PGH Environmental Planning v Wollongong City Council

PGH Environmental Planning v Wollongong City Council - [2009] NSWLEC 1385 - NSWLEC 2009 case summary — Zoe

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JUDGMENT Introduction 1 SENIOR COMMISSIONER: Sada Services Pty Limited (the company) has landholdings of approximately 600 ha at Maddens Plains to the south of Helensburgh behind the Illawarra escarpment. The holding is in seven allotments - six of which are substantially sized and the final one of them, Lot 74, is an irregularly shaped allotment at the principal entrance to the company's landholding from the Princes Highway. Several of the allotments have telecommunications cables running underground through parts of the proposed building envelopes. These, however, do not provide any constraint on development. For the purposes of this judgement, the totality of the company's landholding is referred to as the site 2 The company has lodged six separate development applications with the Wollongong City Council (the council). Each of these applications seeks consent for a dwelling house and each of the applications relates to one of the six principal allotments in the company's landholding. Lot 74 is proposed to be consolidated with the adjacent larger lot, Lot 1. The council has refused each of these separate development applications - as a consequence these appeals - one for each development application - were heard together (with, to the extent relevant, evidence in one being evidence in each other appeal). 3 To enable a proper understanding of the following discussion of these proposals, a plan showing the layout of these allotments together with the six proposed house sites and various internal features of the company's landholding is reproduced below: 4 The company's landholding comprises primarily bushland (although it is crisscrossed by electricity easements and transmission lines and a series of internal tracks - a number of which are associated with the transmission lines but not exclusively so). One internal bitumen sealed road running from the principal entrance to the site from the Princes Highway, leads to a location at which, in the past, extensive volumes of coal washery waste have been dumped. 5 In the centre of the site toward its north, is located a dam on a separate allotment - this allotment, Lot 2, is not owned by the company. This dam is owned by Illawarra Coke Company Pty Ltd (Illawarra Coke) and is used by this latter company as the source of water supply for the operation of its coking works - these works are to the east and below the escarpment. As part of the proposed arrangements envisaged for some elements of this proposal, Illawarra Coke and the company propose the creation of reciprocal rights of way for access purposes.

