RVA Australia Pty Ltd v Sutherland Shire Council

RVA Australia Pty Ltd v Sutherland Shire Council - [2017] NSWLEC 1161 - NSWLEC 2017 case summary — Zoe

[4]

The site, its context and the proposal

The site is 60-70 Bournemouth Street, Bundeena (Lot 3 in DP213924). Figure 1 Site Plan
The site area is approximately 5.633 hectares (ha) and is almost trapezoid in shape, with a southern boundary adjoining Sussex Street (unformed), a western boundary adjoining Bournemouth Street (unformed) and a north-eastern boundary shared with the rear boundaries of the properties on the south-western side of Beachcomber Avenue. Access to the site, across the southern boundary, is over an existing bitumen track in the Royal National Park.
The terrain of the site is varied, with a relatively level area in the south-western portion of the site. The majority of the site slopes steeply down to the Spring Gully creek line, approximately adjacent to the north-eastern boundary and within the site. A stream flows towards the north, within the western half of the site (exhibit A, P13). The site is well vegetated with native tree and shrub plantings, consisting of four vegetation communities, of which the Coastal Sand Apple-Bloodwood Forest covers approximately 2/3 of the site. There are two EECs identified on the site (pursuant to the Threatened Species Conservation Act 1995 Schedule 1 Endangered species, populations and ecological communities, Part 3 Endangered ecological communities), Bangalay Sand Forest and Freshwater Wetlands, located in the north-western portion of the site (exhibit A, P11).
The access proposal is to construct a road 6.5m wide across Sussex Street (unformed), to access the site from the existing bitumen track in the Royal National Park. Land adjoining Sussex Street to the east, south and west is part of the Royal National Park, in the ownership of the Minister Administering the National Parks and Wildlife Act, 1974. The area immediately to the south-west of the access proposal is identified as the Night Soil Depot, a cleared grass and bitumen open space, recently transferred from the Council to the NSW National Parks and Wildlife Service (NPWS).
The existing bitumen track in the Royal National Park is accessed from the south-eastern end of Beachcomber Avenue, Bundeena, which is approximately 440m from the site. Although not the subject of either proposal, the existing bitumen track would need to be widened by approximately 1m to 6.5m wide. The approval of the road works to the existing track would be granted pursuant to Part 5 of the EPA Act. The parties agreed that any potential environmental impacts as a result of works required to widen the track are a relevant consideration in these appeals.
The proposal is located adjacent to the southern boundary of the site. A two storey building (the caretaker's accommodation and refuge building) is located at the eastern end of the camp, opposite the access into the site; consisting of the caretaker's accommodation on the eastern side of both levels, the administration accommodation on the western side of the upper level and a fire safety refuge on the ground level. The building is rectangular, approximately 18.73m x 9.63m, slab on ground with a low pitched skillion roof.
There are 6 guest tents, in two rows north and south, with tents 1, 2 and 3 on the northern side, to the west of the refuge, and tents 4, 5 and 6 on the southern side, with an access pathway from the refuge to the kitchen/dining tent, passing between the two rows, and access to each tent is from the central pathway. The tents are fixed above ground and each guest tent is approximately 8m wide including the fly. Each guest tent accommodates 2 people. Guest tent 3 is accessible, with a raised level walkway between the deck of the tent and the deck on the western side of the caretaker's accommodation and refuge building.
The kitchen and dining tent is to the far east of the guest tents and adjacent to the southern boundary. The kitchen and dining tent is located near the head of the creek flowing towards the north. It has a rectangular floor plan of approximately 8m x 20m.
The Inner Protection Area (IPA) required for fire safety comprises approximately 11% of the site and extends to the south of the site over a portion of the unmade Sussex Street.

[5]

Planning framework

Sutherland Shire Council Local Environment Plan 2015 (LEP 2015) contains a savings provision, at cl 1.8A, for development applications made before the commencement of the plan and not finally determined. Both development applications were made on 13 November 2014 before the commencement of LEP 2015.
The site is identified as Zone 12 Special Uses and words on the zoning map in Sutherland Shire Council Local Environment Plan 2006 (LEP 2006) identify the site as Zone 12 Recreation Camp. The proposal is permissible with consent, as a use indicated in respect of the land by lettering on the zoning map, pursuant to cl 3 of LEP 2006. The objectives of the Special Uses zone are: (a) to provide for a range of community facilities and services to meet the needs of the community, (b) to allow for development by public authorities, (c) to provide for a variety of development in accordance with local educational, religious or similar community demand, (d) to ensure the scale and nature of new development is compatible with the surrounding urban form and natural setting of the zone, (e) to recognise critical requirements, as identified by the Commonwealth, relating to the use of Commonwealth land for defence purposes.
The relevant aims of LEP 2006 are: (c) to promote an appropriate balance of development and management of the environment that will be ecologically sustainable, socially equitable and economically viable, (g) to preserve and enhance the quality of native vegetation and fauna, (h) to protect environmentally sensitive areas,
Clause 21 of LEP 2006 Environmental Risk is a pre-condition to the grant of consent, as follows: The consent authority must not consent to development on bush fire prone land unless it has considered the following matters that are of relevance to the development: (a) the extent to which the proposed development will achieve an appropriate balance between the conservation of the natural environment and the provision of appropriate bush fire protection measures, (b) the risk of bush fire to life, property or the environment, (c) the extent to which any proposed buildings will be constructed using techniques and materials to maximise their resistance to bush fire, (d) whether adequate measures will be in place to enable the safe evacuation of people from the land, and enable access to that land by emergency services, during a bush fire, (e) the intensity of the existing and proposed use of the land, (f) the need to restrict vulnerable development on the land. Note. Section 79BA of the Act and the Rural Fires Act 1997 also make provision for the carrying out of development on bush fire prone land.
Clause 51 of LEP 2006, Ecologically sustainable development, is also a pre-condition to the grant of consent, as follows: The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development: (a) the principles of ecologically sustainable development, (b) the extent to which the proposed development will meet the needs of the present without compromising the ability of future generations to meet their needs, (c) the extent to which the proposed development will improve the quality of life, both now and into the future, in a way that maintains the ecological processes on which life depends, (d) the extent to which the proposed development will contribute to the achievement of high quality ecologically sustainable development outcomes for the urban environment of Sutherland Shire, (e) to extent to which the proposed development will retain and enhance the natural environment.
