The Applicant's view of how the case should have been run was very different from that of the Council's. This was clear from the first day of the hearing at Katoomba:
"DOYLE: Can I foreshadow an application we can make tomorrow and, that is, my friend has gone through a lot of applicable regulations as broad over summary but we say that under section 56 of the Civil Procedure Act you can only run real issues and you've got be aiming on the just, quick and cheap resolution. We say to involve all those aspects you must have put in your contention complete particulars of which of those you say applies because this is a court where the applicant must know the case he's got to meet. Whereas, if it hadn't come before the court, the council would be an approving authority and entitled to satisfy itself of those aspects and it would have a great deal of other information that's not before the court in order to satisfy itself to that.
But when it comes before the court it is a litigant, a litigant with the responsibilities and the requirement to show the applicant exactly the case he's got to meet. So we'll be saying tomorrow that you should look at the particulars provided and, where there are no particulars provided, you should strike out those sections of the contentions and where there are particulars provided the council should be restricted to running its case strictly within those particulars. That's the application we'll make when there's more time to consider it.
COMMISSIONER: Okay. And I would need to have explained to me why, standing in the shoes of the council, where there is a jurisdictional point raised by particular clauses within the LEP in particular but I still have to be satisfied myself, as the consent authority, that those have been met.
DOYLE: Yes. There's that aspect but there is a court that has to rely on the two litigants identifying those aspects and, of course, if the court identified an extra one that it needed to be satisfied with, that would be the initiative taken by the court but we can't have the council, in my view, come and read two hours worth of documentation and expect the applicant to respond to that rather than to a properly particularised set of contentions. So that's a submission I'll expand tomorrow, subject to directions."
(Tcpt, 17 June 2021, pp 31(39)-32(20))
Section 56 of the Civil Procedures Act 2005 reads:
56 Overriding purpose (cf SCR Part 1, rule 3)
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(3A) (Repealed)
(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3) -
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
(6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person -
(a) provides financial assistance or other assistance to any party to the proceedings, and
(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.
Note -
Examples of persons who may have a relevant interest are insurers and persons who fund litigation.
Section 56(1) refers to resolution of the real issues. What, in this matter, is a 'real' issue. When the hearing continued on the second day in Sydney, Mr Doyle return to the question of real 'issues' (p 3(50) in the passage below):
"DOYLE: The other applications that I wanted to make was that in respect of the jurisdictional issues that my friend outlined yesterday in the afternoon, where he went through a number of planned pieces of legislation and pointed out that there were jurisdictional aspects that might attract your attention, we suggest that he accept an instruction to list those and, in the listing, indicate the council's position. While we understand that you will need to be sure or be sufficiently comfortably with those jurisdictional aspects have been met, we think the necessary precondition to that was that the council lists them and the council set out its position because, for instance, if the council has a bundle of information that one or other jurisdictional aspects are satisfied and doesn't contend that it isn't, then that should be known to you in order that you can be satisfied that that aspect isn't an issue with the parties.
The other purpose we see that as satisfying is that the applicant has a fair chance of meeting a case that he's informed of. We shouldn't have to pick through the transcript of yesterday to find out matters that we need to satisfy which, in our view, might be beyond contention given the information already in the hands of the council. So we would ask for that direction and we think that's really properly interpreted. It should be set up as part of the initial statement of facts and contentions to start these proceedings, you know, in a different matter but, in any event, we'd ask that direction.
The other aspect that we wished, if I go on and outline shortly the other application we'd like to make, is that we say it is our submission that the issues that should be run in this matter must be real issues under section 56. The situation is then that we say that they're issues run by the council and which are not real issues which are something that shouldn't be brought to court and should be able to be resolved in our situation by suitable conditions if they're of any substance. So we would identify for the purpose of clarifying that application the contentions 1, 10, 13 and 16. We've had a little technical interruption with you which we'll try and solve if you can still hear me.
We say those aspects are not real issues and shouldn't cloud the hearing of the matter. So we would like you to, firstly, in our submission, adopt that this is a proper application that we ask you to decide whether they're real issues and, next, that if they're not real issues you should strike them out. The situation with that is that we say that real issues have got to disclose a real issue on the nature of the issue, the particulars given to it and, in some cases, the evidence that's led insubordinate. So the situation is that we ask that you consider that position and consider whether you will strike out those proceedings - sorry, those contentions.
Additionally, as an alternative in respect of contentions 13 and 16, we would invite you to order particulars of those because if you, for instance, decide that there are real issues against our contentions, we would ask that you ask the council to provide particulars of what it is the applicant will have to do meet. Because what we submit to you is this former pleading, where everything under the sun is rolled forward, is an abuse of process and we say it's demonstrated by the indigenous contention, which I think is contention 10.
COMMISSIONER: Which I thought--
DOYLE: And the situation there is that we say there's no basis for the contention in the first place.
COMMISSIONER: I thought that--
DOYLE: And that's been demonstrated by the expert report--
COMMISSIONER: Yes. And I--
DOYLE: --that our expert has had to go and do and we're saying it's not appropriate for the council to throw everything and the kitchen sink into the hearing and then expect the applicant and, by inference, the court to plough through these things and try and discern real issues between the applicant and the respondent.
COMMISSIONER: Well, I thought that yesterday there was agreement that--
DOYLE: They're the submissions that we would make shortly and we commend them to your attention.
COMMISSIONER: I thought that yesterday there was agreement that contention 10 was no longer pressed because with the information about a transcription error somewhere along the line in the recording of the sites, in fact, that particular material did not occur on the site and I thought that both parties were agreed in that and that contention 10 had already disappeared.
SETON: That's the case from the respondent, Commissioner. We agreed on that yesterday.
DOYLE: We understand that to be the case now but it should never have been run and we should say on the record it should be struck out because it never had any substance to it and we're concerned that the policy of the council is to run all these things, whether or not they have substance, and leave the applicant to try and hunt and pick to find the real case to answer. We say that's not appropriate. The council's obligation as a model litigant or under section 56 is to assist the court get a just, cheap and quick resolution to the matter. So we're asking you to rule on contention 10 as to whether it's a real contention and we say the evidence that supported in favour of it is none. We say that the particulars et cetera record a concern and not a real issue and we say that the council shouldn't be bringing these forward. I think the issue that we want to present to you is simple and we would ask you respectfully to rule on that and give short reasons."
(Tcpt, 18 June 2021, pp 3(26)-5(20))
"DOYLE: Which is the heritage conservation which we say is lacking in substance. The next one is 13 on page 33 of the statement of facts and contentions and we see it must be refused because it's not been demonstrated the proposal complies with the relevant provisions. Well, we say that's clearly not a real issue. We say it's not particularised. You don't know what you've got to deal with. The court's not helped because otherwise an applicant, if he treated that seriously, would have to plough through it and find out everything in it and then put an answer to what is now here an untenable proposition.
And we say, unless the court controls the councils by requiring them to adhere to their duty as model litigants and under section 56, then the situation is the applicant is denied a fair trial. He should know what case he has to meet and we say, from this, there's no knowledge of that aspect. So we would say that should be knocked out, struck out, and the council effectively, and other litigants as well, have the benefit of your reasons as to why that's a proper form of pleading. In which case, other litigants will have to deal with as best they can or, alternatively, that it won't be - it is in an acceptable form.
And, similarly, we would say in respect of contention 16, again, we say that that isn't a real issue. The real issue in this case is road construction and location, stream crossing and other real issues. It's not a situation where what would apply to every house on the northern side of the slopes is to be answered in respect of this. So we say that the case, if everything does what it should do, should be on refined and focused issues which assist the court in deciding them and the court could control the process to ensure that it's fair and reasonable and comment on those two - those contentions."
