Saffioti v Kiama Municipal Council

Land and Environment Court (NSW)|2018-05-11

The Applicant's submissions on derogation

Ms Pearman, for the Applicant, submitted that any provision or standard within KLEP or KDCP which had the effect of either prohibiting the proposed development, because of the nature of the control, or which presented a control that could not be met by the Applicant, would represent a backdoor approach to refusal and so should be viewed as derogating from the Applicant's existing use rights.
Ms Pearman further submitted that any such provision of KLEP or KDCP should have no force or effect in relation to the current application before the Court while the incorporated provisions remain in force.
In support of this submission, Ms Pearman asked that the Court consider the judgment of Pain J in Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 (referred to hereafter as simply Stromness, or the Stromness decision) in relation to the controls set down in an LEP and how these might derogate from the existing use rights of an Applicant. Ms Pearman said (Tcpt 11 May 2018 p 57 (21 to 30)) that: So how would it be seen to derogate, then? It would derogate if effectively, you're going through the back door to get to a refusal. Now, that is something that Payne J (sic) refers to in the Stromness decision at para 96. She says that issue two in the proceedings there had regard to the question of bulk and scale of the building, and on the wider surrounding area, and she said the particulars in the statement of issue specify the applicable height and floor space ratios under the LEP, but these cannot be applied as a basis for refusal. To the extent, therefore, this issue requires the building to be considered in its context, that context cannot be a backdoor method by which to apply development standards in the LEP to the proposed development.

The Respondent's submissions on derogation

Mr Nash, for the Respondent, submitted that none of the relevant provisions of KLEP derogate from the Applicant's existing use rights in accordance with the provisions of s 4.67(3) because they do not prevent the Applicant from making a development application in relation to her proposed development on the Subject Site.
He further submitted that no provision within KLEP could be said to either prohibit the proposed development on the basis of the nature of the control, nor would they serve to present a control that could not be met by the Applicant. He concluded, therefore, that no standard within KLEP represented a backdoor approach to refusal of the proposed development in this appeal.
Mr Nash drew the Court's attention to the review of existing use rights decisions by the Court undertaken by Sheahan J in his judgment in the matter of oOh! Media Assets Pty Ltd v Council of the City of Sydney [2016] NSWLEC 47 (referred to hereafter simply as the first oOh! Media decision). This judgment disposed of an appeal, under s 56A of the LEC Act, in relation to a judgment of then Acting Senior Commissioner, Brown ASC, in the case of oOh! Media Assets Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1269 (referred to hereafter simply as the second oOh! Media decision).
Mr Nash said that his submission on the correct application of s 4.67, and his interpretation of the derogation of exiting use rights, was consistent with the findings of Sheahan J in the first oOh! Media decision, and in which he had endorsed the conclusions of Brown ASC in his judgment in the second oOh! Media decision.
The cases before Sheahan J and Brown ASC concerned an application for construction of a new sign structure to replace an existing sign on a building, and in relation to which the Acting Senior Commissioner had determined enjoyed existing use rights.
In the case heard by Brown ASC, the findings in which were upheld by Sheahan J, the Acting Senior Commissioner had found (at [31]) that: it follows that any derogation must relate to the existing use and not the making of a development application. If a development application can be made there is no derogation when the controls that apply to the development application pursuant to [a] s79C assessment are applied.
The Respondent submitted that based on the findings of Sheahan J in the first oOh! Media decision, which binds me, the Court, having accepted that the Applicant's proposal for the construction of a new dwelling is entitled to existing use rights, must undertake an assessment of the proposed development in line with the requirements of s 4.15C of the EP&A Act, including those controls currently applying, consistent with what Brown ASC has determined was the 'correct approach'.
Further, the Respondent also submitted that the s 4.15C assessment to be undertaken in this matter should be on the basis of the proposed development's compliance with the currently applying controls and not on the basis of a comparison between the impacts of the proposed development with the impacts of replacing the exiting dwelling in its exiting location. In this regard he drew attention to the further conclusion of Brown ASC (at [35]) that: The proposition that the assessment of any impacts should be addressed as an exercise in assessing the difference in impacts between the existing sign and the proposed sign must be rejected.
Mr Nash noted that this would be relevant in my consideration of the compliance or otherwise of the proposed development with the provisions of cl 6.4 of KLEP, concerning terrestrial biodiversity, and the approach adopted by the Applicant's expert in its assessment of these provisions (see below at [103] to [105]).
Finally, Mr Nash submitted that no provision of KDCP could be said to derogate from the Applicant's exiting use rights in the manner prescribed in s 4.67(3) of the EP&A Act as a development control plan (DCP) is not an environmental planning instrument (EPI) for the purposes of that Act, wherein an EPI is defined (see s 1.4 (formerly s 4) of the EP&A Act) in the following terms: environmental planning instrument means an environmental planning instrument (including a SEPP, LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force.
In relation to the judgement of the Commissioner in the Connoisseur case, discussed above at [59], Mr Nash submitted that because a DCP is not an EPI for the purposes of the EP&A Act, and contrary to the statement of the Commissioner in that case, the provisions of a DCP cannot derogate the Applicant's existing use rights in the manner envisaged under the provisions of s 4.67(3) of the EP&A Act.
Mr Nash drew the Court's attention to the fact that the Commissioner in the Connoisseur case made no reference to the findings of Sheahan J in the first oOh! Media decision, which would have been binding on her, as they are on me in this appeal, and which may have assisted in clarifying the intent of the Commissioner's statement (at paragraph [3] of the judgment) in Connoisseur.