The consent authority must, before granting consent under cl 54 of LEP 2006, consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place and notify the Aboriginal community about the application and consider any response received, at sub-cl (8).
LEP 2015 is a relevant matter for consideration, pursuant to s 79C(1)(a)(ii) of the EPA Act. The site is zoned E2 Environmental Conservation pursuant to LEP 2015. The objectives of the E2 zone, which are a mandatory consideration for an application made under LEP 2015, are: • 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 ensure that development, by way of its type, design and location, complements and enhances the natural environment in environmentally sensitive areas.
Clause 2.5 of LEP 2015 is an enabling clause that permits additional uses, with consent, on land listed in Schedule 1, including at 1, use of land at 60-70 Bournemouth Street, Bundeena for the purpose of an eco-tourist facility.
The land the subject of the access proposal is zoned E1 National Parks and Nature Reserves pursuant to LEP 2015. The objectives of the E1 zone are: • To enable the management and appropriate use of land that is reserved under the National Parks and Wildlife Act 1974 or that is acquired under Part 11 of that Act. • To enable uses authorised under the National Parks and Wildlife Act 1974. • To identify land that is to be reserved under the National Parks and Wildlife Act 1974 and to protect the environmental significance of that land.
Clause 5.9 of LEP 2015, 'Preservation of trees or vegetation' has at its objective the preservation of the amenity of the area, including bio-diversity values, through the preservation of trees and other vegetation.
The effect of the proposal on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place, by means of an adequate investigation and assessment, must be considered under sub-cl 5.10(8) of LEP 2015.
Clause 5.13 of LEP 2015, 'Eco-tourist facilities' is as follows: (1) The objectives of this clause are as follows: (a) to maintain the environmental and cultural values of land on which development for the purposes of eco-tourist facilities is carried out, (b) to provide for sensitively designed and managed eco-tourist facilities that have minimal impact on the environment both on and off-site. (2) This clause applies if development for the purposes of an eco-tourist facility is permitted with development consent under this Plan. (3) The consent authority must not grant consent under this Plan to carry out development for the purposes of an eco-tourist facility unless the consent authority is satisfied that: (a) there is a demonstrated connection between the development and the ecological, environmental and cultural values of the site or area, and (b) the development will be located, constructed, managed and maintained so as to minimise any impact on, and to conserve, the natural environment, and (c) the development will enhance an appreciation of the environmental and cultural values of the site or area, and (d) the development will promote positive environmental outcomes and any impact on watercourses, soil quality, heritage and native flora and fauna will be minimal, and (e) the site will be maintained (or regenerated where necessary) to ensure the continued protection of natural resources and enhancement of the natural environment, and (f) waste generation during construction and operation will be avoided and that any waste will be appropriately removed, and (g) the development will be located to avoid visibility above ridgelines and against escarpments and from watercourses and that any visual intrusion will be minimised through the choice of design, colours, materials and landscaping with local native flora, and (h) any infrastructure services to the site will be provided without significant modification to the environment, and (i) any power and water to the site will, where possible, be provided through the use of passive heating and cooling, renewable energy sources and water efficient design, and (j) the development will not adversely affect the agricultural productivity of adjoining land, and (k) the following matters are addressed or provided for in a management strategy for minimising any impact on the natural environment: (i) measures to remove any threat of serious or irreversible environmental damage, (ii) the maintenance (or regeneration where necessary) of habitats, (iii) efficient and minimal energy and water use and waste output, (iv) mechanisms for monitoring and reviewing the effect of the development on the natural environment, (v) maintaining improvements on an on-going basis in accordance with relevant ISO 14000 standards relating to management and quality control.
Clause 6.7 of LEP 2015, 'Environmentally sensitive land - riparian land and watercourses', is as follows: (1) The objective of this clause is to protect and maintain the following: (a) water quality within watercourses, (b) the stability of the bed and banks of watercourses, (c) aquatic and riparian habitats, (d) ecological processes within watercourses and riparian areas. (2) This clause applies to land identified as "Environmentally Sensitive Land" on the Riparian Lands and Watercourses Map. (3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider: (a) whether or not the development is likely to have any adverse impact on the following: (i) the water quality and flows within the watercourse, (ii) aquatic and riparian species, habitats and ecosystems of the watercourse, (iii) the stability of the bed and banks of the watercourse, (iv) the free passage of fish and other aquatic organisms within or along the watercourse, (v) any future rehabilitation of the watercourse and riparian areas, and (b) whether or not the development is likely to increase water extraction from the watercourse, and (c) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
The definition of eco-tourist facility under LEP 2015 is: eco-tourist facility means a building or place that: (a) provides temporary or short-term accommodation to visitors on a commercial basis, and (b) is located in or adjacent to an area with special ecological or cultural features, and (c) is sensitively designed and located so as to minimise bulk, scale and overall physical footprint and any ecological or visual impact. It may include facilities that are used to provide information or education to visitors and to exhibit or display items. Note. See clause 5.13 for requirements in relation to the granting of development consent for eco-tourist facilities. Eco-tourist facilities are not a type of tourist and visitor accommodation - see the definition of that term in this Dictionary.
Controls for the preservation of trees and bushland vegetation, in Sutherland Shire Council Development Control Plan 2006 (DCP 2006) apply to single or multi-trunked tree with a diameter of 100mm or more measured at 500mm above ground level, at 4.b of Chapter 4.
The objectives for trees and bushland in areas subject to bushfire risk are to achieve an appropriate balance between the conservation of the natural environment and the provision of appropriate bush fire protection measures for development in areas subject to bushfire risk, at 4.f.1 of Chapter 4, DCP 2006. In assessing a proposal on bushfire prone land, the consideration of bushfire risk will always take priority over other assessment principles within the same section of DCP 2006, at 4.f.2 of Chapter 4.
The objectives and assessment principles for Greenweb Areas are a relevant consideration, at 4.j of Chapter 4, DCP 2006 and the objectives and assessment principles for dead trees which contain habitat are a relevant consideration, at 4.l of Chapter 4, DCP 2006. Where consent is granted for the removal of an existing tree or bushland, replacement planting of indigenous trees is to be carried out at a rate of 4 trees for every tree removed, at 4.p of Chapter 4, DCP 2006.