(Tcpt, 18 June 2021, pp 5(40)-6(20))
"DOYLE: It's more, I think, that there should be a real issue. That is, that an issue should be significant enough to be the subject of litigation. So we would say, as an example, that if a matter could be dealt with appropriately, like it's not a condition, that would be a matter that it should be dealt with in that way rather than raised as a full contention."
(Tcpt, 18 June 2021, p 7(11-15))
With respect to Mr Doyle it would appear to me that he did not recognise the nature of the process which was required of the parties. Before litigation had commenced, and while the Council was undertaking its assessment, the Council identified various matters over which it considered that more information and/or clarification was required. Some of this information was provided but not all. After the litigation commenced the Council was obliged to document what it considered were the facts and contentions at that stage in the process, and the contentions again stressed in some instances the need for more information. A number of the contentions raised jurisdictional issues. If, during the s 34AA conciliation the parties had reached an agreement, they would have been required to produce a jurisdictional submission in order that the Court could be assured that the agreement was one the Court acting as the consent authority could properly make. This would have required that the information which the Council had identified as necessary for making a decision was available and supported the making of the agreement. Clearly the information that appears to have been available could not have supported an agreement. It is notable that in the joint reports of experts there was substantial agreement between the experts in different fields, that lack of information prevented resolution of a number of issues. Rather than arguing that certain contentions were not real issues, when the information lacking in some cases could have been relatively easily obtained, it would have greatly assisted the Applicant if the information had been obtained. Applicants run their cases as they see fit and appropriate, but in so doing it must accept the consequences of their decisions.
In regard to Contention 10, relating to the possibility of an Aboriginal object having been found near to the subject site as was recorded in the Aboriginal Heritage Information Management System (AHIMS), it was incumbent on the Council when compiling the initial SOFAC to identify the possibility of an Aboriginal object having been present on and near by the site as an issue. It turns out that the official database contained a transcription error and that the object which had been found in 1958 was from another locality, so that the contention was no longer pressed. The Applicant's consultant on archaeology and heritage (Associates Archaeology and Heritage) who documented the transcription error and located the site from which the object had been reported considered it 'entirely reasonable' that a request for due diligence assessment to be undertaken had been made (Ex 1 at folio 54). Associates Archaeology and Heritage have reported the transcription error to AHIMS so that the record could be corrected, and that the location of the object will be correctly identified in future searches.
The second contention which had been resolved was Condition 14 in regard to the stream crossing and NRAR's requirements. NRAR had issued GTAs, so if the appeal were to be upheld those GTAs would be incorporated into conditions of consent.
[2]
The Council's expert evidence
A substantial part of Mr Doyle's submissions was intended to advance the proposition that the Council's experts were not independent and unbiased (Applicant's Outline of Submissions filed 19 July 2021 pars 6.1 to 6.23).
In making this argument the Applicant did not rule out Council officers being expert witnesses:
"6.9. We do not need to advance the proposition that simply because one is employed by a party one is barred from being an expert witness for that party. However, we suggest that the Court should insist that all experts who have been involved in the prior assessment of an application should declare: […]"
However, the Applicant did suggest:
"6.12. In the Applicant's submission, it is inappropriate and in breach of the obligations of the expert witness and the duty of the Council as a model litigant where the following are present:
6.12.1. The expert has been previously involved in deciding relevant matters and in analysing relevant information and issues likely to be in contention;
6.12.2. The expert has been involved in developing the position of the Council towards the issues which are still in controversy before the Court;
6.12.3. The expert has been involved in giving instructions to the Council's solicitors as to which contentions should be made and on what basis;
6.12.4. There has been no formal reflection and record of the decision as to the conflict of interest as would be expected in other areas of the Council's administration, contracting and other administrative duties;
6.12.5. There has been no reference of a potential conflict of interest to a senior officer in the Council who has been independent of the assessment of the application process; and
6.12.6. Where there has been no recognition in the expert's report of the substantial change in the expert's role when accepting the role of an expert witness."
Similar arguments had been advanced by the Applicant in an earlier matter - Doyle v Hornsby Shire Council [2015] NSWLEC 1576, an appeal against the deemed refusal by council of a modification application to amend an approved driveway where the gradient of the driveway if the application were approved would exceed the gradient in the Australian Standard (that had been adopted as the appropriate standard by council). The matter involved consideration of an issue of adequacy of plans, but most relevantly in the current context a challenge by Mr Doyle to the qualification of council's engineering surveyor and his ability to be an independent witness. The appeal was dismissed.
Mr Doyle appealed the Commissioner's decision, and the appeal was held before Moore J (Doyle v Hornsby Shire Council [2018] NSWLEC 45). Moore J dismissed the appeal and in regard to the involvement of Council officers as experts concluded at [60] to [69]:
"60 Mr Doyle also proposes that Mr Clare could not be regarded as an appropriate person to give expert evidence on behalf of the Council because he was an employee of the Council. Such a proposition is simply untenable.
61 The cases cited by Mr Doyle (Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238) and 253 Spit Road Pty Ltd v Mosman Municipal Council [2016] NSWLEC 1274) deal with circumstances where, directly or indirectly, the proposed witness might be perceived to have a conflict of interest in meeting the obligations for independence required by the Uniform Civil Procedure Rules 2005 (the UCPR) or the Expert Witness Code of Conduct.
62 Such conflicts can, potentially, arise in circumstances where a proposed witness could be perceived as having a direct or indirect pecuniary interest arising out of their employer's role in particular proceedings. In such circumstances, exclusion of such a potential witness may not be unreasonable, depending on the circumstances in which consideration of the potential for the employee to give expert evidence arises.
63 However, such a situation does not arise with respect to an employee of a council when the council's position in proceedings is consistent with the position adopted by the council employee in any internal advice (whether for more senior officers or for the council itself being immaterial) when that advice is proposed to be transmuted into a statement of expert evidence for the proceedings.
64 A contrary position arises when the position adopted by a council does not accord with earlier internal advice prepared by an employee who might, otherwise, be expected to give expert evidence. In such circumstances, it has been conventional for councils to engage the services of an external expert in the relevant discipline.
65 Although, in these proceedings, the Council initially proposed to rely on Mr Kennedy as an external consultant expert but subsequently determined to rely, solely, on Mr Clare, this position plays no role in assessing the fundamental principle of whether Mr Clare's employment by the Council acted as some disentitling factor in his giving of evidence on behalf of the Council. It cannot be relevant.
66 This is because neither Mr Clare or, more importantly, the Council could be regarded as having any pecuniary or other direct or indirect interest in the outcome of these proceedings (or, indeed, any other proceedings under the EP&A Act that did not deal with assets of the Council).
67 The Council, in proceedings such as these, is to be regarded as a responsible public authority; acting in the public interest; following its obligations under the Model Litigant Policy; and seeking to ensure that there is a proper assessment of the merits of a contested development proposal when those merits are tested against the various matters required by (the then numbered) s 79C of the EP&A Act.
68 This complaint about Mr Clare giving evidence on behalf of the Council, separate from the complaint about whether Mr Clare should have been regarded as an expert or not, is entirely without merit and is rejected.
69 This approach is consistent with the position that has been taken by the Court to the acceptance of qualified and/or experienced council officers being permitted to give expert evidence in areas relevant to their expertise gained by training, study or experience."
As pointed out in [69] of Doyle v Hornsby Shire Council [2018] NSWLEC 45, Council officers give evidence in many (but not all) planning appeals before the Court. Their expertise on particular technical issues may be the subject of cross-examination but the general principle that Council officers can give evidence is not questioned. The Court is well able to recognise and question any suggestions of advocacy for a particular party, be it from consultants appearing for applicants or for council officers appearing for respondents.