Further submissions of the Applicant

Ms Pearman further drew to the Court's attention, certain additional issues that had been considered by Pain J in her judgment in Stromness (see above at [58]) that she considered pertinent to the Court's consideration of issues in the current appeal.
In particular Ms Pearman said, in relation to the judgment of Pain J, (Tcpt 11 May 2018 p 56 (41 to 44)): Then she states at 82, "In the absence…town planning principles." The inference there is that her Honour is saying that one sets aside the LEP requirements and DCP requirements that would derogate but one does a s 79C MERIT assessment. That is to be accepted. But quite clearly in terms her Honour has had regard to not only an LEP but also a DCP. I want to make that distinction here because, in my submission, it is important that a judge of this Court, alongside Sheahan J, has had regard to the question of the sort of controls which should apply and her Honour is of the view that one effectively sets asides any LEP or DCP provisions which would have the effect of derogating..
Ms Pearman went on to say (Tcpt 11 May 2018 p 57 (1-19)), and referring to the decisions of Sheahan J and Brown ASC discussed above at [62] to [68], that: It would seem, Commissioner, that that is not the approach taken by Commissioner Brown in his para 35. We know in the oOh!media case that para 138 I think it is, is the one that my friend took you to - 158, where his Honour said "No issue arises…criticised paragraph 35." We know in the para 35 that what Commissioner Brown said was that "Any s 79C assessment…the correct approach." In other words, all the LEP controls and presumably any DCP controls as well. That was Commissioner Brown's view. We know that [in] oOh!media, Sheahan J agreed with that approach but here you've got two judges of the Court who are saying different things. We have a decision by Sheahan J. He does reference the Stromness decision but says nothing about the fact that Pain J has seen fit to set aside the LEP and DCP controls, which would have the effect of derogating, doesn't address that. So you have two decisions sitting side by side, and now you have a decision of the Court also of, true it is a Commissioner, but it is the Senior Commissioner now who has looked squarely at this question of certainly the DCP controls in her para 3 of the Connoisseur decision, and she is quite clearly of the view that any LEP or DCP controls which would seem to derogate must be set aside.

