 Mr O' Grady states that the proposed road will remove approximately 70 trees, 22 of these trees have been classified as a large trees. He notes that the loss of trees is minimised by the reduction of the zone of construction to its narrowest possible width, the replanting of some species currently found within the road corridor, the provision of offsets through bush regeneration, indigenous tree planting works and sustainable stormwater management. Mr O' Grady also maintains that is necessary to balance the disturbance of vegetation against the benefits of the proposed road. 51 In addressing visual impact, Mr O'Grady states that the road will have no significant impact on distant views. It will have some impacts on views from the residences fronting Ennerdale Crescent however this would be offset by improvements in visual quality from the proposed bush regeneration works in the vicinity of these residences. Any potential for loss of visual quality would be limited to the immediate vicinity of the proposed road corridor and would be ameliorated by specific design features such as the retention and or reinstatement of natural rock faces. 52 On this specific matter I prefer the evidence from the councils experts. I agree that the reference to "significant vegetation species and communities" is not necessarily a reference to "threatened species" or "endangered ecological communities as defined in the Threatened Species Conservation Act 1995. While the test of consistency is not as onerous as if the preservation of vegetation related to species and communities identified in the Threatened Species Conservation Act 1995 the DFC Statement nonetheless places some considerable emphasis on the retention of the vegetation in the crosshatched area. Ms Laidlaw's description that the DFC Statement addresses the preservation of vegetation in a more general manner is a sound and practical interpretation of the DFC Statement and consistent with the approach in Hecar Investments. 53 On this basis, I accept that the vegetation that will be lost forms part of a "visually and ecologically significant" area of vegetation even though the vegetation does not fall within the requirements of the Threatened Species Conservation Act 1995. In coming to this conclusion I have also given some considerable weight to the 1998 approval and the reasoning behind the approval. It is clear that the approval was based on the balancing of the natural qualities of the site with the erection of the proposed development. Considerable expert evidence was presented to the Court in establishing the appropriate balance. 54 This expert evidence formed the basis for the B6 DFS Statement. The crosshatched area reflected the Courts findings and restricts development to the area of the 130 self-care units and the clubhouse facility. While not prohibiting development in the crosshatched area, the B6 GFS Statement clearly seeks to restrict development by stating that vegetation will be preserved in its "natural state". Any loss of vegetation must be considered in this context. 55 Mr O' Grady identified offset works that would address the loss of vegetation. Even putting aside that this is a matter appropriately considered as part of the merit assessment rather than the jurisdictional pre - conditions, there was insufficient evidence to support this approach. The question of offsets was raised late in the proceedings with a few specific details. 56 Mr Juradowitch urged the Court to balance the loss of vegetation with the potential benefits for the future residents of the site. Again, this is a matter appropriately considered as part of the merit assessment rather than the jurisdictional pre - conditions of cl 12(3) of the LEP. 57 For these reasons, I find that the proposed development is inconsistent with the requirement in the B6 DFC Statement requiring "visually and ecologically significant vegetation species …. will be preserved in their natural state".

Significant natural landforms 58 Mr O' Grady states that the road corridor passes through a length of approximately 140 metres of natural rock outcrop (between chainages 30 and 170) of moderate to very high-quality visual significance. He helpfully provided a Visual Analysis as an addendum to his report that included photographs, a description of the rock outcrop and a measure of visual significance at regular intervals along the route of the road. 59 In his assessment, around 40 metres of the natural rock within the corridor would be substantially visible in its locality. The remainder would be visible only locally from the valley below the corridor. In Mr O'Grady's opinion, measures have been included in the proposal to minimise the visual impacts of the loss of rock outcrops that will occur. These measures include reinstatement and/or retention of natural rock faces and regeneration of bush land. 60 In considering this matter, I did not understand the parties to disagree on the categorisation of the rock outcrops as significant natural landforms. With the benefit of the site inspection and an explanation of the amount of impact on the rock outcrops at various points along the proposed road, I have little trouble in concluding that the proposal will have a significant impact on this natural feature of the site. In coming to this conclusion, I acknowledge that the applicant has attempted to minimise this impact by removing only the necessary part of the rock outcrop to allow for the construction of the road. Even so the amount of excavation is significant and extensive. 61 The engineering drawings (Exhibit E) identify the area of the rock outcrop to be excavated between chainages 30 and 170. The cut ranges from 2.4 metres at chainage 30 to 8.1 metres at chainage 150. The face of the cut is greater because of the need to provide a batter. For example, the length of the face of the cut at chainage 150 is 10.2 metres. Even though the most recent plans provide for the retention of part of the rock outcrop on the downslope side of the road to provide some screening for the cut, in my view this measure still does not address the excessive excavation required for the road. 62 I also note the requirement for a 2 metre wide Geotechnical Safety Zone created upslope of the cut batters where all loose and unstable rocks, trees and other stability hazards are to be removed. 63 For these reasons, I find that the proposed development is inconsistent with the requirement in the B6 DFC Statement requiring "significant natural landforms will be preserved in their natural state".