Although Mr Doyle (Outline of Submissions par 6.9) would not prevent Council officers from being expert witnesses he considered that the Council experts in the present case were 'Collingwood experts':
"6.7. In the submission of the Applicant, the Council's experts amount to "Collingwood experts", that is they take the position and characteristics of a Collingwood supporter who:
6.7.1. Considers himself an expert having spent so long barracking for the team;
6.7.2. Considers himself experienced because he has barracked for the team for many years; and
6.7.3. Is clear and definite and fixed in his opinion in respect of all matters relating to the team and position.
[…]
6.10. Schedule 7 of the UCPR describes the overriding obligation of the expert is to act "impartially".
6.11. The duty to the court requires the expert to bring to the issues in dispute a consideration which is impartial and unbiased and that he or she , will not bring to it a mind that is set in favour of one party .
6.12. In the Applicant's submission, it is inappropriate and in breach of the obligations of the expert witness and the duty of the Council as a model litigant where the following are present:
6.12.1. The expert has been previously involved in deciding relevant matters and in analysing relevant information and issues likely to be in contention;
6.12.2. The expert has been involved in developing the position of the Council towards the issues which are still in controversy before the Court;
6.12.3. The expert has been involved in giving instructions to the Council's solicitors as to which contentions should be made and on what basis;
6.12.4. There has been no formal reflection and record of the decision as to the conflict of interest as would be expected in other areas of the Council's administration, contracting and other administrative duties;
6.12.5. There has been no reference of a potential conflict of interest to a senior officer in the Council who has been independent of the assessment of the application process; and
6.12.6. Where there has been no recognition in the expert's report of the substantial change in the expert's role when accepting the role of an expert witness.
6.13. When the officer is working for the Council, he could reasonably adopt the position, to which the Council was perhaps entitled, that the Council should expect to be satisfied by an Applicant of the merits of the application in respect particular regulatory provisions.
6.14. The officer would demonstrate that the Council insists on being satisfied and requiring an Applicant to provide that satisfaction.
6.15. However, it is not appropriate for an expert witness to take that position. The expert witness has undertaken to assist the Court impartially and he has made a declaration that the expert has made all enquires that the expert deems desirable and appropriate and that no matters of significance have been withheld from the Court.
6.16. That declaration required the expert to investigate the matter in detail and, in many cases, more fully than he was acting as a Council employee This is also reflected in the Court's policy which encourages experts to consider alternatives including whether an amendment or a condition may be able to be agreed with the other expert.
[…]
6.20. In the Applicant's submission a Collingwood expert contaminates the process because it has such an expert operating in a joint expert's conference which is not visible to the Court or the parties and not subject to any review.
6.21. One may consider the position of an appropriately impartial Applicant's expert when faced with a council expert well experienced in the ways of the Court and well experienced in being an expert on many occasions. One might consider the position to be that "it's hard to "barrack" for Richmond or express "an objective view" of Collingwood's performance when one sits amongst the Collingwood cheer squad."
Mr Doyle specifically raised concerns with Ms Nagel during cross-examination, but did not do so with the other Council officers who presented evidence. Mr Seton did not raise the issue when questioning the Applicant's experts. Mr Doyle did not ask the Applicant's experts whether the Council officers were merely acting as advocates for Council, and indeed the considerable agreement between the parties' experts in joint conferencing suggests that this was not their view.
In assessing an application, the Court must focus on the application which is the subject of the appeal and not some other application or alternative (Council's closing submissions at par 12).
The application which is the subject of the appeal is not necessarily the same application as was originally the subject of the DA, rather it is the application as it stood at the end of the hearing. The application may have been amended prior to commencement of the hearing, it may have been amended during the hearing, and those amendments, provided they are accepted by all parties become the application to be assessed.
Mr Doyle in the Applicant's Submissions in Reply (filed 30 July 2021) refers to Doyle v Hornsby Shire Council [2020] NSWLEC 1155 which dealt with the same driveway, that was the modification application to modify the design of the driveway which had originally been approved. The matter was referred to a conciliation conference under s 34 of the LEC Act at which the parties reached an agreement. Mr Doyle notes that Mr Clare, the engineering surveyor in the earlier matters 'was nowhere to be seen' (Submission in Reply at par 3.13). The relevance of this observation is not clear and there could be many reasons why he did not participate. The parties apparently agreed to the gradient for the driveway that had been rejected in 2017. The 2020 judgment is for a s34 matter and as such does not go into great detail. I am unaware of what evidence was presented by which experts. Mr Doyle says that the issue had 'contributed substantially to the waste of the Court's time and the Council's and Applicant's time for three years for 2017 to 2020'. If the implication of these remarks is that the 2017 judgment and Moore J's verdict on appeal were 'wrong', then I would reject that interpretation, given that circumstances may have changed over the period. The 2020 judgment does not contain any discussion of the earlier judgments, or suggest that they had been wrongly decided (and I note that the 2018 judgment was not appealed). The judgment in 2020 reflects the agreement between the parties which had been reached in the s 34 conciliation process.
[3]
Contentions in dispute at end of hearing
The contentions at the end of the hearing that remained unresolved were:
1. Contention 1 - Building height
2. Contention 2 - Built form and design of the proposed development
3. Contention 3 - Impact on Environmentally Sensitive Land and Protected Areas
4. Contention 4 - Impact on biodiversity
5. Contention 5 - Impact on slope constraint land
6. Contention 6 - Insufficient information to enable a proper assessment of the stormwater impacts of the development
7. Contention 7 - Impact of proposed watercourse crossing
8. Contention 8 - Flood planning and overland flow impacts relating to the road and watercourse crossing
9. Contention 9 - Essential services - not satisfied that suitable vehicular access is available or that adequate arrangements have been made relating to such access
10. Contention 11 - Development is contrary to the objectives for land in Zone E4 Environmental Living
11. Contention 12 - Additional area to be cleared in public road to provide a suitable turning area for fire trucks
12. Contention 13 - Sydney Regional Environmental Plan (SREP) No 20 Hawkesbury-Nepean River
13. Contention 15 - Insufficient and inadequate information
14. Contention 16 - Public Interest and Precedent
A number of these contentions involve jurisdictional matters, about which I must be satisfied in order to have the power to grant consent.
If I find I do not have power to grant consent on any single one of the contentions, then I need not consider any of the other jurisdictional issues. However, should I be wrong in my conclusion, I will address all the jurisdictional issue contentions.
[4]
Contention 1 Building height
1. This contention differs from the others in that it involves a written request (the request) which had been made by the Applicant under cl 4.6 of BMLEP 2015 seeking to justify the contravention of the height standard.
Before addressing the request, I need to refer to the evidence of Mr Williams in his single expert report (Ex H).
In Ex H Mr Williams had suggested that any exceedance could be addressed by an appropriate condition. However, no condition would be appropriate in the case of an exceedance of a developmental standard. Mr Williams corrected his position:
"[WITNESS WILLIAMS:] A. I probably should take the opportunity to clarify the error in my expert report around the ability to condition away that non-compliance. It's evident to me and probably everyone else that that's an error and that 4.6 needs to be assessed as acceptable or not, based on all the tests relevant in clause 4.6 and I think in the rush in putting it together I've erred there, suggesting that that can be conditioned whereas that's clearly not the case."
(Tcpt, 18 June 2021, p 71(22-27))
A cl 4.6 request, if it is granted, permits a development standard to be exceeded. If the request is not granted, then the development standard cannot be altered by a condition. Rather, development consent cannot be granted.
Mr Williams muddied the waters again, in the exchange below:
"[DOYLE]: Q. And, therefore, in a control that's said to be 8, why is it that you say that the whole development should be rejected?
[WITNESS WILLIAMS:] A. I'm not sure that's what I was saying. I was saying that the 4.6 doesn't appear to argue it well and that it's not unnecessary or unreasonable to expect compliance, given the minor non-compliance and that given a simple design fix would result in a compliant outcome.
[DOYLE:] Q. And would you accept that the design fix, if it was there and had to be done, you can see the pergola structure that's up there near the initials DP, are we seeing that's the pergola structure and all one would need to do is to put a bit of a knee across and deduct the sharp point of the pergola. You'd accept that that would then comply?