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31 The critical word in considering whether or not each of the proposals is consistent with this zone objective for the 7(b) zone is the word "enhance". The concept imported by the use of the word "enhance" is not merely evaluative or neutral in the attributes that must be ascribed to any development when assessed against this objective of the LEP - there must be some positive outcome of the development for the area - in this case each allotment. 32 There are no "special .............., aesthetic or scenic qualities" of the site - the element of this objective that is relevant is the "special conservational ......... qualities" of the site and its component allotments. 33 Although there are marginally different circumstances as the various building envelopes are able to utilise degraded areas of the site such as roadways or tracks to differing extents as part of the building envelope for each allotment, nonetheless these differences would not alter the circumstances for each of the allotments sufficiently to require different conclusions concerning them. Indeed, the interdependence of the six proposals makes it impossible to consider the benefits claimed by the company without considering them all as a package on matters such as site security or weed control. 34 It is the company's position is that there will be a positive contribution or enhancement to the conservational values of the site as a consequence of various activities that will result from the initial preparation phases (from time of consent to erection of the dwellings) and from ongoing benefits of occupation of the dwellings. 35 I therefore turn to consider both the benefits claimed by the company and the impacts that will arise - I do so to assess whether the overall result is an "enhancement" or not of the "special conservational ......... qualities" of the site. 36 The Rural Fire Service has published a manual entitled Planning for Bushfire Protection. This document sets out, for various types of development in bushfire prone areas, the protective objectives to be pursued and a range of appropriate measures to be implemented to ensure that the objective is achieved. Essentially, the aim of the manual is to endeavour to eliminate, as far as is possible, risk to the lives and well-being not only of occupants of properties in fire prone areas but also risk to the lives of emergency services personnel who may be called upon to respond to a fire. In addition, the manual includes objectives and implementation measures that are designed to afford the maximum reasonable protection to structures such as houses that are erected in bushfire prone areas. Planning for Bushfire Protection played a significant role for each of these proposed dwellings as a consequence of the provisions of section 79BA of the Environmental Planning and Assessment Act 1979 (the Act). 37 Each of the allotments requires the construction of the access road from the end of the bitumen sealed internal roadway to the public road running along the southern boundary of the site. This is a consequence of the requirement in Planning for Bushfire Protection that any dwelling that is more than 200 m from a public road requires two egress routes to reach a public road. The consequence of this requirement is that the construction of all weather two wheel drive egress to the public road to the south will require clearing of elements of that bushland. This impact will arise whether approval is given for all six dwellings or for some lesser number. 38 For the house sites on all allotments (other than Lots 4 and 5), road upgrading to all weather two wheel drive standard will be required for varying lengths of existing internal bush tracks - tracks that are of varying present construction standards but less than acceptable two wheel drive standard at present. 39 Further, regular maintenance by trimming of vegetation along the sides of the internal access roads will be required to ensure that the necessary vehicle clearances are maintained on an ongoing basis. 40 First, the company says that the initial road reconstruction elements involve addressing and rectifying present problems of erosion, drainage and the like. However, there will also be the countervailing influence of the necessity for significant upgrading of all the necessary internal roads apart from the one that is presently bitumen sealed. These impacts will include the clearing of elements of vegetation not merely to ensure minimum carriageway widths are established but also, at appropriate locations designated in the internal road network plan, to permit passing bays required by Planning for Bushfire Protection, to be incorporated. 41 Even if, for example, only the development on Lot 1 or Lot 5 were to be approved, there would still be the necessity for the construction of the access road to the public road along the southern boundary. 42 As a consequence, although there will be some benefits from the construction of the internal road network, there will also be countervailing adverse impacts. At the very best, in my view, the overall weighing of benefits and impacts from the initial road reconstruction (if it were a minimalist model) could be described as neutral at its highest. 43 On the other hand, it was obvious from the site inspection that the greater the length of track reconstruction that is necessary, particularly of the loop road to service the two northern building envelopes, the greater the likelihood that the impact would be negative rather than neutral. It is certainly not appropriate assume that the road construction activities of the maximum construction of the whole of the necessary internal network, would result in an enhancement of the "special conservational ......... qualities" of the site for the purposes of the first zone objective. 44 The possibility of preventing environmental impacts from construction and ongoing occupation of the various building envelopes, apart from the initial clearing to meet the asset protection zone requirements of Planning for Bushfire Protection, is dealt with in a later section of this decision dealing with the question of reasonableness of the necessary conditions of development consent for this to be realised. 45 I proceed, therefore, on the basis that those conditions could provide a framework with the potential to render the erection of all of the dwellings, on the individual building envelopes, neutral in an environmental sense. However, it is not possible to disregard the fact that clearing of over 6.5 ha of bushland is a necessary precursor to erection of these dwellings. This bushland is agreed by the experts to be in a largely unmodified state (the exception being degraded land comprising part - but not the entirety - of the building envelope on Lot 1). This bushland would need to be cleared to the extent necessary to meet the asset protection zone requirements of Planning for Bushfire Protection for these dwellings to be permitted. This involves removal of virtually all vegetation in the inner asset protection zones (these comprising the bulk of the areas to be cleared - with all vegetation able to be retained to be slashed to 10 cm high on a regular basis). The house footprints, self-evidently, require the removal of all vegetation. Although some trees may be retained in the outer asset protection zone, their canopies may well require maintenance pruning (depending on the extent that trees are possible to be retained). 46 The building envelope on Lot 1, (although more degraded as it incorporates not merely part of the internal road network [as is the case with each of the other building envelopes] but also incorporates a track intersection and portion of two other tracks together with an area that has led some environmentally unfriendly fill placed on it in the past), nonetheless still involves the clearing of an element of undisturbed bushland. None of this bushland clearing could possibly be regarded as an enhancement of the "special conservational ......... qualities" of the site for the purposes of the first zone objective. 47 As discussed later in more detail concerning the reasonableness of the necessary conditions of consent, there is already, on all the allotments, significant weed infestation. Weed infestation, in this context, relates to two types of plant. The first of these are weeds that are categorised by statutory proscription and with respect to which there is a statutory obligation to undertake weed control measures. The second category is those that are environmental weeds - being plants that are undesirable in their local bushland context but which are not proscribed and where, therefore, the "obligation" to remove or control them is a moral and environmental one rather than one imposed by statutory obligation. 48 With respect to weed control generally, the company is currently spending $20,000 per annum on weed control. No evidence was given as to the proportion of this sum that might be regarded as applied to meeting statutory obligations and the proportion of the sum that might be regarded as applied to meeting the moral or environmental "obligations". For reasons which follow I do not consider that such issues of apportionment would make any difference in these proceedings. 49 To the extent that weed control is a statutory obligation, the company is obliged to undertake it whether or not these dwellings are permitted. The statutory obligation for weed control will not change whether or not the dwellings (any or all) are permitted. This aspect of weed control cannot constitute enhancement of the "special conservational ......... qualities" of the site for the purposes of the first zone objective. 50 However, to the extent that the company is undertaking environmental weed control, it is doing so against a moral or environmental "obligation" only. To the extent that such a moral or environmental "obligation" would be able to be transmuted by conditions of development consent to statutory obligation would represent an enhancement of the "special conservational ......... qualities" of the site for the purposes of the first zone objective.