Pathways and other passive recreational purposes 64 Mr Juradowitch states that even though the proposed road extends across the crosshatched area, the evidence of the applicant's experts suggest that the road will have no adverse impacts on rare or endangered fauna or flora. These experts also indicate that any visual and environmental impacts on ecologically significant vegetation species and communities or significant landforms are modest and within acceptable limits, having regard to the compensatory bush land regeneration and benefits obtained from proceeding with construction traffic off James Wheeler Place. 65 Again, the impacts and compensatory works described by Mr Juradowitch are not matters that can be taken into consideration under cl 12(3) of the LEP. 66 In relation to the B6 DFC Statement, the proposed road could not be reasonably described as a pathway or a passive recreational purpose. While the road may be used by future residents of Greenhaven for pedestrian access, it is clearly has two principle purposes. Firstly, to provide construction traffic access and secondly, to provide permanent vehicular access. I do not accept that even under the most liberal interpretation, the road could be described as a pathway or an area used for passive recreational purposes. 67 For these reasons, I find that the proposed development is inconsistent with the requirement in the B6 DFC Statement requiring " no development within areas within the locality shown cross-hatched on the maps, except for pathways and other passive recreational purposes". Existing approved vehicular access 68 The proposed road is not a road shown on the 1998 approval or any other approval and as such is inconsistent with the requirement in the B6 DFC Statement requiring " no development within areas within the locality shown cross-hatched on the maps, except for…. the existing approved vehicular access". 69 On the basis of the findings in the preceding paragraphs and in accordance with cl 12(3)(b), I am satisfied that the proposed development is inconsistent with the B6 DFC Statement and as such consent cannot be granted and the appeal must fail. 70 For completeness I will briefly deal with the other issues raised in the proceedings. Is the proposal consistent with the B7 DFC Statement? 71 The B7 DFC Statement largely addresses the suburban residential development within its locality rather than the natural bush land character, although some reference is made to the enhancement, where possible of the spread of indigenous tree canopy and the preservation of the natural landscape, including rock outcrops, remnant bushland and natural watercourses. 72 In considering whether the proposal is consistent with the B7 DFC Statement, Ms Laidlaw takes into account that the natural vegetative qualities of the land affected by the road are disturbed and that only a minor amount of further disturbance would be required at the edge of the bush land. In her opinion, the degree of incompatibility with the B7 DFC Statement is less when compared to the B6 DFC Statement. She states that the road is potentially work that could be held to be "not antipathetic to" or "not fundamentally inconsistent with" the planning intent of the B7 DFC Statement. Ms Laidlaw concludes that it is essentially meaningless to consider this small section of the new road in isolation from the remainder of the road. 73 Mr Juradowitch relies on the very limited area of the proposed road within this locality, the lower quality of bushland that is affected and the proposed compensatory works to conclude that the proposal achieves a satisfactory level of consistency with the B7 DFC Statement. 74 Based on the limited area of disturbance, the location within a road reserve and the generally poor condition of this part of the road reserve, I accept that the proposed development is consistent with the B7 DFC Statement. Is the proposal consistent with the general principles of development? 56 Retaining unique environmental features on-sites 75 This general principle of development requires a development "to retain and complement any unique environmental features of its site" and "be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland …" 76 Mr Leggat submitted that the Court should accept that the design complements the natural sandstone outcrops by minimising the cut into the outcrops and the retention of any part of the outcrops not required for the road. Mr Leggat also questions whether the natural sandstone outcrops are in fact unique, based on the evidence of Professor Adam. 77 In my view, this submission must be rejected. The general principle of development requires the retention of any unique environmental features and not just the minimisation of any impact on these features. In my understanding of this clause, unique does not necessarily have the meaning of an iconic natural feature but more the natural features found in the B6 locality. In my reading, this is not inconsistent with Professor Adam's evidence. 78 In this context, I have little trouble in concluding that the existing sandstone outcrops are unique environmental features. I note that Mr O'Grady classifies some of the rock outcrops as having very high quality. I also do not accept that the road, under any assessment can be seen to complement or is sympathetic to the rock outcrops and remnant bush land due to the excessive amounts of the rock outcrops that are proposed to be removed (see pars 58 to 63). 79 On the basis of the findings in the preceding paragraph and in accordance with cl 12(1), I am satisfied that the proposed development is inconsistent with the general principle of development in cl 56. 80 57 Protection of existing flora This general principle of development requires a development "to minimise the impact on remnant indigenous flora". 81 Even though the proposed road minimises impact on existing flora within the proposed corridor, the assessment required under this clause needs to consider its location in an area where there are significant restrictions on development. In this context, the proposed road could not be seen to minimise impact on remnant indigenous flora (see pars 48 to 57). 82 On the basis of the findings in the preceding paragraph and in accordance with cl 12(1), I am satisfied that the proposed development is inconsistent with the general principle of development in cl 57. 77 Landfill 83 This general principle of development requires landfill to have "no adverse impact " on the visual and natural environment. 84 The amount of fill proposed is relatively small when compared to the levels of cut required to construct the road. Even though the test in this clause is relatively high by requiring no adverse impact, I am not convinced that the levels of fill create an adverse impact on the visual and natural environment. 85 On the basis of the findings in the preceding paragraph and in accordance with cl 12(1), I am satisfied that the proposed development is consistent with the general principle of development in cl 77.