[WITNESS WILLIAMS:] A. Yeah.
[DOYLE:] Q. So can I expect that this isn't a real issue in this development, that there are bigger and other issues which should concern the council, the applicant and the court?
[WITNESS WILLIAMS:] A. I couldn't agree more but I would only add to that that, you know, the planning system works through the imposition of development standards. 4.6 is available for use but what you're proposing on this plan is a non-compliance and you need to demonstrate that it's not - that it's unreasonable, that it's unnecessary, that there are environmental grounds, that it's in the public interest and I don't think any of those things have been demonstrated. So, therefore, it is technically a jurisdictional issue. In terms of whether it's a matter that we should waste any more time on, well, I completely concur. I think there's probably bigger fish to fry in regards to this application.
[DOYLE:] Q. Yes. But you would accept that orderly development of land in New South Wales will only work with the co-operation of the approving authority, being the local council?
SETON: I object to that question. It's got no relevance whatsoever to this particular matter, nor is it of any assistance?
DOYLE: I think it's relevant that the situation with this - is this contention which has bounced around before the Commissioner is principally a lack of the achievement of the aims of the Act. The Act is--
SETON: You still don't get it. It's a jurisdictional matter that you must - you must attend to this jurisdictional matter that you have not attended to. You don't understand the law. Look up the law and you'll understand it.
DOYLE: Yeah. I know but I don't need to be lectured by you and I'm entitled to ..(not transcribable)..
SETON: Well, you shouldn't be asking irrelevant questions. You're a lawyer. You ask relevant questions. That's what you're supposed to do.
DOYLE: You follow the event and don't put these nonsense contentions in. You should've checked it and you should've found that it was ridiculous.
SETON: It's a jurisdictional matter. I'm sorry. This is a jurisdictional matter that must be dealt with - the court must deal with it.
WITNESS: And Mr Doyle, just to defend our statement of facts and contentions, it was put together before you gave us the clause 4.6 request. So it would be remiss of us not to put in a contention saying that you were not addressing a jurisdictional matter. It's correct to put that in there."
(Tcpt, 18 June 2021, pp 21(33)-22(40))
If the exceedance of the height limit had been recognised by the Applicant earlier, the plans could have been amended by removal of 20cm, but this was not done. The plans before the Court showed the exceedance so if the cl 4.6 request is not accepted then the Court cannot grant consent. The contention is not 'nonsense' nor is it 'ridiculous'. To ignore the exceedance, as Mr Doyle wanted, would defeat the purpose of setting standards. If a 20cm exceedance could be allowed where would the line be drawn - would 50cm be acceptable?
However, exceedances can be allowed if the cl 4.6 request is accepted, so there is a need to examine the request. The cl 4.6 request was provided in a letter from Doyles attached to the Applicant's Submissions in Reply:
"[…] our request is as follows:
(a) That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
The development proposes a maximum height of 8.2m, 0.2m above the standard. The height breach that Council contends cannot be visibly seen by the naked eye. It is a breach that is minor in nature and does not have any environmental impact on the surrounding area or vegetation. Furthermore, the breach is so minor in nature that it does not create any privacy or amenity concerns to nearby residents. In this instance, compliance with the development standard is unnecessary as the breach results in no environmental impact on the development or the surrounding area.
(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
The land that is the subject of this development is zoned E2 Environmental Conservation and E4 Environmental Living.
The objectives of the E2 zone are to:
• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.
• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.
• To encourage land restoration works on disturbed bushland areas.
• To restrict the development of private land that would be inappropriate because of physical characteristics or high bush fire hazards, but only where less restricted development is permitted elsewhere on the land due to split zoning.
• To maintain biodiversity in the Blue Mountains.
The objectives of the E4 zone are to:
• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
• To ensure that residential development does not have an adverse effect on those values.
• To preserve and re-establish native bushland in those areas that exhibit a predominantly bushland character, where consistent with the protection of assets from bush fire.
• To ensure that the form and siting of buildings are appropriate for, and harmonise with, the bushland character of the locality.
The height breach does not have an impact on the surrounding vegetation or ecological values and the height breach does not have an adverse impact on the locality. One of the key objectives of the zones are to promote low impact development. A height breach of 0.2m in a single dwelling house does not result in a development that is inconsistent with the objectives of the zones.
As such, we maintain the position that whilst there is a minor breach from the development standard prescribed under the BLEP, it is so minor in nature that it will not adversely impact this development, the surrounding developments or area.
Additionally, the present design of the proposed dwelling is consistent with the design of the dwelling approved by Council for lot 6 Surrey Street and accordingly the present dwelling design represents an optimal design for the locality."
In order to approve a development which contravenes a development standard, the Court must be satisfied that a written request has adequately addressed cl 4.6(3) of BMLEP 2015:
(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.
Mr Doyle suggested that the design in the proposal is optimal - but my task does not include addressing optimality, rather I must ask whether for what is proposed, is it lawful.
Clause 4.6(3)(a) requires me to determine whether compliance is unreasonable or unnecessary. As already discussed, the test cannot be sidestepped by imposing a condition to require a lower height in circumstances when no application to amend the plan to reduce the height has been made. No evidence has been advanced to demonstrate that it would be unreasonable or unnecessary to require compliance. That this would be annoying to the Applicant does not make compliance unreasonable or unnecessary and Mr Williams (Ex H p 2) did not consider it unreasonable to require compliance.
What is required to be demonstrated in cl 4.6(3) has been analysed by Preston CJ in Initial Action Pty Limited v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [24]:
"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]."
The Applicant in its Outline of Submissions at pars 3.3-3.10 cites Mr Williams' suggestion that the issue was 'not a real issue'. This suggestion was subsequently withdrawn by Mr Williams. In the context of cll 4.3 and 4.6, the plans show that the height limit is exceeded. Therefore, there is an issue which must be resolved, and it is therefore 'real'.
I would agree with Mr Seton (Closing Submissions at par 20) that the Applicant's Submissions do not concentrate on the non-compliance but are more general and cannot be considered sufficient to address cl 4.6(2)(b) and as such I cannot be satisfied that there are sufficient environmental planning grounds to justify contravening the height limit. I must therefore uphold Contention 1 and, as a consequence, I do not have power to consent to the application and must therefore dismiss the appeal.
However, should I be wrong, I will consider the other jurisdictional matters.
[5]
The relevance of the approval of development on Lot 6
Before I consider the other jurisdictional matters, I note that Mr Doyle draws attention to the approval by Council of development on Lot 6. I would stress that every development application must be considered on its own merit and approval for development on Lot 6 does not provide a precedent which is necessarily to be followed on Lot 7. No details of the development on Lot 6 were provided, but I would observe that the lot is situated on the western fall of Surrey Street, to which there is no direct road connection from Lot 7, and although Lot 6 has steep topography, it is not as steep as Lot 7 so that the context of the 2 lots is different.
In relation to other jurisdictional matters, a common feature is the absence of sufficient information about a range of issues. This affects both those contentions where the consent authority cannot grant consent and those where I am required to consider certain specified matters, where the data is deficient so that there is not sufficient evidence to consider the issues, most of the jurisdictional issues in this matter arise in Pt 6 of the BMLEP 2015 - the additional local provisions.
[6]
Contention 3 - Impact on environmentally sensitive land and protected areas
Clause 6.1 of the BMLEP 2015 provides that I cannot grant development consent for development that may have an adverse impact on the environment unless I am satisfied that:
6.1 Impact on environmentally sensitive land
(1) The objective of this clause is to protect environmentally sensitive land by -
(a) conserving significant native vegetation communities and protecting the ecological processes necessary for the continued existence of those communities, and
(b) protecting watercourses and the riparian buffers necessary to maintain or enhance the hydrological function of those watercourses, and
(c) restricting development on steeply sloping land and protecting geological features such as rock outcrops and escarpments.