[8]

Bush fire safety

The Council's contention regarding bush fire safety is as follows (exhibit 1): The site is not suitable for the proposed development due to the following bushfire safety issues raised in this contention. The RFS has not issued GTAs for either the original or the amended proposal. Instead they have issued a Bush Fire Safety and an amended Bush Fire Safety Authority, respectively, pursuant to s100B of the Rural Fires Act 1997, subject to conditions. The proposal does not comply with the conditions outlined in the BFSA as particularised below. The amended BFSA is issued under s100B of the Rural Fires Act, 1997 and not the Environmental Planning and Assessment Act, 1979 and if a Bush Fire Safety Authority is not complied with, its enforcement does not fall within the jurisdiction of the EP& A Act, 1979. Significant elements of the proposal require modification and further review by the competent bushfire authority, particularly the amendments and to the emergency management plan and compliance with the requirements for ongoing maintenance of the Inner Protection Area and Fuel Reduced area. The requirements are issued under a BFSA are the responsibility of the Rural Fire Service and such matters are beyond the expertise and resources of Sutherland Shire Council to monitor and/or enforce. Council is not satisfied that these will be complied with over the life of the development. Particulars a. The Applicant's bushfire report fails to adequately address the following matters: i. The bushfire report assumes that road access and maintenance of such roads to the required standard will be achieved. However the track currently proposed for use is on land owned by the National Parks and Wildlife Service. The Applicant has failed to demonstrate a legal entitlement to use this land. The Applicant's bush fire safety report (at page 28) acknowledges that securing formal legal access is critical. ii. The Applicant's bushfire report incorrectly identifies the slope of the Inner Protection Area (IPA) as being largely in the range of 15-18 degrees. This measurement starts from a point under the actual dwelling itself, which is not part of the IPA. The actual slope of the proposed IPA when measured from the external footprint of the building (from the northwest through to the north east of the building) exceeds 18 degrees and therefore it cannot comply with clause 4.1.3 of Planning for Bushfire Protection 2006 (PBP). Even slopes of 15-18 degrees mean that ongoing maintenance of the IPA is impractical using the methods proposed. This will result is an unacceptable bushfire risk as the IPA is unlikely to be managed over the life of the development due to the steep terrain of the land. iii. The proposal now introduces a Fuel Reduced Area (FRA) over the remainder of the site, excluding the riparian creek lines. While frequency of maintenance for the FRA would be less than for the IPA, there is insufficient information provided regarding the slope or vegetation composition of the FRA to be satisfied that ongoing maintenance over the life of the development, which relies on manual means and covers an extensive area. iv. Council is not satisfied that the IPA or the FRA will be maintained over the life of the development without regular enforcement action. Further maintenance of the IPA and FRA is a requirement of the Bush Fire Safety Authority issued in accordance with section 100B of the Rural Fires Act, 1997. Council does not have the jurisdiction to enforce regular maintenance of the IPA or FRA under the Rural Fires Act. Council does not have the resources or expertise to commit to such action over the life of the development. v. Further the BFSA requires the relocation of the building so that the IPA to the southern boundary is not less than 20m, measured from the external footprint of the building. Relocation of the building to the north by 6.4m is required to comply with clause 2 of the BFSA, if the same dwelling design is to be retained. In addition the BFSA requires a distance of 35m east and west and 50m north east and northwest measure from the external footprint of the building. However, the survey data does not extend sufficiently far enough from the footprint of the building in any direction to fully assess the slope of the IPA to be maintained and/or identify the vegetation which may be removed to comply with the GTAs and the environmental impacts of the required IPA. vi. The bushfire report does not adequately address procedures to ensure the safety of the occupants of the dwelling in the event of a bushfire or forecast periods of heightened bushfire danger (Fire Danger Index of severe or above) or in times when the Royal National Park is closed to the public. vii. Planning for the refuge does not consider the location of the Biomass fuelled microCHP system and the compost rooms, which places potential fire sources within the same building as the refuge, which, if ignited, would threaten the refuge building and occupants therein. viii. It is proposed that emergency communications will rely on wi-fi and mobile phones, reception for which is limited in Bundeena and unreliable in emergencies. ix. The bushfire report relies on an emergency escape vehicle. This is unenforceable over the life of the development. x. The Bushfire Emergency Evacuation Plan requires that the caretaker will return periodically to the site, once evacuated to check on security. This will create difficulties for fire management as they cannot be certain that the evacuation is complete, or that the site is unoccupied. xv. The Bundeena Valley Bush Fire Evacuation Plan at page 2 lists Sutherland Council as the Certifying/Approval Authority, and places (through the note below the Council signature pane), all responsibility on the Council for certification, requiring other parties only to note its content. Council does not have the expertise to sign off on this plan, which is required by the RFS under their BFSA and their guidelines. As such as the BFSA appear to require modification to the current document, the plan should be modified in accordance with the BFSA and then reviewed by the RFS as the evacuation plan is required under the Rural Fires Act, 1997 xvi. The Evacuation Plan and the BFSA do not contain any provisions for the ongoing review of the evacuation plan over the life of the development. xvii. The arrangements for closure during a confirmed fire introduces the terminology "uncontrolled fire" which is not used by the Rural Fire Service in its incident management or community warning arrangements. The arrangements should rely on established community warning categories utilised by the RFS for the community. xviii. The Manager of the facility does not have adequate training to rely on the bushfire safety plan. b. The amended Bush Fire Safety Authority (BFSA) issued by the Rural Fire Service cannot be satisfied as: i. The existing 'road' to the east referred to in condition 6 is an access track which is not currently of the standard required by the BFSA. The Applicant does not own this land nor have a legal right to use, upgrade or maintain it. Therefore, this proposed development cannot comply with condition 6 of the BFSA. ii. Condition 1 of the BFSA requires amended site plans to be produced. Absent these plants, the IPA as required by condition 2 cannot be achieved wholly within the site. iii. Conditions 1 & 2 require that the IPA is measured from the external footprint of the building. Council considers that the deck is part of the building footprint and the external footprint of the building commences from the outer edges of the deck. This is not just a technicality, but is necessary to ensure that the entirety of the building is adequately protected. iv. The IPA by condition 2 cannot comply with the requirements of clause 4.1.3 of PBP, as it is located on slopes exceeding 18 degrees and on highly erodible soils. Therefore it does not achieve the required IPA maintenance performance criteria in this clause (see table on page 19 of PBP). v. The plans dated 10 February 2016 ref PR124192SU Issue H approved by the RFS do not show the entire extent of the IPA and the FRA. c. The BFSA raises the following issues which are not adequately addressed in the Applicant's plans and documentation: i. Condition 4 specifies water requirements. The Applicant has not demonstrated how a separate and sufficient water supply for fire fighting purposes can be achieved and maintained given that there is no permanent water source on the site. ii. The evacuation plan does not comply with the requirements of condition 7(b)(vii) of the BFSA in that it does not provide clearly defined management procedures regarding closure of the facility during a Total Fire Ban. d. The proposal offends clause 21 of SSLEP 2006 and clauses of PBP outlined above. e. Full details of the works required to meet the BFSA have not been submitted to enable assessment of the impact of bushfire safety requirements on the subject site.
The Council no longer presses the particulars of the contention at a) xv, xvi and xvii regarding the Bush Fire Evacuation Plan for the proposal following the amendment of that plan, dated 16 February 2017 (exhibit J). Furthermore, the Council's particulars at a) v, vi, ix, x, xviii and c) ii are resolved by the most recent Bush Fire Safety Authority dated 25 January 2017 (BFSA) and amendments to the proposal, including the amended Bush Fire Evacuation Plan. No evidence was adduced or submissions made regarding particulars a) vii (location of the compost room) and viii (emergency communications). The parties are to resolve by agreement the issue raised regarding the location of the compost room. The parties are to agree on a suitable form of technology, such as a satellite telephone, to be maintained on site by the manager at all times and this requirement is to be imposed by condition and noted in section 11 of the Bush Fire Evacuation Plan.
The NSW Rural Fire Service (RFS) has provided the Council with an amended BFSA dated 25 January 2017 pursuant to s 100B of the Rural Fires Act 1997. A summary of the conditions of the BFSA, relevant to these appeals, are as follows:

The area around the combined caretaker's accommodation and refuge building is to be managed as an IPA consistent with section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the RFS's 'Standards for asset protection zones'; in the following dimensions: south for 20m, east and west for 35m, north-east and northwest for 50m and north for 60m. The IPA is to be measured from the external footprint of the building. Where the compliant asset protection zone (APZ) cannot be achieved within the subject site and will extend into the unformed road named Sussex Street, the applicant is to demonstrate a formal easement pursuant to s 88B of the Conveyancing Act 1919 has been obtained or other rights to manage the land. If this is not able to be achieved, amended plans are to be submitted with a request for a modified BFSA.
At the commencement of building works and in perpetuity, a fuel reduced area shall be maintained over the area shown in the plans and as detailed in the bush fire report prepared by Sydney Bushfire Consultants dated 1 Feb 2016.
Requirement for measures to provide adequate service of water for the protection of buildings during and after the passage of fire.
The road network to provide access to the development shall be maintained to the standard of a public road in accordance with section 4.1.3(1) of Planning for Bush Fire Protection 2006, except where modified by the Bush Fire Assessment Report.
The NPWS track proposed for access to the proposal is also to be maintained to the standard of a public road in accordance with section 4.1.3(1) of Planning for Bush Fire Protection 2006, except where modified by the bush fire assessment report.
Requirement for an emergency/evacuation plan. The management procedure is to require the closure of the facility during a total fire ban, or during periods of Extreme or Catastrophic Fire Danger Rating (FDR) , or when directed by the RFS.
Paths from tents to the refuge are to be safe and surface fuels are to be less than 4 tonnes per hectare (IPA standard).
Accommodation for tourists shall not exceed 12 persons.
A mechanism for the relocation of occupants on days of total fire ban or adverse fire activity is to be provided.
The proposed tents are to be located within 50m of the refuge building. The refuge building shall be clearly signposted.
Requirements for the construction of the caretaker's accommodation and refuge building to be constructed to comply with the relevant Australian Standard to withstand the potential impacts of bush fire attack.

The bushfire experts agreed on the following and I accept their agreement:

The amended Bushfire Evacuation Plan dated 16 February 2017 (exhibit J) is acceptable and is consistent with the relevant conditions of the BFSA.
Vehicular access is required to the site over the life of the development and the access is required to be 6.5m wide.
Occupants of the proposal can only be evacuated in advance of a bush fire. In the event of a bush fire threatening the track in the Royal National Park, it would not be safe for occupants of the proposal to be evacuated and they would have to take refuge on the site. Nor would it be safe for the RFS to access the site.
The caretaker's accommodation and refuge building constitutes a Special Fire Protection Purposes development (SFPP) under the RFS 'Planning for Bush Fire Protection' Guide 2006 (exhibit 3, tab 9).
The area of the IPA is approximately 0.6ha; 11% of the site.
The ground fuel loading within the IPA is to be maintained at 4 tonnes/ha.
The existing canopy cover of the proposed IPA is approximately 60% and this will be reduced to 15% by the creation of the IPA. It is acceptable to have clumps of trees within an IPA, as long as there is not a continuous canopy. The purpose of an IPA is to bring the fire out of the canopy in order to reduce its intensity.
It is desirable to move the kitchen and dining tent closer to the caretaker's accommodation and refuge (in response to Dr Korbel's concern regarding the proximity of the tent to the riparian zone) to achieve a shorter distance between the kitchen/dining tent and the refuge.