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51 In addition, the site has been used, extensively, in the past as a dump for stolen vehicles and for the riding of trail bikes and the like. Although there have been attempts to provide security to prevent this (including determined attempts at barriers such as extra heavy duty access gates, bollards on perimeter tracks and the creation of the earth mounds at entrance points on tracks into the site), these measures have not deterred these uses. The company says that the erection of the dwellings will enhance the environmental protection because of the added security that is provided by the presence of the dwellings on the site will lower or eliminate such antisocial behaviour and activities. 52 Although I accept that there will be a degree of deterrence provided if the dwellings were to be constructed, the maze of tracks within the site and the fact that some of the elements tried in the past (such as the heavy concrete block bollards used by Illawarra Coke in an endeavour to prevent people on vehicles such as trail bikes leaving the principal tracks) also shows that the bushland intrusion is not merely confined to use of the present extensive network of tracks - and that it is not readily preventable by physical barriers. 53 However, I accept that the additional weed management obligations and the likelihood of improved site management are positives to be weighed in the company's favour in my assessment against the first zone objective. 54 Against this, however, is to be weighed the clearing of the significant areas of bushland for five building envelopes and the lesser clearing for the building envelope on Lot 1. 55 On balance, I do not consider that the unquantifiable benefits of the weed control that would be obtained (over and above the statutory obligation for weed control that currently lies with the company) and the also unquantifiable security (and thus bushland protection benefits) from the presence of any future occupants of any of the dwellings that might be permitted, would outweigh guaranteed certainty of the loss of ~ 6.5 ha of this bushland. Overall, in my view, there is no demonstrated net enhancement of the "special conservational ......... qualities" of the site for the purposes of the first zone objective. 56 I have considered whether a special position (and thus different result) arises for the proposed dwelling on Lot 1 as the extent of the necessary clearing of quality bushland is, as earlier noted, significantly less for this building envelope. Although the impact would be less, so the benefits would also be less (let alone the difficulty of how I might require construction of the southern bushfire egress and its ongoing maintenance). However, the uncertainty of benefits against the certainty of impact, for this lot on its own, both being lesser, means that the company's evidence and submissions do not persuade me that an exception should be made for Lot 1. 57 As a consequence, as all the proposals are not consistent with the first of the objectives of the 7(b) zone, it therefore follows that each of these development applications must be refused. Clauses 14 and 17 of the 1990 LEP 58 As a consequence of my finding that all of the proposed developments are not consistent with the first of the zone objectives and thus require refusal on the basis, it is not necessary to consider the subsidiary issues raised by cll 14 and 17 of the 1990 LEP in any detail. 59 With respect to cl 14(1)(e) and (g), adequate vehicular access would be available to the four more southern building envelopes but, as discussed later, would not be available to the two more northern building envelopes. The expert evidence is that, subject to the application of agreed conditions, each proposed dwelling-house will be provided with an adequate water supply and means of disposal of sewage. 60 With respect to cl 14(1)(f), in my discussion of the zone objectives, I deal with the impact of the proposals by vegetation clearance. For the reasons there set out, this will clearly detract from the environment. For the reasons set out below dealing with the outlook and amenity of the various proposed houses, I am satisfied that there will be no impact on the environment by way of visual intrusion by any of these proposed dwellings. The questions of drainage pollution or bushfire risk are dealt with by agreed conditions of consent and there is no question, apart from the overall reasonableness of the package of conditions of consent, why drainage pollution and bushfire risk would not be adequately dealt with by the technical requirements of these conditions. 61 With respect to the relevant matters in cl 17, I am satisfied that, should each of these proposed dwellings be approved, each proposal minimises any detrimental impact on the environment by way of vegetation clearance, drainage pollution or bushfire risk for such a dwelling at each relevant site (if such dwelling and associated activities were to be undertaken). The fact that each proposal minimises such detrimental impacts does not, however, render the detrimental impacts acceptable for the reasons earlier discussed relating to consistency with the zone objective which does not envisage any net detrimental impacts on the conservational values of the site (the contrary being the position). The Draft LEP 62 As I have held that there proposals are inconsistent with the first of the zone objectives under the 1990 LEP, I do not consider that I need to rely on the draft LEP as a basis for underpinning the refusal of the proposals. 63 However, if I am wrong in reaching this conclusion, given that the draft LEP is imminent and certain, it is to be given significant weight in these proceedings. The existence of cl 1.8A in the draft LEP does not derogate from this position. 64 Taking into account the imminence and certainty of the making of the draft LEP, this would constitute a significant factor to be added to the matters of inconsistency with the zone objectives under the 1990 LEP so that, if those inconsistencies were not sufficient in themselves to warrant refusal, the imminence and certainty of the making of the draft LEP, when added to those inconsistencies, would certainly warrant refusal of each of the proposals.