(2) Impact of development on environmentally sensitive land Development consent must not be granted for development that may have an adverse impact on environmentally sensitive land unless the consent authority is satisfied that -
(a) the natural, scenic, scientific and historical values of the "City within a World Heritage National Park" that are relevant to the development will be maintained, and
(b) the development will be managed to protect the natural environment and maintain the ecological integrity and environmental significance of the Blue Mountains, and
(c) the water quality, watercourses, groundwater quality, riparian habitats and wetlands in the Blue Mountains, Sydney's drinking water catchment and the Hawkesbury-Nepean River catchment will be preserved and, if possible, enhanced, and
(d) the development is appropriate considering the extent and capacity of the local infrastructure, and
(e) if the development will be located on bush fire prone land, the exposure to bush fire hazard will be limited and any bush fire protection measures employed to protect human life, property and other assets are responsive to the environmental values of the land.
(3) Development near Blue Mountains National Park Development consent must not be granted for development on land that is adjacent to, directly opposite or separated only by a local road from land in the Blue Mountains National Park unless the consent authority -
(a) has considered the impact of the proposed development on the heritage significance and scenic attributes of the National Park, and
(b) is satisfied that the development incorporates effective measures to avoid, minimise or mitigate any adverse environmental impact on the land in the National Park.
(4) Impact of subdivision on environmentally sensitive land Development consent must not be granted for the subdivision of land to create additional lots unless the consent authority is satisfied that the development, including any clearing required for an asset protection zone, will have no adverse environmental impact on any environmentally sensitive land.
(5) Development on environmentally sensitive land in Zone E3 or Zone E4 Development consent must not be granted for development (other than development for the purpose of public utility services) on land within a lot created under this Plan being land in Zone C3 Environmental Management or Zone C4 Environmental Living that contains environmentally sensitive land unless the consent authority is satisfied that the proposed development, including any clearing required for an asset protection zone, would be designed, sited and managed to avoid any adverse environmental impact on the environmentally sensitive land.
(6) Other development Development consent must not be granted for development (other than development referred to in subclauses (4) and (5)) unless the consent authority is satisfied that the development, including any clearing required for an asset protection zone, is to be designed, sited and managed to avoid any adverse environmental impact on any of the following -
(a) significant vegetation communities,
(b) rare species of flora,
(c) the hydrological aspect of the locality, including groundwater,
(d) land identified as "Riparian Land" on the Riparian Lands and Watercourses Map,
(e) watercourses or wetlands,
(f) significant natural features, including rock outcrops, rock ledges and cliffs.
(7) Despite subclause (6), development consent may be granted for development if the consent authority is satisfied that -
(a) if an adverse environmental impact cannot be avoided, the development is designed, sited and will be managed to minimise that impact to the greatest extent possible, and
(b) the development incorporates effective measures to remedy, minimise or mitigate any other adverse environmental impacts, and
(c) any existing disturbed areas on the site will be restored.
(8) In determining whether an adverse environmental impact cannot be avoided, the consent authority must -
(a) have regard to the purposes for which the land is intended to be used with reference to the objectives of the relevant zone of the land, and
(b) be satisfied that no practicable alternative is available in relation to the design, type and site coverage of the proposed development (including any measures required to protect life and property from the threat of bush fire) and the suitability of the physical characteristics of the land for the proposed development.
This is an example of a contention where lack of information about a number of issues prevents me, as consent authority, from knowing whether there will be impacts on particular features, and if so whether these impacts would be considered to be significant.
It is possible that if information were available there could be satisfaction in relation to both matters, but in this judgment, I must make my assessment based on the information available to meet at the end of the hearing.
The ecological experts agreed in their Joint Report (Ex D) that quantifying ecological impacts was not possible without further information on the footprint of the proposed works, and cut and fill required. One requirement was that an arborist's report was required. Without an arborist's report the area required to develop the access road could not be defined. The Applicant depicts the access road as essentially a straight line but the ecologists both required that road construction avoid the removal of mature trees. Without knowing where mature and other important trees are located it cannot be determined whether an access road which meets other design requirements could be created without removing some mature trees. The ecology experts in Ex D p 3 considered that the access road construction should avoid all mature trees.
The ecology experts agreed that the available information did not permit the achievement of cll 6.1, 6.6, 6.7 and 6.8.
The engineering experts, Ms Hawken and Dr Shrestha were not examined but in their Joint Report (Ex F) they agreed the construction of a ford would have had excessive impact on the flow regime. Although the experts discussed, properly, alternatives they were not adopted and so were not part of the application under consideration. Mr Doyle in par 3.29 of his Outline of Submissions states that the Joint Report of the stormwater experts wrongly asserted that the ford is not feasible.
However, his argument does not cite any expert evidence in support, and it is an assertion not adopted by the established experts of both parties.
[7]
Contention 4 - Impact on biodiversity
Contention 4 is the impact on biodiversity and failure to obtain a BDAR.
The Applicant considers that a BDAR is not required.
However, s 7.7 of the BC Act applies to the application and provides:
…
(2) If the proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report.
Section 7.2 of the BC Act provides a development is likely to significantly affect threatened species if (s 7.2(1)(b)):
…
(b) the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values…
Section 6.3 provides the assessment of impacts as being:
(a) the impacts of the clearing of native vegetation and the loss of habitat,
(b) the impacts of action that are prescribed by the regulations.
The proposed development involves the clearing of native vegetation so that the BOS applies to the impacts of the proposed development on biodiversity values.
Clause 7.2(3) of the BC Regulation 2017 provides that:
(3) In the application of the Table to this clause -
(a) if the proposed development does not comprise only the clearing of native vegetation - the area of clearing is the total area of proposed clearing irrespective of the number of lots concerned or the ownership of those lots, and
(b) if the proposed development comprises only the clearing of native vegetation - the area of clearing is the total area of proposed clearing -
(i) over the lots in the same ownership (unless subparagraph (ii) applies), or
(ii) over the lots that are worked or operated as a single property (whether or not they are in the same ownership), and
(c) if the land on which the proposed development is to be carried out comprises different areas of land with different minimum lot sizes - the minimum lot size is the smaller or smallest of those minimum lot sizes, and
(d) if the proposed development comprises or involves the clearing of more than one patch of native vegetation - the area of clearing is the total cumulative area cleared.
The area of clearing is the total area of proposed clearing irrespective of the number of lots concerned or the ownership of those lots. The minimum lot size for the land which the proposed development is to be carried out is 2000m2 for the Table to cl 7.2, if the area of cleared land is more than 0.25 hectares the BOS threshold is exceeded.
Exhibit K prepared by Ms Nagel indicates that the clearing would exceed 0.25 hectares.
The Applicant's Outline of Submissions argues that a BDAR is not required but does not provide an alternative estimate of the area, merely stating in par 3.33 that only a minor area of land is to be developed.
In the Applicant's Submissions in Reply, the Applicant rejects that a BDAR is required and considers that the area to be cleared has been incorrectly calculated. The Applicant does not consider that the area of the access road, which it does not own, should be incorporated in the calculation. However, I am in agreement with the Council's interpretation of the BC Act. The unmade road currently supports native vegetation and creation of a made road will require clearing of a non-determined area of vegetation as a consequence of the development.
I accept that there is uncertainty as to the actual area to be cleared, particularly as the road route is not fully determined, but I am comfortable that it would exceed 0.25 hectares.
Accordingly, I cannot approve the DA as it is not accompanied by a BDAR.