The experts agreed that the APZ is required to ensure the caretaker's accommodation and refuge building will not experience a radiant heat level greater than 29kW/sqm. Mr Swain agreed with the applicant's submission that the RFS 'Ecotourism' Fact Sheet 1/14 (exhibit 12), which states that an APZ sufficient to ensure the refuge building/s will not experience a radiant heat level greater than 10kW/sqm, does not apply to the proposal, because the accommodation for tourists does not exceed 12 persons. A downslope IPA of 100m would be required to ensure the caretaker's accommodation and refuge building will not experience a radiant heat level greater than 10kW/sqm. I accept the applicant's submission that the reference in the fact sheet to "maximum number of occupants exceeds 12 persons" refers to the maximum number of guests at the proposal and not to the total number of people on the site, consistent with the performance criteria for eco-tourist accommodation in Chapter 4 of Planning for Bush Fire Protection 2006, "the overall accommodation for tourists does not exceed 12 persons". The applicant's submission is substantiated by the BFSA, which nominates the dimensions of the IPA beyond the footprint of the caretaker's accommodation and refuge building, at condition 1. If the RFS was of the view that a downslope IPA of 100m would be required to ensure the caretaker's accommodation and refuge building will not experience a radiant heat level greater than 10kW/sqm, presumably condition 1 would have nominated a distance of 100m for the northern extent of the IPA or the BFSA would not have been issued. I accept Mr Swain's agreement under cross-examination with this proposition (transcript, D1, p73).
The experts disagreed over the size of an appropriate IPA required to ensure the caretaker's accommodation and refuge building will not experience a radiant heat level greater than 29kW/sqm in the event of a fire. Their dispute for the downslope extent of the IPA centred on whether the 'effective slope' is determined prior to, or following, determining the APZ according to the Planning for Bush Fire Protection Guide. According to Mr Swain, the north-eastern and north-western extent of the IPA should extend to 60m from the footprint of the caretaker's accommodation and refuge building, and according to Mr Jarvis, 50m. The northern extent of the IPA is 60m. Although Mr Swain's interpretation of the procedure is more persuasive (because it is unlikely that in determining an APZ one would be required to guess the APZ as part of the procedure), I am satisfied that the downslope IPA nominated by the applicant is appropriate due to the acceptance of it by the RFS in the BFSA condition 1 (exhibit 3, f 249).
According to Mr Swain, the IPA to the south of the caretaker's accommodation and refuge building should be measured from the external stairs at the southern corners of the building. The BFSA condition 1 requires the IPA to be measured from the external footprint of the building. The external footprint of the building includes the external stairs. The IPA is to be adjusted on the southern side of the caretaker's accommodation and refuge building to be consistent with the BFSA condition 1.

[10]

Ecology

The Council's contention in relation to the impact of the proposal on the ecology is as follows: The proposed development should be refused as the application does not adequately assess the environmental impacts of the proposed development. It has an unacceptable environmental impact on the land due to the extent of clearing, landscaping and ongoing maintenance work required for the IPA and the FRA. The ecological assessment does not adequately assess the impact of the required clearing for bushfire management on the EECs located in close proximity to the proposal. Particulars a. The ecological assessment fails to consider the edge effects on flora and fauna including the noise, light and hydrology impacts of the proposal. b. The ecological assessment has not sufficiently identified the number, species, location and area of trees and hollow bearing trees to be removed, trimmed or retained as required for APZs and construction works, or the effect that the modification of vegetation (e.g. removing groundcover) will have on the ecology of the region. The RFS (26 June 2015) indicates that the IPA 'shall be managed for a minimum of 62m to the north, 60m to the east, 20m to the south and 50m to the west of the proposed refuge building'. c. The ecological assessment has not detailed the location for the replanting of trees in accordance with SSDCP 2006 Chapter 4, part 4 and how this will comply with the requirements of the RFS and/or the impact of such tree planting on the two EECs make-up which are located on the property, but outside the IPA and FRA. d. The ecological assessment has not considered the entire impacts of clearing the IPA and the ongoing maintenance of the Fuel Reduction Areas (FRA) and IPA on flora and fauna on the site, including the impacts of such management strategies on habitat for the Pygmy Possum. e. The ecological assessment has ignored the clearing permissible on the site due to the 10/50 legislation for the proposed caretakers dwelling. f. The siting and layout of the proposal fails to minimise environmental impacts due to the widespread development proposed. The addition of a kitchen/dining tent as well as additional pathways and carparking has spread the development across the property thus extending potential environmental impacts due to vegetation management, pedestrian access, light and noise. g. The ecological assessment inadequately assesses the full impact of clearing and ongoing management of the IPA and FRA required on highly erodible soils present on the site. Further, the ongoing maintenance regime will avoid the natural replacement of flora on the property, which will change the areas biodiversity and character over time. h. The 7 Part Test fails to assess the ecological impacts (on all endangered species including fauna) based on a comprehensive understanding of the full extent of clearing required to manage bushfire risks (including the IPA and FRA and the ongoing maintenance requirements as detailed in Appendix 4.1) for the proposed development. i. Banksias and ground cover to be removed from the IPA and FRA are an important habitat of the Pygmy Possum, which have been recorded in close proximity to the site and have not been considered by the ecology report. j. The details of sewerage and wastewater treatment (such as filtration, trenches, irrigation) for the site are inadequate. The potential impact of pits, soak trenches and potential overflow (particularly during wet weather) on the soil and in areas of close proximity to riparian zones has not been adequately assessed. k. Approval under the Water Management Act is required for the removal of vegetation within a riparian zone of 10m within the creeks on the site. The FRA extends to the northern boundary of Lot 3 and further, the FRA extends to the western area of the site within the area of the creeks. l. The assessment of the clearing effects on the destabilisation of soil, erosion and sedimentation which, due to topography, may impact on the Coastal Freshwater Wetlands or the Coastal Sand Bangalay Forest at the bottom of the gully has not been adequately completed considering the limitation placed on the revegetation of the site due to the bushfire clearing requirements. m. The proposal fails to comply with the principles of ecologically sustainable development set out in clause 51 in SSLEP 2006. n. The proposal has not complied with the requirements of Part 5A of the EP&A Act and the TSC Act. o. There has been no assessment of the ecological impacts of the disturbance required to achieve vehicular and pedestrian access to the subject site. p. The ecological assessment has not sufficiently identified all of the different species of fauna and flora on the site, or assessed the impacts of the proposal, including on-going management of the IPA and FRA, on these species. q. Claims regarding the environmental impacts of the clearing of the FRA are inaccurate as the periodic hazard reduction burning has environmental benefits in terms of species regeneration. r. Full plans to comply with the BFSA have been submitted and therefore no planning or ecological assessment of those works has been undertaken. s. The proposal offends the following objectives and considerations in clause 5.13 Eco-tourist facilities in SSLEP 2015:- a. Objectives (1)(a) and (b); b. Clauses 5.13 (3)(b), (d), (e), (g) and (k). t. The proposal offends the following objectives and considerations in SSLEP 2006:- a. Objectives 3(c), (g) and (h). b. Clause 51.
The ecology, soil and arboreal experts agreed on the following in their joint report (exhibit 6) and oral evidence and I accept their agreement:

The area of land is currently relatively undisturbed and in moderate to high ecological condition, however, some weed invasion exists in the Coastal Freshwater Wetland area, probably as a result of runoff from adjacent urban development and the condition of this habitat is classified as moderate.
The proposed weed management within the two EECs will have a positive effect on their condition by removing weeds, assuming that the weeds are appropriately managed according to the Plan of Management (PoM).
Ground cover was lost on the site during the recent controlled fire approximately 18 months ago, as it was a high intensity fire. Following burning off on the site, there is a high risk of soil erosion due to sediment being transported off the site, until the ground cover recovers.
The proposal includes a significant change to the IPA which is approximately 11% of the area of the site. Dr Korbel noted that there will also be structural changes within the FRA.
The clearing required to achieve the IPA will effectively clear the site of a large amount of native vegetation, particularly shrubs and small trees, leaving herbaceous plants such as grasses and graminoids and very low shrubs.
Red bloodwoods are an extremely common tree and are represented in many of the coastal communities. According to Dr Robertson, the Red bloodwood is one of the dominant trees in many coastal communities and the fact that they are stunted in this location and have a woody root stock is not unusual when found in coastal areas.
The impacts caused by lighting at night could be managed by implementing appropriate management measures in the PoM to reduce the impact to the ecological communities present on the site to a sustainable and non-significant level. According to Dr Korbel, lighting must be directed away from the bushland and kept to a minimum and if these measures are implemented the impact of lighting on the site will be minimal due to the limited number of tents.
There is potential to manage noise impacts on site, however, the success of those management measures depends on implementing the policy in the PoM. According to Dr Korbel, the no-noise policy in the PoM is optimistic and unlikely to be achieved and noise has the potential to disturb nocturnal fauna in the area.
Private vehicle usage and associated traffic noise can be adequately managed without causing significant ecological issues.
The planting of over 1700 trees on site to comply with the DCP is considered unviable, due to the restriction of the canopy cover in the IPA and the density of trees across the site.