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Issues raised across all six allotments 65 However, if I am wrong in determining that all the proposals should be refused on the bases discussed above, I now turn to consider whether or not the range of conditions that would be necessary to be applied if development consent were granted to the proposals would, as a package, be so unreasonable that it would not be reasonable to expect that they are likely to be met in circumstances where failure to observe, punctiliously, the complete range of conditions of development consent is fundamentally necessary to the environmental acceptability for these proposals. 66 During the course the hearing, the various expert witnesses on behalf of the company and the council, across a range of disciplines, although disagreeing about a number of technical matters in their relevant disciplines (with the nature of the disagreements varying depending on the allotment being discussed), as a collective result of the various groupings of discussions agreed on an overall suite of conditions of development consent that would be necessary to be imposed on all the allotments if the dwellings were to be approved. 67 Each of the allotments will require a range of works to be undertaken before any construction work would commence on a dwelling on that allotment's building envelope. These conditions would require the relevant initial road upgradings and relevant aboriginal site investigations. Then the bushfire asset protection zone clearing for each building envelope would take place. 68 Although these conditions would be more onerous than those that would be required under more conventional circumstances, in my opinion they would not preclude, on any planning grounds, refusal of development consents because the completion of all of these works can be required prior to commencement of construction of any dwellings. 69 Similarly, although quite onerous conditions would apply during the construction of any of the dwellings, these, with the possible exception of the scope of the ban on importation of soil and other landscaping materials, do not create any impediments to the granting of development consents. However, as the ban on importation of soil and other landscaping materials contributes to the overall unreasonableness of the suite of conditions necessary to be observed on an ongoing basis, it is un-necessary to consider its impact on the possibility of any initial granting of development consents. 70 The critical area where the necessary conditions of consent require consideration are those that relate to the conditions that would need to be observed by the occupants of each dwelling on an ongoing basis. 71 Because these necessary conditions of consent arose from agreed positions between the relevant experts or, in some cases, the experts in a number of disciplines, it is unnecessary that the evidence giving rise to these conditions be analysed extensively. 72 In addition, for the reasons discussed below concerning the nature and cumulative unreasonableness of [and thus improbability of compliance with] the suite of conditions necessary to be imposed on each development (if consent were to be granted), it is also unnecessary to do a detailed, allotment by allotment, analysis of the comparatively limited areas of disagreement between the various expert witnesses. I therefore propose to record, briefly, these areas where there was agreement concerning restrictions which needed to be imposed.