[8]
Contention 5 - Impact on slope constraint land
Clause 6.4(3) of the BMLEP 2015 provides that development consent must not be granted for development on land to which the clause applies, unless the consent authority is satisfied that:
(a) all existing native vegetation situated outside any part of the land required for the development will be retained and appropriate measures will be incorporated to facilitate the maintenance of such vegetation, and
(b) the development will incorporate measures to regenerate any native vegetation that has been cleared from land to which this clause applies that does not form part of the site of any existing or proposed development, and
(c) the development will not have any adverse impact on the rate, volume or quality of water running off the land, and
(d) a geotechnical report prepared by a suitably qualified person demonstrates that the soil characteristics and structural elements of the land are suitable for the proposed development, and
(e) the development cannot practicably be located on land other than the land to which this clause applies.
There is no doubt that a large part of Lot 7 is slope constraint land.
Ms Hawken and Mr Mukherjee in their Joint Report (Ex E p 4) agreed the required report has not been submitted. The Applicant in its Outline of Submissions argues the design reflects the slope of the land and minimises excavation to the minimum extent possible. Tree cover will be maintained as far as practicable in order to protect slopes.
In Submission in Reply, Mr Doyle denies that further assessment of stability is required on the basis that the development of Lot 6 was approved without need for further assessment, but he ignores the fact that his own expert had agreed that the assessment is required.
In the absence of a report which demonstrates structural elements of the land are suitable for the proposed development, and given the uncertainties the extent of works required for the roadway and driveway, I cannot be satisfied of the matter in cl 6.4(3)(d) and therefore I have no power to grant consent to the DA.
[9]
Contention 7 - Watercourse crossing
Clause 6.8 applies to land identified as "Protected Area - Watercourses" on the Riparian Land and Watercourses Map; part of the land on which the road is proposed to be constructed is identified on the map.
Clause 6.8(4) requires that I am 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 Applicant in its Outline of Submissions pars 3.41-3.45 argues that the stormwater impact is minimal, and that the absorption trenches adjacent to each side of the road will provide efficient and effective distribution of the run-off. The engineering experts in their Joint Report (Ex E p 4) agree that the construction of a ford as proposed in the application is not feasible. Given the agreement of the experts, I cannot be satisfied that the proposed development will be designed to avoid, minimise or mitigate any significant adverse environmental impact, and therefore I have no power to grant consent to the DA.
[10]
Contention 8 - Flood planning
Clause 6.10(3) of BMLEP 2015 provides that development consent could not be granted unless I am satisfied that:
(a) is compatible with the flood hazard of the land, and
(b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and
(c) incorporates appropriate measures to manage risk to life from flood, and
(d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and
(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.
Clause 6.10 applies to land below the flood planning level which is the level of a 1-in-100 Average Recurrence Interval (ARI) plus 0.5m freeboard. Part of Lot 7 and part of the proposed roadway is land which is below the flood planning level.
The engineering experts in Ex F p 4 agree that the construction of a ford is not feasible, and also that it is not possible to compare the flood levels to the road design plans because the data are not compatible. The Applicant in the Outline of Submissions considers that the proposed ford is the optimal solution and disagrees with the concept of a piered bridge on the ground that Council has not installed such a crossing elsewhere.
It also points to the curriculum vitae of Dr Shrestha showing that he is an expert on erosion caused by piered bridges. However, he fails to mention that in Ex F the experts had agreed that a piered bridge was their preferred design.
[11]
Contention 9 - Essential services
Clause 6.23(1) of BMLEP 2015 prevents the granting of development consent unless the consent authority is satisfied that essential services are available or that the adequate arrangements have been made to make them available when required. The essential services include suitable vehicular access. The Applicant argues that essential services are all available to Lot 6, and so accordingly there is no doubt that they are available on Lot 7.
This ignores that there will not be a through access way between Lots 6 and 7.
The Council says because the road design did not adopt the standard crossfall for public roads, the uncertainty of many aspects of the design because of the lack of an arborist's survey and the lack of compatibility of current survey data mean that the impacts of provision of the road cannot be assessed.
Accordingly, I could not reach the necessary level of satisfaction so that development consent cannot be granted.
Even if I am incorrect in my findings on some of the requirements demanded by clauses in Pt 6, a correct finding on any one would prevent the granting of consent.
Accordingly, I am not required to address merit considerations.
The Council in their Closing Submissions considers that if I were to consider merit contentions I would find ample grounds for not approving the application.
Rather than going through the merit considerations in detail I will refer to Contention 15 - insufficient and inadequate information.
There are many instances where the experts agree that more information is required in order to make an assessment. This has been the case ever since the application was first submitted to Council as shown in the referral responses that appear in Ex C. The Applicant had ample opportunities to respond to requests for information. Although some of the requests were met, many were not. If the information gaps which have been identified by experts of both parties had been filled, the assessment process could have progressed. Provision of information would not necessarily led to approval, that is dependent upon what the information reveals, but the process of evaluation of the application could have concentrated on a much more limited range differences between the parties.
Almost at the end of the hearing, Mr Doyle commented:
"DOYLE: Yes. There did seem to me, and I'm inviting any comment on it, that there is a real issue on the inspection yesterday in agreeing the location in which everybody was standing and I think that has some implications as to the ability of anybody to really consider how all these factors go together. So that's an aspect which I think will also need addressing."
(Tcpt, 18 June 2021, p 83(19-23))
The issue that occurred on the site inspection was the inability of any of those present, including Mr Doyle, to specify the exact location of the boundaries of Lot 7, the footprint of the proposed dwelling and carport, and the boundaries of the road reserve. Given an earlier request from the Council for the marking of the locations, and the general expectation that where there are no existing markers such as the edge of a made road or a boundary with a neighbouring property, and knowing that the boundary positions would be critical to understanding the information and reports available, it would be reasonable to have assumed that boundaries would be marked by surveyors' pegs or by tape.
To raise as a concern the ability of anybody to really consider 'how all these factors could go together' so late in the proceedings, after the evidence had been presented, was unhelpful and unless the necessary surveys were completed and further site inspection by the parties were to occur, could not be acted upon. The Applicant made decisions on how his case was to be run, and if the outcome is that the information provided was not sufficient for the consent authority to have certainty as to the impacts of the proposal so that the consent authority has no jurisdiction to determine the matter then so be it.
Additional major sources of uncertainty were due to the absence of an arborist's report on trees in the proposed driveway and the road reserve, and the very limited data available on the physical environment and biota of the watercourse.
An arborist's report is required to locate and identify significant trees, including those with hollows. The experts of both parties were agreed that significant trees should be retained, but whether this is a realistic outcome would require consideration by the engineers - could a road with the appropriate grades, cross fall and radius of curves be designed and built to preserve all the significant trees identified by the arborist and the ecologists? If not, could some necessarily be sacrificed, or would the loss of trees be such as to constitute grounds for refusing consent. There were no data presented on water quality in the watercourse, and there was uncertainty as to whether any relevant data existed. There were no data on the biota of the watercourse. Without knowledge of existing water quality and biota, it is not possible that there could be any certainty about the consequences of the proposed road crossing of the watercourse.
The Applicant did not discuss the reports included in its own exhibits, although Mr Doyle did promote issues, such as the restoration of Aboriginal burning regimes and the acceptability of greater crossfall and gradients of the access road without any supporting evidence, and apparently without discussion with his own experts.
What was referred to as the Applicant's bundle (Ex 1) was in the form of Ms O'Connell's affidavit, to which a number of expert reports were attached. I asked Mr Doyle about the bundle:
"COMMISSIONER: You don't want to say anything in detail about anything that's in your bundle?
DOYLE: We commend the bundle to you, Commissioner, and we'll take you to it in detail, if it's necessary, later. The principal components of it are the individual expert reports that were prepared by our experts and we say that they represent a proper analysis of the situations that are relevant. We had some criticism to which we will elaborate this morning in the council's experts not really responding in the appropriate way. So we don't need to take you in detail to it. We've commended if you read that to understand or consider our further submissions but we're not seeking to take you through it in detail this morning."