Clause 16(2) of the LEP 86 Clause 16(2) relevantly provides: Development applications for existing Category Three development consisting of: (a) alterations or additions to, or the rebuilding of, a building, or (b) the expansion or intensification of the existing Category Three development when, in the opinion of the consent authority, is of a minor nature and has not, to any significant extent, changed the scale, size or degree of any building or land use, may be granted consent even if the development is not consistent with the desired future character of the locality. 87 Mr Leggat submits that the proposed development has characteristics that bring it within the type of development that can be dealt with by this clause. The footprint will be less than 3% of the total area of the site even after the construction of the Greenhaven development, the access way is merely a link between two existing roads and the proposed development is relatively insignificant in comparison to the existing approved development. 88 Mr Leggat further submits that the present development application is on any reasonable objective view a minor extension of the development approved in 1988. The nature of this clause is ignored and given no operation, if the nature, scale and size of the proposed village is not used as the basis for the assessment required by cl 16(2). 89 Mr Preston submits that cl 16(2) only operates if the preconditions in cl 16(2)(a) and (b) are satisfied. He submits that the proposal does not involve alterations or additions or rebuilding of a building (16(2)(a)) or the expansion or intensification of the existing Category Three development (16(2)(b)). The approved development is not a Category Three use and even if a minor part of the proposed development is located within the crosshatched area, only that very minor part could be classified as a Category Three development. The balance would remain as Category One. As such, the proposal cannot be fairly or reasonably described as being an extension or intensification of a Category Three development. Rather, it is a new vehicular access for the whole of the approved development. 90 On this matter I agree with the submissions of Mr Preston and find that the provisions of cl 16(2) are not available to the applicant. Sufficient information to satisfy cl 15(1) of the LEP 91 Mr Preston submits that there is no document or documents addressing the requirements contained in cl 15(1), particularly items 4, 5(a), (c) and (d) and 7. As this precondition has not been met, the Court cannot reach the stage of assessing the merits of the proposal. 92 Considering the previous findings where the development application has found to be unacceptable, it is unnecessary for the Court to make any specific findings on this issue. Orders 93 For the foregoing reasons, the Orders of the Court are: 1) The appeal is dismissed. 2) Development Application No. 2004/0460 for the construction of an access driveway to an approved, but not yet constructed, retirement village off Lantana Ave, Wheeler Heights is refused. 3) The exhibits are returned with the exception of exhibits 1 and 2.