Dr Robertson's evidence is as follows:

Many of the trees proposed for removal are relatively small trees and they can be removed carefully in stages, without the use of heavy machinery. The ground covers will recover following the removal of trees in this manner, although there may be some initial damage to the ground stratum.
The bushland surrounding the IPA will be relatively undisturbed.
Within the IPA there will be a change in conditions however there are quite a number of native species that will be able to grow in the changed conditions.

Dr Korbel agreed that if, and only if, all the management strategies within the PoM are carried out and appropriately managed, the prospect of there being any edge effects within the Royal National Park is remote.

[11]

Edge effects

The experts disagreed on the significance and extent of the impact of edge effects on the ecology of the region. Dr Robertson's explanation of edge effects is as follows (exhibit G, pars 45-46): "Edge effects" are indirect effects that take place on plans and animals that occur along the interface or edge of an ecosystem or community (typically a plant community). Edge effects can be due to natural phenomena or can be caused by human activities. In the latter, edge effects result from changed environmental conditions that occur along such an edge and they may be detrimental to some species and communities. Edge effects can include a wide variety of factors, including microclimatic changes in light, temperature, wind, and the incidence of fire. Edge effects can also include changes in water and nutrient availability and in particular, below developments there may be increased levels of runoff and nutrients that encourage the spread of weeds.
According to Dr Korbel, the changes to the site, as a result of the formation of the IPA, will result in significant edge effects around the IPA, which are widely recognised as altering habitats and contributing to forest degradation and loss of biodiversity.
Dr Robertson does not consider that edge effects will have a significant detrimental impact upon the flora and fauna of the site, for the following reasons:

The partial removal 0.6 Ha of vegetation to create the IPA and the modification of vegetation to create the FRA is unlikely to significantly contribute to habitat fragmentation, as vegetation surrounding the proposal will continue to maintain connectivity with vegetation to the east, south and west of the area and the Royal National Park. The retention of 15% canopy cover and a proportion of shrubs and ground layer vegetation, including grasses, graminoids and other herbaceous plants within the IPA allows for the continued movement of fauna species into and through the IPA. The clearing within the IPA will cause native vegetation on the site, including grasses and graminoids, to progressively increase.
The recreation camp/eco-tourist accommodation is not located in proximity to any of the first-order streams within the site and the proposal is unlikely to reduce water quality downstream.
Weed invasion can be minimised and the majority of the site will remain natural bushland.
The reduction of canopy cover from 60% to 15% to form an IPA will result in a categorisation of the area as 'Woodland'.

I accept the agreement of the ecology experts that any ecological effects caused by noise and light from the recreation camp/eco-tourist accommodation can be effectively managed, if appropriate management measures are included the PoM and are implemented.
I accept Dr Robertson's evidence that the edge effects or indirect effects of the proposal, both the introduction and use of the structures on the site and the creation of an APZ, will not be significant, because the proposal is unlikely to contribute to habitat fragmentation as the area of canopy reduction is relatively small and will result in other native vegetation progressively increasing in proportion due to a lack of competition from larger vegetation and an increase in sunlight.
I accept Dr Robertson's evidence that the removal of trees to form the IPA will not require heavy machinery, and can be undertaken in stages, using hand held machinery and pruning of trees. This requirement is to be imposed on the consent by condition. I accept his evidence that this will ensure the ground cover will recover quickly.

[13]

Habitat for native fauna

Dr Robertson has assumed the Eastern Pigmy-possum is present on the site, although the ecology experts agreed that the existing vegetation within the area proposed as the IPA is not ideal habitat for the Eastern Pygmy-possum and that their ideal habitat is the heath-leaved banksia (Banksia ericifolia) which is widespread in areas beyond the site.
According to Dr Robertson, there is likely to be a change in respect of biodiversity within the IPA, as a result of the changes to canopy cover from open forest, which is typically between 30-70%, to woodland, due to the required maximum canopy cover of 15%. In Dr Robertson's view, the proposed change in canopy cover within the IPA will not have a significant impact on the local population of the Eastern Pigmy-possum, because the IPA is confined to an area of 0.6 ha and a high proportion of tree hollows will remain within the IPA.
In Dr Robertson's opinion, the proposal is unlikely to have a significant impact on the existing population of the Eastern Pigmy-possum, because the extent of partial clearing is small and the species is considered to have a stronghold within the Royal National Park. In his view, a high proportion of tree hollows will remain in the area and the habitat for the Easter Pigmy-possum could be augmented in the vicinity of the site by the use of appropriately sized artificial nesting boxes. Dr Robertson noted that tree hollows are not permanent, but emerge and evolve as trees grow and age.
According to Dr Korbel, nesting boxes can be utilised by other fauna that uses tree hollows for nesting and sometimes the Eastern Pigmy-possums do not like to utilise nesting boxes, instead preferring tree hollows. Dr Korbel noted that clearing is a key threatening process under the Threatened Species Conservation Act 1995 for Eastern Pigmy-possums and Dr Robertson noted that removal of hollow bearing trees in general is regarded as a key threatening process.
In Dr Robertson's opinion the tree tags have been deliberately removed from trees within the site and this confounds an estimate of tree hollows on the site and the trees will have to be retagged and resurveyed prior the removal of trees on the site to ensure that the maximum number of existing tree hollows within the IPA are retained. It is his evidence that it is important for an ecologist to be present on the site when trees are felled to ensure that animals can, if possible, be relocated to a safe site.
I accept Dr Robertson's evidence that the ecological assessment has sufficiently estimated the number, species, location and area of trees; including hollow bearing trees to be removed to form the IPA for the purposes of the application and that a high proportion of tree hollows will remain in the area. As the tree number tags have been removed, a requirement that the trees be retagged and recounted prior to work commencing on the site is to be imposed on the consent by condition to ensure that the maximum number possible of existing hollow bearing trees are retained on site. The consent is to require by condition a watching brief for an appropriately qualified ecologist to be present on site during the removal of vegetation and construction works, to ensure that the removal of trees is carried out according to the consent and to appropriately relocate any salvaged wildlife.
The resident objectors referred to a breeding pair of Powerful Owls being present in the vicinity of the site and their concern that the proposal would have a detrimental impact on those individual birds. According to Dr Robertson, the Powerful Owl is a large predatory bird with a large territory, which can vary in size from one or two kilometres to five or more kilometres. Powerful Owls roost in trees with large hollows and so the Powerful Owl pair is certainly not nesting on the site, but those birds are possibly foraging across the site. In his view, a change to 0.6 ha of a large area of foraging habitat coupled with the relatively quiet and small nature of the proposal means that the proposal is unlikely to have a significant impact on those individual birds. I am satisfied that Dr Robertson's expert opinion on this issue addresses the concerns expressed by the lay witnesses.

[14]

Soil

The site has been burned every seven to ten years by RFS to manage the fire risk to the township of Bundeena. The experts agreed that an appropriate management regime for reducing bushfire fuel on the site is preferable to controlled burning, as the rate of erosion is significantly increased by fire in the short-term, particularly after a fire as intense as the last controlled burning on the site as the intensity of burning makes a difference to what happens with the soil profile, according to Mr Chapman. I accept their agreement. In Mr Chapman's view, the proposed management regime will lead to an overall improvement in ground cover.
According to Mr Chapman, grasses are effective at holding the soil profile together and there will be an increase in native grasses following the creation of the IPA. In addition, the leaf litter to be retained on the site within the IPA will protect the soil from rain splash. The erosion control measures contained in the 'Erosion and Sediment Control Plan' will supplement the vegetation in controlling erosion on the site.
Dr Korbel is concerned about the use of stepping stone block boxes and log retaining walls to provide paths through the IPA as in her view they may increase sediment runoff within the IPA. In her opinion, engineering works typically involve excavation and disturbance of the soil profile, the removal of ground cover and disturbance of organic materials and disruption of roots, which poses a more intense erosion hazard for the proposal when compared to the works required to create the IPA. Mr Chapman agreed with Dr Korbel that engineering works should be located away from steep slopes and after the works are completed, topsoil should be placed above any disturbed subsoil and the ground cover should be reinstated.
The experts agreed on a recommendation that a suitably qualified expert assess each tree for its contribution to site stability prior to clearing within the IPA and that an alternative method of soil stability be provided if necessary. Mr Chapman considers that a better environmental outcome would be achieved by including this in the selection criteria for deciding which trees are to be removed to create the IPA. I accept the agreed evidence of the experts and a condition is to be imposed on the consent to minimise and ameliorate the removal of trees that contribute to soil stability, as follows: A suitably qualified and accredited soil erosion and sediment control expert is to assess each individual tree within the IPA for its contribution to soil stability prior to its removal and if it is assessed that the tree contributes to soil stability, an alternative tree is to be removed wherever possible. If it is assessed that a tree that contributes to soil stability is to be removed, an appropriate soil stability control method is to be implemented.
The 'Erosion and Sediment Control Plan' for the site (Appendix E of exhibit 6) is to be imposed on the consent by attaching it or including it in the PoM and referring to it in the conditions of consent. I am satisfied on the basis of all of the expert evidence that Council's contention regarding the effect of the creation of an IPA on the destabilisation of soil, erosion and sedimentation which, due to topography, may impact on the Coastal Freshwater Wetlands or the Coastal Sand Bangalay Forest at the bottom of the gully is addressed by the management proposals for erosion in the proposal.