(Tcpt, 18 June 2021, pp 8(44)-9(5))
Detailed reports of the Applicant's experts also appear in the Class 1 Application and related documents, tendered, somewhat belatedly, as Ex L. Included amongst the report saw a Flora and Fauna Constraints Assessment provided by Narla Environmental (Ex L folios 74-117), and this provided the background built upon by Mr James in Ex 1 folio 177.
In Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 641, Preston CJ of the LEC stressed at [2] that:
"2 […] an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed."
The burden on the Applicant includes 'providing information and arguments so that the relevant environmental impacts can be satisfactorily addressed'.
In this matter it is clear, and agreed in the Joint Reports of the experts that the information gaps in the evidence mean that the Applicant has not provided the information and arguments required.
[12]
Can the information gaps be addressed by conditions?
The Council's position is that the appeal must be dismissed. The Applicant considers that the appeal should be upheld, and that development consent should be granted with appropriate conditions.
The Council, despite its preferred outcome had, as is required, produced on a 'without prejudice' basis, draft conditions of consent to be applied in the event that the Court were of a mind to uphold the appeal (Ex J).
The proposed draft conditions are in two parts:
1. Part 1 (Draft Deferred Commencement Matters) comprising 10 conditions, and
2. Part 2 (Draft Operational Conditions) comprising 54 conditions.
The Deferred Commencement Consent would not operate until the Applicant satisfies the Council of the matters in Part 1. The Applicant must produce evidence to the Council sufficient to enable it to be satisfied, within 12 months from the date of the deferred consent is granted.
The draft deferred consent conditions address the need to provide reports and plans to address the information deficit clearly identified in the Joint Reports.
Condition 1 requires a flora and fauna assessment to be prepared, complying with a set of criteria.
The report is to include information to confirm that the BOS does not apply or provide a BDAR. To confirm that the BOS does not apply will require calculation of the area affected by the proposed development in order to determine whether the BOS threshold would be exceeded. However, the note to this condition points out that the EPA Act and the BC Act require submission of the documents requested by the draft conditions with the DA so the biodiversity impacts can be considered in determining whether consent should be granted. The information that would be required for the BDAR needed to be provided as it would inform decisions of whether development consent conditions were appropriate. If the BOS threshold were exceeded the BDAR would have to have been submitted with the application.
Draft Conditions 2 - 8 require certain data to be collected in order for the consent authority to make the required assessment of the DA.
Draft Condition 7 requires that road design is responsive to the arborist's report. The design of the roadway is expressly not to incorporate driveways for Lots 8 and 9. The design is only for provision of access to Lot 7.
Draft Condition 9 requires that a letter is received from Sydney Water in regard to the availability of provision of a reticulated water supply, the route of any proposed extensions to mains or piped services, and a letter or advice that Lot 7 can be serviced by, and how this can be achieved.
If these services can be provided, then how much alteration of the native vegetation communities would be required? Assessment of the impacts would require input from relevant Council departments and experts.
Draft Condition 10 is the only Part 1 condition that is straightforward and is unlikely to open up other issues. It requires amended plans of a revised building design that limits the length of the building in the unbroken roofline to 15m length.
Part 2 - Draft Operational Conditions contains conditions which are common to the majority of DA approvals, but also a number which reflect the location of the site and of the specific nature of the proposed development. Satisfying some of these provisions may impose onerous requirements on the Applicant and may constrain the nature of development that could feasibly be carried out.
It is essential that the conditions provide certainty as to what would constitute the approved development. A concern with deferred consent conditions is that when the consent is issued there is the potential for uncertainty. The studies required by some of the commencement conditions may create a circumstance where further changes to the application are required.
The uncertainty created by the current information gaps may be further compounded if the deferred commencement conditions are applied. While there are circumstances where deferred comment conditions are desirable, I do not think that the current application provides those circumstances, and I would not endorse the Council's draft deferred commencement conditions.
[13]
Orders
Accordingly, the Court orders:
1. The appeal is dismissed.
2. Development application no. X/391/2020 for the erection of a single dwelling house and associated carport; installation of a 20,000 litre rainwater tank; construction of a driveway: construction of a vehicular access road on the unformed and unconstructed public road, including a watercourse crossing; clearing of trees and other vegetation and earthworks to facilitate the development of Lot 7 and the public road at 11-17 Surrey Street, Bullaburra, NSW 2784 is determined by refusal of consent.
3. The exhibits are retained.
……………………
P Adam
Acting Commissioner of the Court
[14]
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: 19 June 2023
Parties
Applicant/Plaintiff:
Redbank United Pty Ltd
Respondent/Defendant:
Blue Mountains City Council
Legislation Cited (2)
Environmental Protection and Biodiversity Conservation Act 1979(Cth)
The land use zones within the Blue Mountains LGA are listed in cl 2.1 of BMLEP 2015. At the time of the hearing the subject site was within the Environment Protection Zones - E2 Environmental Conservation and E4 Environmental Living. The road reserve and the part of Lot 7 where construction of the dwelling was proposed were within zone E4 Environmental Living. The part of Lot 7 not within zone E4 was within zone E2 Environmental Conservation. Subsequent to the hearing the zones have been renamed to Zone C2 Environmental Conservation and Zone C4 Environmental Living, but with no changes to the objectives of the zones or the Land Use Table.
Zone C2 Environmental Conservation
1 Objectives of zone
• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.
• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.
• To encourage land restoration works on disturbed bushland areas.
• To restrict the development of private land that would be inappropriate because of physical characteristics or high bush fire hazards, but only where less restricted development is permitted elsewhere on the land due to split zoning.
• To maintain biodiversity in the Blue Mountains.
2 Permitted without consent
Environmental protection works; Home occupations
3 Permitted with consent
Dwelling houses; Environmental facilities; Flood mitigation works; Oyster aquaculture; Roads
Note -
See clause 6.25 for development standards applying to dwelling houses in Zone E2 Environmental Conservation.
4 Prohibited
Business premises; Hotel or motel accommodation; Industries; Local distribution premises; Multi dwelling housing; Pond-based aquaculture; Recreation facilities (major); Residential flat buildings; Restricted premises; Retail premises; Seniors housing; Service stations; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 3
Zone C4 Environmental Living
1 Objectives of zone
• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
• To ensure that residential development does not have an adverse effect on those values.
• To preserve and re-establish native bushland in those areas that exhibit a predominantly bushland character, where consistent with the protection of assets from bush fire.
• To ensure that the form and siting of buildings are appropriate for, and harmonise with, the bushland character of the locality.
2 Permitted without consent
Environmental protection works; Home businesses; Home occupations
3 Permitted with consent
Bed and breakfast accommodation; Bee keeping; Building identification signs; Business identification signs; Dwelling houses; Eco-tourist facilities; Emergency services facilities; Environmental facilities; Flood mitigation works; Home-based child care; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Roads; Secondary dwellings; Tank-based aquaculture; Water storage facilities
4 Prohibited
Industries; Local distribution premises; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3
The works proposed within the DA are permissible with consent.
The objects of the zones read with the aims of BMLEP 2015 (see [40]) give weight to the importance that Council lays on the protection of the environment and biodiversity.
Mr Seton drew attention to subcll 2.3(2) and (4) of BMLEP 2015:
(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
(4) This clause is subject to the other provisions of this Plan
and argued that permissibility of a particular form of development within a zone did not mean that any application for that form of development would gain automatic approval:
"[SETON:] […] So, notwithstanding that a development may well be identified as being permissible with consent in a particular zone, that permissibility is subject to the other provisions of this plan […]".
(Tcpt, 17 June 2021, p 13(33-35))
It has long been accepted that regardless of permissibility, whether a consent authority grants approval to a development application is dependent on consideration of all aspects of what is proposed in the application.