      G T Brown
      Commissioner of the Court

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

CITATION : Montego Cay Pty Limited v Warringah Council [2005] NSWLEC 288

RSL Veterans' Retirement Villages Limited v Warringah Council [1998] NSWLEC 100; Mackenzie v Warringah Council [2002] NSWLEC 131; CASES CITED: DEM Gillespies Pty Limited v Warringah Council [2002] 124 LGERA 147; Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council 53 LGRA 322

29 The parties also agreed to the appointment of Associate Professor Paul Adam as the Court appointed ecological expert. 30 Joint reports were prepared and resulted in general agreement on the stormwater and design issues and limited disagreement on the geotechnical issues. The assessment approach 31 Mr Brian Preston SC, the councils advocate and Mr Craig Leggat, the applicant's advocate agreed that cll 12(1) and 12(3) establish jurisdictional pre - conditions that must be satisfied before a consent authority can consider the merits of the application. 32 Clauses 12(1) and 12(3) require a finding of consistency with their relevant requirements. The Court has addressed the meaning of "consistent with", differently in relation to the LEP. Pain J in Mackenzie v Warringah Council [2002] NSWLEC 131, at par 99, applied the meaning "not antipathetic, nor incompatible or inconsistent with" whereas Bignold J in DEM Gillespies Pty Limited v Warringah Council [2002] 124 LGERA 147 at 166 [7] applied the meaning of "agreeing or accordant; not self-imposed or self-contradictory; consistently adhering to the same principles, course, etc" 33 Mr Preston submitted that in this case the difference was not critical given the terms of the B6 DFC Statement although there are reasons why the meaning applied in DEM Gillespies should be used. It was his submission that if tested under either under the Mackenzie meaning or the DEM Gillespies meaning, the proposed development could not be seen to the consistent with the B6 DFC Statement. 34 Mr Leggat also did not seek to rely on a particular meaning but submitted that under either test, the proposed development would be consistent with the B6 DFC Statement. 35 Mr Leggat took the Court on a particularly forensic examination of the wording in the B6 DFC Statement however I am not convinced that it was necessary or overly helpful. The manner in which I propose to address the interpretation of the B6 DFC Statement is set out in the judgement of Cripps J in Hecar Investments No. 6 Pty Limited v Lake Macquarie Municipal Council [2002] 53 LGERA 322, where His Honour states (at 323): I adopt, with respect, the observation of Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 923, 924 that when interpreting delegated legislation, the court ought be concerned with practical considerations rather than construing it by meticulous comparison of the language of the various provisions such as might be appropriate in construing sections of an Act of Parliament and that if that language is capable of more than one interpretation, a court ought discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practical result. Is the proposal consistent with the B6 DFC Statement? The council's evidence 36 Ms Laidlaw states that the fundamental thrust of the B6 DFC Statement, particularly for the crosshatched area, is captured by the description "visually and ecologically significant vegetation species and communities and significant natural land forms will be preserved in natural state". She comes to this conclusion because the land is not part of the existing residential area nor part of the area identified for building work in the 1998 approval, and as such those parts of the DFC Statement that relate to the built environment are not relevant. 37 Additionally, Ms Laidlaw notes the 1988 approval pre - dates the making of the LEP and consequently the DFC Statement reflects the approval by restricting any development to the area not shown crosshatched. The delineation of the crosshatched land had been the subject of intensive investigation as to its ecological and natural qualities as part of the hearing before Pearlman J. Attachment 3 provides an overlay of the crosshatched area boundaries and the building layout in the 1988 approval. Even though the crosshatched area was designed to mirror the 1988 approval there are number of small encroachments. These encroachments however do not challenge the intent of the DFC Statement. 38 Ms Laidlaw further states that the DFC Statement addresses the preservation of vegetation and land forms in a more general manner, rather than referring to "threatened species" and "endangered ecological communities". In her opinion, if the DFC Statement sought to include the "threatened species" and "endangered ecological communities" it would have clearly spelt this out in the DFC Statement. 39 In her assessment the vegetation and landforms on the site of the proposed new road constitute "visually and ecologically significant vegetation species and communities and significant natural land forms". As these will not "be preserved in natural state", Ms Laidlaw concludes that the proposal is fundamentally inconsistent with the DFC Statement and antipathetic to it's planning intent.

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Judgment (8 paragraphs)

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Cases Cited (3)