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Private open space utility and the maintenance of the asset protection zones 73 For the purposes of ensuring that appropriate bushfire protection levels would be maintained to any dwelling, it was the agreed expert position that any vegetation within the inner asset zone for each dwelling would need to be slashed or mown so that this vegetation did not grow higher than 10 cm above ground level. 74 For reasons discussed below concerning importation of soil, it is unlikely that anything could be grown other than a limited range of native grasses, of a type that would not form a lawn and, on the expert flora evidence, would not be likely to create a particularly usable outdoor space. The specific vegetation for the "rain gardens" is encompassed in this description. 75 The alternative to such limited vegetated groundcover will be coverage of these areas of cleared ground with some form of inert and acceptable pebble-like material that is also not likely to create a particularly usable outdoor space. 76 It was submitted on behalf of the company that there would be an extensive track network available by a range of mutually interdependent easements for walking or jogging and that no reliance was necessary on any of the bushland areas to provide recreational opportunities for residents apart from such activities as an informal walk into the bushland without creating any form of formalised track. Accepting this proposition at its highest, there will still be extremely limited recreational opportunities for residents within the site and extremely limited utility of the private open space within the asset protection zone curtilage of each dwelling. Road maintenance 77 The company accept is that it would be necessary for it to bring to acceptable standards all of the proposed bushfire egress roads together with the to-be-constructed two wheel drive all weather link from the internal bitumen sealed road near the building envelope on Lot 5 to the public road that runs along the southern boundary of the site. It is also my understanding that this standard would need to be achieved in prior to construction commencing of any of the houses. 78 As a consequence, any costs of these initial works are costs of the development risk of the projects and would be incorporated in the selling price of any allotment. That is an economic risk that would fall on the developer as to whether or not any or all of the proposed allotments could fetch a sufficient price to recoup the costs necessarily incurred. It is not a matter that requires my consideration these proceedings. A significantly different position applies, however, to the fundamental necessity for ongoing maintenance of the totality of the internal road network to ensure that, at all times and under all conditions, it remains two wheel drive trafficable. 79 During the course of the hearing, expert witnesses on behalf of the applicant and the council considered the cost of this necessary road maintenance. As a consequence, a schedule of annual maintenance costs was developed and it was tendered reflecting two development models. The first development model was predicated on the totality of the proposed developments being approved and the second prepared on the basis that the two more northern building envelopes, those on Lots 1A and 3, were not approved. The first development model was costed on two bases - these being, first, with no sharing of the cost by those allotments that obtain a secondary bushfire egress benefit from some of the roadworks and the second version making provision for such secondary bushfire egress benefit. As the second of these versions is more favourable to the company (as it is more redistributive), I have included it. 80 Prior to setting out these tables of costs, it is appropriate to note that the acceptability of the maintenance regime that is postulated would require each and every one of the putative owners of the proposed dwellings to meet their road maintenance obligations on an ongoing basis without exception. 81 The costs in each of the two models are set out in the following tables: With dwellings on Lots 1A and 3 $ pa Without dwellings on Lots 1A and 3 $pa Lot 1 8,394 Lot 1 5,706 Lot 1A 26,199 Lot 4 2,802 Lot 3 23,652 Lot 5 917 Lot 4 2,497 Lot 6 4,433 Lot 5 612 Total $13,858 Lot 6 8,011 Total $70,942