In discussion about the weight to be applied to particular aspects of a proposal in the light of the zoning which has been applied to a site, the words of McClellan CJ of the LEC (as he then was) in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 (BGP Properties) are frequently cited:
"Significance of the zonings
115 The context in which the issues in this case must be resolved includes the history of the use of the land and the contribution which it now makes to the existing natural environment. Although zoned industrial, that zoning was imposed at a time when the community's understanding of the significance of some elements of the natural environment was not as mature as it now is. Consideration of matters of inter-generational equity and the conservation of both biological diversity and the ecological integrity of land were not such significant elements of environmental decision-making as they are today.
116 Notwithstanding the fact that the ecological integrity of the site may be threatened if the major road reservation were utilised for its purpose, I am satisfied that this is not a significant matter in this case. The reservation was also imposed at a time when the ecological significance of the area was unlikely to have been given any, or at least any mature, consideration. It would be inappropriate to make a decision in the present case upon the assumption that construction of the proposed road is inevitable.
117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.
119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project."
(at [115]-[119])
In the current matter, both parties in written submissions drew attention to this passage, although with emphasis on different points.
The BMLEP 2015 is relatively recent, and was written well after the recognition of the importance of biodiversity conservation, as is shown by the importance accorded to the natural environment and biodiversity by the draftsperson. It is not an LEP which would fall in the category discussed in [119] of BGP Properties.
I would interpret the Applicant's submissions as giving considerable weight to the fact that what is proposed is permissible (at [117] and the first part of [118] of BGP Properties), whereas the Council draws attention to the caveat (in the second part of [118] of BGP Properties) - the environmental impacts of the proposal must be acceptable. The zoning is important - an application for a development which is not permissible in the zone will fall at the first hurdle, but to reach the finishing line the Applicant will have to substantiate its case that the environmental impacts are acceptable.
The Council sought advice from RFS pursuant to s 4.14 EPA Act. The RFS response is included in Ex C behind Tab 8. The RFS advised (Ex C Tab 8 folio 23):
"That from the start of building works, and in perpetuity to ensure ongoing protection from the impact of bush fires, the property around the building must be maintained as an inner protection area (IPA) in accordance with the requirements of Appendix 4 of Planning for Bush Fire Protection 2019".
These requirements are aimed at reducing and maintaining at a low level the fuel load in the inner protection area (IPA), through measures including reducing tree canopy to less than 15% cover, with tree canopies separated by 2-5m, shrubs not to form more than 10% ground cover, and grass should be kept mowed (as a guide to be kept to no more than 100mm height).
In consequence the vegetation in the IPA will have a very different structure from that currently present which is illustrated in the photographs at [13].
The location of the proposed residence and of the IPA are shown in the image below at Figure 8:
Figure 8 from Ex C, Tab 10, folio 31
On the site inspection it was not possible to identify with certainty the position of the property. The northern boundary of the IPA is coincident with the property boundary, so assessment of the impact of the proposed development, including the impacts resulting from clearing to create the IPA, requires that the area which will be subject to the IPA can be delineated precisely so that the current vegetation within the IPA can be determined. At the time of the site inspection, given the lack of marking of any sort of the boundary, there could be no certainty as to what trees would be removed. The footprint of the proposed dwelling on Lot 7 is the black rectangle surrounded within the red rectangle by the IPA.
The RFS provided General Terms of Approval (GTAs) to be incorporated into conditions of consent were the Council to be of a mind to grant consent. As the Court is, for the purposes of the hearing, standing in the shoes of Council then were the Court to be of a mind to grant approval the same GTAs would need to be included in the conditions of consent. The GTAs are extensive and cover a range of issues additional to the specification of the IPA.
The Applicant identified the proposal as being integrated development under the provisions of the Water Management Act 2000, so that referral to the Natural Resources Access Regulator (NRAR) was required. Correspondence between the Council and NRAR is in Ex C Tabs 11, 12 and 13 which document exchanges aimed at clarifying the details of what was proposed. On 24 December 2020 NRAR sought additional information on the development proposal, and requested that the Council "stop the clock" in the assessment process until information was provided (Ex C Tab 17). On 4 June 2021 NRAR issued GTAs which Council would be required to include within conditions of consent were the DA to be granted approval (Ex C Tab 18).
The GTAs do not in themselves constitute an approval from NRAR
"SETON: Commissioner, if I can then go to tab 18. You'll find there a latter from the Natural Resources Access Regulator dated 4 June 2021. If you go to the third paragraph it says:
"If the proposed development is approved by council, NRA requests these GTA to be included in their entirety in council's development consent."
And then there's some GTAs that are attached - general terms of approval attached at folio 56 that set out various conditions that NRA would want to have imposed upon any consent that might be granted for the development as proposed."
(Tcpt, 17 June 2021 p 11(14-27))
The various internal referral responses included in Ex C Vol 1, indicate that Council officers had a number of concerns with the information (or lack of information) provided in the DA.
Ms Hawken raised a number of concerns from an engineering perspective (Ex C Tab 9 folios 27-29). The concerns related to the proposed 'access road':
"SETON: I'm sorry, Commissioner?
COMMISSIONER: I interrupted you.
SETON: If I continue then, Commissioner, I was going to the next tab, tab 9. You'll see there a document entitled Referrals Response dated 29 July 2020. It's from Kathy Hawken who is one of the experts who has participated in a joint report process in these proceedings. Down the bottom of that page, you'll see comments made in relation to vehicle access and under that heading:
"The extension of [Surrey] Street will have to be a private driveway and it's maintenance will be the responsibility of the property owners. Positive covenants will be imposed, however, it will be over a water course and most of the documentation has not taken this into account".
And then over the page, folio 28, there's a heading Outstanding Information Required and there's a series of circles or circle points that identified in terms of the information that is required. I won't go to those now because they're repeated in correspondence that is subsequently provided to the applicant.
COMMISSIONER: Just going back to the previous page and the extension, which is the extension of [Surrey] Street?
SETON: That's the work that is proposed or shown in the road plans that extends from what I will call the east through to the subject site. So where we walked initially this morning.
COMMISSIONER: I thought that was still council road reserve.
SETON: That is the extension of [Surrey] Street."
(Tcpt, 17 June 2021 p 7(1-32))
Ms Hawken at Ex 3 Tab 9 folios 28-29 identified a list of matters for which further information was required; these included details of the proposed water crossing and its impacts, overland flow, construction standard of the road and its suitability for passage of a Category 1 (23 tonne) RFS fire appliance.
The Surrey Street road reserve connects Sussex Street in the east to Anderson Avenue in the west. Access to Lot 7 from Anderson Avenue was not considered to be feasible by Council officers due to the steepness of the topography (Ex C Tab 10 folio 30).
The Council wrote to the Applicant on 4 December 2020 making requests for further details about many aspects of the proposal (Ex C Tab 16). Included among the items were:
"the proposed dwelling and access road layout is requested to be located on site by a registered surveyor and pegged. The survey peg locations are to be labelled and identified on a survey plan showing relevant environmental features".
If these pegs had been in place at the time of the site inspection, and their location identified on a survey plan, the site inspection could have been more useful and informative. Other items in the letter of 4 December 2020 required information on flora and fauna assessment and, also the likely impacts of the development on flora and fauna. Item 10 of the letter reflects the Council officer's assessment of the total area of clearing that would be required and indicated that Council considered the amount of clearing exceeded the Biodiversity Offset Scheme (BOS) threshold so that a Biodiversity Development Assessment Report (BDAR) was required. The BDAR should be prepared using the Biodiversity Assessment Method (BAM) in accordance with the Biodiversity Conservation Act 2016 (BC Act) (Pt 6) and the Biodiversity Conservation Regulation 2017 (BCA Regulation) (Pt 6). The BDAR is to be produced by an accredited person (BC Act s 6.10). The Council requested an arboricultural survey report and an arboricultural impact assessment as specified in the BMDCP Part I I2.1.6, pp 783-784 prepared by a consulting arborist (AQF level 5).