[20]

Legal access to the site

The Council's contention regarding access to the site is as follows: There is no legal vehicular access to the site. Vehicular access to this site is a fundamental requirement and the proposed development should not be approved without permanent legal access. Particulars a. The Applicant proposes to obtain access to the site over an existing track through the Royal National Park from Beachcomber Avenue and then over Sussex Street, a road which is owned by the estate of Edith Wolstenholme. b. The Applicant has failed to demonstrate that it has legal access permitting vehicular access to the site. c. Legal vehicular access is required over the life of the development. d. Vehicular access is essential for the functioning of the proposed development, being necessary to transfer guests and permanent residents to the site. e. Legal vehicular access is necessary to service the proposed development by the transfer of waste, water, LPG, sewage and other supplies. f. Further, legal vehicular access is an essential requirement for the evacuation of persons from the property in the event of a bush fire emergency or any other emergency. g. The Bush Fire Safety Authority (BFSA) from the Rural Fire Service dated 18 May 2016 rely on the provision of legal access to the site and such access must be upgraded to a public road standard in accordance with section 4.1.3 (1) of PBP. In the absence of a legal entitlement to those lands, there is no certainty that consent for such works will be issued, and therefore development consent should not be granted. h. The proposal offends:- a. Objectives in section 5 (a) (i) and (ii) of the EP&A Act; b. Section 79C (1)(c); c. SSLEP 2006 clause 21(d); d. Sections 4.1.3 (1) and 4.2.7 in PBP. i. There has been inadequate cumulative assessment of the environmental impacts of the application and the works that would be required to form appropriate access to the subject land.
The applicant proposes to access to the site from Beachcomber Avenue over an existing bitumen track through the Royal National Park and then over an unmade paper road known as Sussex Street. There is currently no legal vehicular access to the site over either parcel of land. Although development consent is not required for the use of the track or with any works associated with the use of the track, the parties agreed that evidence relating to the assessment of the potential impacts of the use of the track and those works associated with the use of the track should be provided and are subject to assessment.
The Office of Environment and Heritage (OEH) advised the Council on 10 February 2017 (exhibit 10) that a Review of Environmental Factors (REF) is required to determine the potential impacts the proposed use of the access way may have on the Royal National Park, following an application from the applicant for a right of access through the Royal National Park under s 153C of the National Parks and Wildlife Act 1974. The application seeks access for the managers, their staff and customers from Beachcomber Avenue. The applicant submitted a REF for the proposed access way to OEH on a draft basis on 9 February 2017 and the OEH advised the Council on 10 February 2017 that there is no assurance that the REF will be approved and a licence granted following the applicant's submission of the final REF. Once a final REF is submitted, a formal assessment will be undertaken which the OEH aims to determine the application within 70 days (exhibit 10).
The respondent submits that there is no evidence that there is a likelihood that access over the Royal National Park track would be granted to the applicant and even if such access is granted, there is no evidence that access would be granted in perpetuity (by an easement rather than a licence which may expire or be revokable by OEH).
The applicant submits that this aspect of the proposal can be dealt with by imposing a deferred commencement condition, as it is not a matter for consideration under s 79C of the EPA Act.
The bushfire and planning experts agreed that access to the site for the life of the development is essential and I accept their agreed evidence. I accept Mr Staunton's submission that legal access to the site is not appropriate for a deferred commencement condition (Huntington & Macgillivray v Hurstville City Council (No. 2) [2005] NSWLEC 155 [22]). If it were a matter of obtaining an easement to access the site pursuant to s 40 of the LEC Act or s 88K of the Conveyancing Act 1919, then it may well have been appropriately conditioned with a deferred consent. As there is no assurance that the REF will be approved by OEH and a licence granted, it is my view that final orders should not be made until that approval has been obtained by the applicant, because it is a matter fundamental to the proposal and there is no alternative access to this site.
The Council's contention regarding vehicular access and pedestrian safety is as follows: The proposal relies on vehicular access for construction and ongoing servicing of the proposal along a heavily used public walking track owned by the NPWS. Particulars a. The access track within the National Park is heavily utilised by the public for access to the walking tracks within the national park. There has been no assessment of the requirement for a public road on this land and the requirement for separate and safe pedestrian access through the Royal National Park. b. Currently the entrance to the access track through the Royal National Park is secured with a locked gate. There are no details of how access to and from the site will be managed through the National Park. In the absence of a legal entitlement to use the access track, the application should be refused. c. The proposal offends objectives (a), (b), (c), of clause 1.a.1 (1) in Chapter 7 of SSDCP 2006
The traffic experts agreed on the following in relation to the use of the track as vehicular access to the site (exhibit 9) and I accept their agreed evidence:

The volume of vehicles to the site, which will be restricted to authorised vehicles, is extremely low or negligible at times other than during emergencies, making a public road and a separate pedestrian access unnecessary.
The proposal provides sufficient parking and a minimum of two car spaces would be acceptable.

I accept the agreement of the traffic experts and the additional matters raised in the Council's contention are matters to be considered by OEH in determining the REF.

[21]

Lack of owner's consent for works required on land not owned by the applicant

The Council's contentions regarding the lack of owner's consent for works required on land not owned by the applicant is as follows: Development Application 14/1238 (appeal 2016/155813) the proposal The proposed development necessarily involves works required on land not owned by RVA Australia Pty Ltd and there is no landowners' consent for these works. Particulars a. The proposed development and the BFSA requires the construction of a road over Sussex Street, a road which is owned by Edith Wolstenholme, or her estate. b. The amended plans do not show the entirety of the stairs to the guest tents nor the access paths to the guests tents, which are located on the road known as Sussex Street. c. There is no owners' consent for this development application from the owner of Sussex Street for these works. d. The development application does not comply with clause 49 (1)(b) of the EP&A Regulation 2000. Development Application 14/1239 (appeal 2016/155592) the access proposal There is no landowner's consent for this development application (DA 14/1239). The proposal requires works on land within the Sussex Street paper road which is not owned by RVA Australia Pty Ltd. Particulars a. The amended proposal is for a road and associated access and egress over Sussex Street. b. Further, the BFSA issued by the Rural Fire Service on 18 May 2016 for DA 14/1238 requires an IPA to the south of the dwelling and refuge which onto this land. c. Also, the plans show that some form of access and stairs to the guest tents are proposed on this land. d. This land is not owned by RVA Australia Pty Ltd, the title for this property remains in the name of Edith Wolstenholme, or her estate. e. There is no landowner's consent for this development application. f. The proposal for the recreation camp and the BFSA requires the construction of a road over Sussex Street, which is owned by Edith Wolstenholme, or her estate. g. The development application does not comply with clause 49 (1)(b) of the EP&A Regulation 2000.
Sussex Street was never dedicated to the Council and was held in residue as part of the land in Vol 3065 F 63 by Edith Lucy Wolstenholme. The applicant does not have any perpetual rights over that land. According to the Council, the Court must be satisfied that there is a right of access to the land and a right to maintain an APZ on Sussex Street.
Ms Duggan SC submits that the question for determination is whether the owner's consent in Exhibit S is sufficient to give the necessary consent for the access proposal for the purposes of s 78A of the EPA Act and cl 49(1)(b) of the EPA Regulations. In the present case, there are two executors of the estate of Edith Wolstenholme. There is no dispute that the executors are relevantly the owners of the land. Exhibit S gives the consent of one executor. Ms Duggan SC submits that at law, the action of a single executor is taken to be the action of all and there is no requirement for all executors to perform the same action, or even consent to the taking of that action, the act of the single executor is sufficient for all purposes (Union Bank v Harrison Jones & Delvin Ltd (1910) 11 CLR 492 [508]). Mr Staunton submits that the consent of both executors is required for owner's consent for the access proposal.
There are two issues in this contention. The first is whether the access proposal has a valid owner's consent and the second is the requirement that there be a legal right, in perpetuity, to maintain the APZ that is not located on the site. Whether or not the consent of one executor is sufficient to give the necessary consent for the access proposal for the purposes of s 78A of the EPA Act and cl 49(1)(b) of the EPA Regulations may depend on the terms of the will. I consider that the evidence before me is inadequate for me to make a finding on this issue.
A valid owner's consent for the access proposal is not a legal right to maintain the portion of the APZ that is not located on the site. Access to site and access to the portion of the APZ not located on the site is fundamental to the proposal. It is not appropriate, in my view, to make final orders until the applicant has demonstrated that a right to manage the land beyond the site that forms part of the APZ has been obtained, to comply with the BFSA condition 1. In this circumstance, the issue of owner's consent for the access proposal can be put to one side; as the consent of the adjoining owner is required to obtain a legal right of access to the site and a legal right of access to maintain the portion of the APZ on that land, and in obtaining that legal right, the issue of owner's consent for the access proposal is likely to be resolved.