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The outlook from and amenity of each house site 99 I have considered whether there are any elements of the outlook from or ambience of any of the building envelopes that would be so special as to create some imperative in a particular market that might attract potential purchasers who would be prepared to accept the onerous conditions that would otherwise be, as discussed above, sufficiently unreasonable as to warrant refusal of the proposals. The matters I have considered in concluding that there are no such circumstances are discussed below. 100 It is clear from the site inspection; an examination of the aerial photographs; and an examination of the topographic maps, that houses built within the building envelopes on Lots 1A, 3 and 5 are unlikely to have the any outlook of any significance (if at all) beyond the perimeter of the asset protection zone within which each of these houses is to be constructed. A dwelling constructed within the building envelope on Lot 1 will have views to the north-east, across the upland swamp, to the vegetated areas beyond. A house constructed within the building envelope on Lot 4 may have some filtered views to the north-east down the line of the upland swamp that commences in the vicinity of the north-eastern corner of this building envelope. 101 Finally, it is possible that the house in the building envelope on Lot 6 may have filtered views to the north-east, down the valley and including some ocean elements. Because the building envelope on Lot 6 was redesigned in order to withdraw it from a rock shelf to the north and north-east (which rock shelf was a potential aboriginal site), the extent to which vegetation might filter any views from this building envelope is not clear as we did not walk through this building envelope to in the course of the site inspection. 102 There is nothing exceptional about the outlook from any of these house sites, in my view, that would offset the onerous and otherwise unreasonable range of conditions necessary to be imposed and observed to ensure that there are no adverse conservational impacts of the proposed developments.

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Bushfire egress from Lots 1A and 3 103 However, if I am wrong in all of the bases set out above for refusing all of the developments, I now turn to consider, separately, the adequacy or otherwise of bushfire egress from Lots 1A and 3. 104 Concerning the proposals for Lots 1A and 3, I have separately reached a discreet conclusion concerning the unacceptability of the building proposals on each of those allotments. This arises from my consideration of a single issue concerning these allotments that I consider is determinative - namely the entirely unsafe and inadequate nature of bushfire egress for these two proposed dwellings. This is discussed in detail below. Lot 1A 105 Lot 1A is the most northerly of the six allotments upon which residences are sought to be erected. It is with respect to this allotment (and Lot 3) that the council says that the proposed primary and secondary routes for bushfire egress are so unsatisfactory that, on this basis alone, these two proposals should be rejected. 106 During the course of the proceedings, I disclosed to the advocates for the parties that, in my younger days, I had been a member for over 20 years of a Volunteer Bush Fire Brigade (this being before the days of the present Rural Fire Service). That experience has been relevant in these proceedings only to the extent of assisting me to weigh the evidence of two bushfire experts, Mr Peterson for the applicant, and Mr Jarvis for the Council. Planning for Bushfire Protection makes it clear that it is desirable for residences in fire prone areas that are at a distance of more than 200 m from the nearest public road to have both a primary and a secondary emergency egress route. The building envelope on Lot 1A clearly requires this. 107 The proposed building envelope on Lot 1A is to have two emergency egress paths. They can be seen, clearly on the plan of the site inspection earlier reproduced. The primary egress route is to the south and south-west, traversing Lot 1A along its western boundary; across the corner of Lot 6; then through a Lot 1 passing the proposed building envelope on Lot 1; and then exiting, across Lot 74 to the Princes Highway. The total travel distance along this emergency egress path is ~ 2.5 km. 108 The secondary emergency egress path for this building envelope is to the south-east, across Lot 1A; across part of Lot 3 and Lot 2 (this being the allotment not the subject of the application where the Illawarra Coke dam is located) before turning generally to the south in the vicinity of the building envelope of Lot 3; continuing across Lot 3 and then on to Lot 6 running past the building envelope on Lot 6 to turn toward the south-east on the existing internal bitumen sealed road; across Lot 4 and past the access to the building envelope on Lot 4; through the edge of the building envelope proposed for Lot 5 and along the to-be-constructed all weather gravel surfaced roadway onto the public road along the southern boundary of the site that leads west to the Princes Highway. This secondary emergency egress path is approximately 3.6 km long.