[22]

Widening of the existing track through the Royal National Park and access across an unmade portion of Sussex Street

The Council's contention regarding a lack of terms of approval from the RFS for the access proposal is as follows: Particulars a. This development application was referred to the RFS as integrated development and no GTAs or BFSA have been issued for this development application. b. Council notes that BFSA were issued by the RFS for DA 14/1238 and those works extended onto this land. However, this is a separate development application and GTAs or a BFSA are required for this application.
If an additional BFSA is required for the OEH to assess the application for a right of access through the Royal National Park, it is a matter for the OEH.
The Council's contentions regarding the environmental impacts as a result of the proposal to widen the existing track and extend the access across an unmade portion of Sussex Street are as follows: The proposed development should be refused, as there has been no assessment of the environmental impacts of the landscaping, clearing and road works on this land. Particulars a. The ecological assessment lodged with this development application does not map vegetation beyond Lot 3 DP 213924. Therefore it does not consider nor assess the impact of the landscaping and clearing for bushfire management on the land the subject of this appeal. b. The Applicant has not identified the number of trees, species of trees, their rule and the area of vegetation required to be removed within Sussex Street. c. The Applicant has not sufficiently identified all of the different species of flora and fauna found on the site, or assessed the impacts of the proposal on this flora and fauna. d. The Applicant has not demonstrated that the proposal will be ecologically acceptable and satisfy section 5A of the Environmental Planning & Assessment Act 1979. There is insufficient information to assess the proposed development. In particular there is insufficient detail in the following matters: a. The applicant has not provided an ecological report demonstrating the environmental impacts on flora and fauna of the landscaping, clearing and road works. b. The ecological assessment has not sufficiently identified the number of trees, species of trees, their location and the area of vegetation required to be removed within Sussex Street. c. The application has not identified where the replacement planting (at a rate of 4:1) for loss of trees and bushland is to occur onsite. d. The applicant has not provided a landscape plan showing the proposed finished environmental outcome of the proposed works.
The bushfire safety experts agreed that the width of the constructed access road is 5.5m and it is to be 6.5m, and that the distance along the track between Beachcomber Avenue and the site is 440m. The parties agreed that some work is required to either side of the existing track to make it 6.5m wide.
The experts agreed that the track is not safe to use during a bush fire and I accept their expert agreement. According to Mr Jarvis, visitors and staff will take shelter in the refuge during a fire if they are unable to be evacuated safely well before a bush fire event. Importantly, the PoM includes the following commitment (14.2 of PoM dated February 2017, exhibit U): The recreation camp will be evacuated and closed when the FDI is 75+ (Extreme or catastrophic) or in the event of an actual bushfire in the boundaries of the RNP.
The ecology experts agreed that the proposed trimming of vegetation along the access track and across the unmade Sussex Street will only remove a small amount of vegetation overhanging the track and will not significantly exacerbate any edge effects.
In Dr Korbel's opinion, the assessment of the impacts of the proposal on the track through the Royal National Park was insufficient and should have included, at a minimum, random transects through the vegetation around the track to properly identify and classify the vegetation in this area.
In Dr Robertson's view, the vegetation around the existing track does not fit the structural definition required by the scientific determination to classify it as the EEC, Eastern Suburbs banksia scrub woodland. However, even assuming that the vegetation around the track is Eastern Suburbs banksia scrub woodland, the proposal to trim a relatively small amount of vegetation either side of the track will not have any significant effect on the community, because it is already modified by the existing track and broad areas of the community would remain undisturbed and unimpacted by the proposal.
I accept the agreement of the experts and Dr Robertson's evidence that the proposal to widen the track by approximately 1m will not have any significant effect on the vegetation through which the existing track passes, because it is relatively minor change to the existing track.

[23]

Findings

Much of the objector evidence and the written submissions referred to the site as if it is part of the Royal National Park and the residents of Beachcomber Avenue, Bundeena, universally had an inherent objection to anything occurring on the site at all, because, understandably, they appreciate the amenity afforded by their proximity to the bush. A number of the resident objectors passionately expressed their desire for the site to be acquired by NPWS.
Those aspects of the submissions that explicitly or impliedly characterised the site as part of the Royal National Park are appropriately distinguished as firstly, an objection to the alienation of the land or secondly, an objection to the zoning of the land for a recreation camp, or under LEP 2015, for eco-tourist accommodation. The alienation of the land and its zoning, under both LEP 2006 and LEP 2015, are merely historical matters from the perspective of these appeals, and I am bound to give weight to the fact that the application is to use the site is for the specific purpose for which it is zoned (BGP Properties v Lake Macquarie (2004) 138 LGERA 237 [118]). The recent making of LEP 2015 (which undoubtedly followed the rigorous process for the making of a LEP prescribed under the EPA Act, including extensive community consultation) includes the enabling clause permitting the site to be used for the specific purpose of eco-tourist accommodation, demonstrating that Council has recently looked again at the potential development of this site, and confirmed that it is, theoretically, possible to develop the site consistent with the zoning, in an environmentally acceptable manner (BGP Properties v Lake Macquarie (2004) 138 LGERA 237 [119]). The requirement for a refuge on-site for eco-tourist accommodation and its consequences in terms of the creation of an IPA must have been known by Council when it zoned the land for this specific purpose.
I accept Mr Staunton's submission that the zoning does not create a presumption that the use for which the site is zoned will necessarily be achieved, but that the acceptability of the proposal depends on whether the design results in acceptable environmental impacts with reference to the matters for consideration under s 79C of the EPA Act.
I accept the agreement of the bush fire safety experts that the APZ is required to ensure the caretaker's accommodation and refuge building will not experience a radiant heat level greater than 29kW/sqm. I accept the agreement of the bushfire safety experts that the amended Bushfire Evacuation Plan (exhibit J) is acceptable and is consistent with the relevant conditions of the BFSA. I am satisfied that the downslope IPA nominated by the applicant is appropriate due to the acceptance of it by the RFS in the BFSA condition 1.
The BFSA condition 1 requires the IPA to be measured from the external footprint of the building. The external footprint of the building includes the external stairs. The IPA is to be adjusted on the southern side of the caretaker's accommodation and refuge building to be consistent with the BFSA condition 1.
There must necessarily be some management of the ecology on the site in order to provide an IPA for the proposed use, just as there has been management of the backyards in the dwellings on the southern side of Beachcomber Avenue to reduce the risk of bushfire. I am satisfied that the fire safety measures required by the proposal will have an acceptable and manageable impact on the flora and fauna of the site and its environs and that the scale, siting and operation of the proposal has minimised its environmental impacts.
I accept the agreement of the ecology experts that tree replacement at a rate of 4 trees for every tree removed to comply with the requirement in DCP 2006 at 4.p of Chapter 4 is considered unviable, due to the restriction of the canopy cover in the IPA and the existing density of trees across the site and as a consequence, it is appropriate to exercise the flexibility afforded by s 79C(3A)(b) of the EPA Act in relation to this control and not require replacement trees to be planted. The PoM is to be amended accordingly.
I am satisfied that the proposal is acceptable in terms of its impact on the identified EECs in the gully of the site, because the grey water system will not add significantly to the nutrient levels in the soil; erosion associated with controlled burning of the site is to be eliminated; erosion control measures will supplement the vegetation in controlling erosion on the site; and the weeding commitments in the WMP will improve the quality of the EECs, which is currently being impacted upon by the runoff from the dwellings to the north of the gully. The siting of the proposal away from the EECs and riparian zones, including the relocation of the kitchen and dining tent, contributes to the minimisation of the proposal's impacts on the ecology of the site.
I accept the agreement of the engineering experts that the sewerage and wastewater treatment proposal is acceptable.
I accept the agreement of the planning experts that the caretaker's dwelling is ancillary to the recreation camp/eco-tourist accommodation and is not an independent use. I accept Ms Elias' suggestion that a condition be imposed on the consent to ensure that occupation of the caretaker's accommodation is only permitted when the recreation camp is in operation.
I accept the agreement of the planning and visual impact experts that the visual impacts of the proposal when viewed from Bundeena will be acceptable.
I accept the Council's submission that the requirement for an Aboriginal Cultural Heritage Assessment can be adequately dealt with by a deferred commencement condition.
The proposal achieves an appropriate balance between the provision of appropriate bush fire protection measures and the conservation of the natural environment and it has been sensitively designed to complement and enhance the natural environment. The scale and nature of the proposal is consistent with the natural setting of the site.
I am satisfied that the proposal can be granted consent, if the outstanding issues regarding access to the site and access to the APZ beyond the site can be satisfactorily addressed.

[24]

Directions

The applicant is to:

Demonstrate that legal access to the site has been obtained.
Demonstrate that a right to access and manage the land to the south of the site has been obtained, to comply with the BFSA condition 1.
Adjust the IPA to conform to the BFSA dated 25 January 2017 Condition 1 (exhibit 3, f 252), measuring the IPA from the external footprint of the caretaker's accommodation and refuge building, including the external stairs at the southern corners of the building. An updated plan of the IPA and FRA, showing the entire extent of the FRA, to scale, is to be prepared.
Amend the plans in exhibit A, if necessary, to comply with the 'General Advice to Council' provided in the BFSA.
The metric length of the boundaries of the site in all the site plans in exhibit A appear to be inconsistent with the imperial dimensions shown on the LPI Title Search (exhibit C, appendix volume). The dimension shown on the site plans for the eastern and western boundaries are the same (260.39m), yet the boundaries are significantly different in length. Any incorrect dimensions on the site plans are to be corrected.
The plans of the caretaker's accommodation and refuge building (exhibit A, A001 - 5) are to be amended to show RLs of each level, as well as RLs for the pathway at the landing of the western stair, driveway and car parking. There is an awkward arrangement with the head height clearance along the deck under the stair on the south-western corner and the access to the accessible tent from the carpark around that stair is clumsy. The stairs are not drawn accurately on the southern elevation. The shallow pitch of the skillion roof falls to the north on the roof plan (exhibit A, A003) but curiously the roof in elevation is shown on the southern elevation (exhibit A, A005) and not on the northern elevation (exhibit A, A004) as it should be. A section through the building north-south is to be provided and a maximum RL nominated for the ridge of the skillion roof. The errors are to be corrected.
While not an aspect of the proposal that is determinative in the appeal, the spatial planning of the caretaker's accommodation and refuge building is unnecessarily awkward; for example, the external entry to the caretaker's accommodation on the ground level is very constrained as it will require a person opening the door from the inside to stand on the lower treads of the stair; the conflict between the entry door and the internal door to the evacuation garage is a function of poorly resolved planning; the odd arrangement of bathrooms on the first floor has two internal bathrooms without access to natural ventilation and light which is undesirable; there is no cue in the planning of the building to the location of the guest reception on the first floor and no cue to discourage guests to continue along the landing to the private quarters of the caretaker.
The kitchen and dining tent is to be relocated further away from the riparian zone, ideally 10m, if it can be done without removing additional hollow bearing trees. Dr Robertson is to adjust the position of the kitchen and dining tent to minimise any impact on existing hollow bearing trees and the riparian zone and this is to be shown on an amended site plan.
The proposed layouts of the kitchen and dining tent and guest tents are to be shown on the plans at a scale of 1:100.
The parties are to resolve by agreement the issue raised by contention 4, particular vii, regarding the location of the compost room and this is to be shown on the documentation.
The parties are to agree on a suitable form of technology, such as a satellite telephone, to be maintained on site at all times and this requirement is to be imposed by condition and noted in section 11 of the Bush Fire Evacuation Plan.
The PoM dated February 2017 (exhibit U) is to be amended as follows:
To be consistent with the findings of this judgment;
To list the each management plan referred to as part of the consent;
To augment the Lighting policy to be consistent with the evidence of Dr Korbel;
To augment the No-noise policy to minimising disruptions to nocturnal fauna, consistent with the evidence of Drs Korbel and Robertson;
To include a policy regarding the use of low phosphorus soaps consistent with the evidence of Mr Chapman.
A Weed Management Plan (WMP) for the ongoing weeding of the site, particularly the EECs, is to be prepared in accordance with the advice of an appropriately qualified ecologist and is to include sufficient site specific detail to ensure that the ongoing weeding of the EECs can be successfully implemented and managed. The WMP can be attached or included in the PoM.
The amended plans are to be given updated revision numbers and a full set of consistent documents, including plans and all management plans, are to be filed and served. Copies of the amended plans and the plans of management relating to the proposal are to be filed with the Court in pdf or word format. A timetable for the provision of the documentation is to be provided by the applicant no later than 18 April 2017.

The Council is include the following in the conditions of consent:

A condition listing the documentation to which consent is given including each management plan (PoM, Bushfire Evacuation Plan, Erosion and Sediment Control Plan, etc) relating to the proposal.
As the tree number tags have been removed, a condition requiring the trees to be retagged and recounted prior to work commencing on the site to ensure that the maximum number possible of existing hollow bearing trees are retained on site. The Corymbia costata (T881) is to be retained.
A condition requiring a watching brief for an appropriately qualified ecologist to be present on site during the removal of vegetation and construction works, to ensure that the removal of trees is carried out according to the consent, to appropriately relocate any salvaged wildlife and to ensure the 'Ecological impact mitigation measures' in the PoM are complied with.
A condition requiring that the removal of trees to form the IPA is to be achieved in stages using hand held machinery and the pruning of trees.
A condition requiring the maximum possible retention of trees that contribute to soil stability, as follows, "A suitably qualified and accredited soil erosion and sediment control expert is to assess each individual tree within the IPA for its contribution to soil stability prior to its removal and if it is assessed that the tree contributes to soil stability, an alternative tree is to be removed wherever possible. If it is assessed that a tree that contributes to soil stability is to be removed, an appropriate soil stability control method is to be implemented."
A condition requiring a functioning satellite telephone or equivalent to be maintained by the Manager on-site at all times.
A condition ensuring that occupation of the caretaker's accommodation is only permitted when the recreation camp/eco-tourist accommodation is in operation.
A condition requiring the operation of the proposal to be conditional on legal access to the site. If a licence for vehicular access to the site, granted by NPWS, is revoked, the recreation camp/eco-tourist accommodation is not permitted to operate.
A condition requiring the manager of the recreation camp/eco-tourist accommodation to lodge with Council, annually at the commencement of the fire season each September, certification, provided by a suitably qualified person, demonstrating compliance with the requirements to maintain the IPA and FRA. If the certification is not lodged with Council, the recreation camp/eco-tourist accommodation is not permitted to operate.
The agreed conditions of the engineering experts in exhibit 16 are to be included in the conditions.

Final orders will be made in chambers. The applicant has a maximum of three calendar months until 30 June 2017 to comply with these directions.

Susan O'Neill Commissioner of the Court

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (25 paragraphs)

Parties

Cases Cited (3)

Cited By (2)