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112 It is therefore appropriate to turn to the nature of the proposed egress roads for this building envelope. The right of egress over portions of the road not contained within Lot 1A is to be provided for, in a legal sense, by various rights of carriageway and I am satisfied that appropriate legal egress is capable of being established (both along the primary and secondary egress routes) - not only for this allotment but also for all other allotments. 113 The road, at the present time, along either of the egress routes from this building envelope could not be described as being of two wheel drive or all weather standard. Indeed, at least some small parts of it (such as that across the human-modified sandstone spillway for Illawarra Coke's dam) is clearly four-wheel-drive only. For the full length of the primary and secondary egress routes from this building envelope to the point where these egress routes joined the internal bitumen sealed road (either in Lot 1 or in the vicinity of the boundary between Lots 4 and 6), the road is proposed to be upgraded to an all weather two wheel drive road. Three comparatively short sections are to be bitumen sealed but the balance of length of this loop, totalling approximately 4 km, is to have a natural surface. 114 For the section of the primary egress route immediately to the south of the building envelope on Lot 1A, part of this route climbs reasonably steeply with this section to be bitumen sealed. For the section of the secondary egress route to the south of the building envelope on Lot 3, the route climbs, also reasonably steeply, with the steepest point on this road element to be bitumen sealed. 115 To ensure proper functional drainage of these sections, a significant number of rollover crossover drains are required, with there to be approximately 35 between the building envelope on Lot 1A and the top of the hill to the south along its primary emergency egress route and a similar number from the building envelope on Lot 3 to the south of the top of the hill on the secondary egress route from Lot 1A. Each of these drainage structures will require slowing down for passage across it in a two wheel drive vehicle.

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Lot 3 127 As the bushfire egress issues concerning Lot 3 are a mirror image of those arising on Lot 1A, the application for a dwelling on Lot 3 must also be refused on separate bushfire egress bases. Conclusion 128 I have concluded that all six dwelling proposals should be refused on the basis that all are inconsistent with the first of the zone objectives of the 7 (b) (Environmental Protection Conservation Zone) as none of them provides any enhancement of the "special conservational ......... qualities" of the site for the purposes of the first zone objective. 129 I have also concluded, if I am wrong concerning inconsistency with the first of the zone objectives, that all six dwelling proposals should be refused because the range of conditions necessary to be imposed with respect to each dwelling (although varying from dwelling to dwelling) are so onerous and unreasonable that it is not reasonable to expect compliance with them and the consequence of non-compliance, on the expert evidence in the proceedings (including evidence from the company's own experts) would result in unacceptable environmental impacts. 130 If I am wrong in refusing all six dwelling proposals on both the bases set out immediately above, I have further concluded that separate and discreet grounds concerning unsafe bushfire egress require the refusal of the dwelling proposals on Lot 1A and on Lot 3. Orders 131 In Matter No 11235 of 2008, the orders of the Court are: 1. The appeal is dismissed; 2. Development Application DA-2007/67 for the erection of a dwelling on Lot 1A in DP 752054 at Maddens Plains is determined by the refusal of development consent; and 3. The exhibits, other than Exhibit 1, are returned. 132 In Matter No 11236 of 2008, the orders of the Court are: 1. The appeal is dismissed; 2. Development Application DA-2007/66 for the erection of a dwelling on Lot 1 in DP 248386 at Maddens Plains is determined by the refusal of development consent; and 3. The exhibits, other than Exhibit 1, are returned. 133 In Matter No 11237 of 2008, the orders of the Court are: 1. The appeal is dismissed; 2. Development Application DA-2007/68 for the erection of a dwelling on Lot 3 in DP 1019453 at Maddens Plains is determined by the refusal of development consent; and 3. The exhibits, other than Exhibit 1, are returned. 134 In Matter No 11238 of 2008, the orders of the Court are: 1. The appeal is dismissed; 2. Development Application DA-2007/67 for the erection of a dwelling on Lot 4 in DP 1019453 at Maddens Plains is determined by the refusal of development consent; and 3. The exhibits, other than Exhibit 1, are returned. 135 In Matter No 11239 of 2008, the orders of the Court are: 1. The appeal is dismissed; 2. Development Application DA-2007/67 for the erection of a dwelling on Lot 5 in DP 1019453 at Maddens Plains is determined by the refusal of development consent; and 3. The exhibits, other than Exhibit 1, are returned. 136 In Matter No 11240 of 2008, the orders of the Court are: 1. The appeal is dismissed; 2. Development Application DA-2007/67 for the erection of a dwelling on Lot 6 in DP 1019453 at Maddens Plains is determined by the refusal of development consent; and 3. The exhibits, other than Exhibit 1, are returned.

At a glance

Court

Decision date

Source

Judgment (56 paragraphs)

Parties

Cited By (1)