My considerations of the Parties' Submissions on Derogation

In the current appeal, the decision of Molesworth AJ (see above at [10] and [12] confirmed the existing use rights available to the Applicant, setting aside the prohibition that otherwise would apply to a proposal for a dwelling house on land zoned E2 under KLEP. A consequence of this is that the Applicant's appeal against the Respondent's refusal of her development application for the proposed development within land zoned E2, is able to proceed as an existing use of the Subject Site.
In his decision in the first oOh! Media case, Sheahan J provided an extensive review of the relevant case law concerning existing use rights and the so-called correct approach that should be taken with respect to applying the provisions of s 4.67(3) of the EP&A Act, and the basis for a subsequent assessment under s 4.15C of the EPA Act of an application relying on existing use rights.
In this regard, His Honour endorsed the conclusions of Brown ASC ion the second oOh! Media case, that, in relation to the new sign structure proposed in his matter: I accept that the existing use rights are limited to the use of the structure, that is for displaying signage rather than the structure itself. This has a significant impact on the assessment of the impacts of the proposed sign. In accepting that the signage, rather than the sign structure, has existing use rights, the general approach of the council experts that any s79C assessment must be made on the sign is a new structure and subject to the currently applying controls is the correct approach…
Having considered the submissions of Parties, I concur with the submission of the Respondent that the findings of Sheahan J do bind me, and, based on this, the Court, having accepted that the Applicant's proposal for the construction of a new dwelling is entitled to existing use rights, must undertake an assessment of the proposed development in line with the requirements of s 4.15C of the EP&A Act as described at [66].
I have also reviewed the decision of Pain J in Stromness, in which Her Honour says (at [96]): The particulars of the statement of issues specify the applicable height and floor space ratio under the LEP but these cannot be applied as a basis for refusal.
Her Honour's reasons for deciding that these specific controls could not be used as a basis for refusal are then provided in her following paragraph [97] in which she states: 97 While I agree with Mr Ingham that the proposal would be prominent in the location as is the current residential flat building and appear to be somewhat bulkier due to the flat roof across the whole building footprint compared to the existing structure with the double storey gable roof, I consider the Applicant has confined the proposal largely within the footprint of the two buildings it is replacing. That is clear from the plans and the comparison table provided in the Applicant's submissions. Given that it is an application to rebuild, it is appropriate to be mindful of what is intended to be replaced by the rebuilding. If Mr Ingham's view that one storey should be removed is adopted, then I consider that his assessment is a de facto application of the height limits for this zone in the LEP and it is clear that s 108(3) does not allow that approach.
In this paragraph, Pain J said that '[g]iven that it is an application to rebuild, it is appropriate to be mindful of what is intended to be replaced by the rebuilding'. Her Honour also stated that 'the Applicant has confined the proposal largely within the footprint of the two buildings it is replacing'.
Based on these statements, I conclude that Her Honour decided in this matter that the specific floor space ratio and building height controls within the relevant LEP could not be a basis for refusal as they would derogate the Applicant's existing use right to replace a building with a particular bulk and scale with a building of similar bulk and scale.
Having considered the conclusions of Sheahan J and Pain J in their judgments, and mindful of particular characteristics of the proposed development that is the subject of this appeal, I have concluded that: 1. The specific circumstances of the proposed development in Stromness, where the Applicant's existing use rights were relied upon to support the replacement a building with a particular bulk and scale with a building of similar bulk and scale, do not arise in this case. Consequently, the specific consideration of Pain J that led her to conclude that the applicable height and floor space ratio under the LEP could not be applied as a basis for refusal, are unlikely to arise in the current appeal. I note, in particular, that, unlike the circumstances in Stomness, the bulk and scale of the proposed development in this appeal differs significantly from the bulk and scale of the existing dwelling on the Subject Site that the Applicant now it seeks to replace. 2. In contrast, the findings of Sheahan J, supporting the decision of Brown ASC, in the two oOh! Media cases, are of direct relevance to my considerations in this appeal. This is particularly so, given that the specific circumstances considered by Pain J in Stromness (see above at [(1)], do not arise in this appeal.
Unless the circumstances of Stromness had been shown to exist in this appeal (and as noted above at [83(2)] it my assessment they have not been so demonstrated), then the approach endorsed by Sheahan J, as identified by Brown ASC, as the 'correct approach' in the second oOh! Media case should be followed in this appeal in undertaking the assessment of the proposed development in line with the requirements of s 4.15C(1) of the EP&A Act.
Finally, having reflected on the Commissioner's statement in her judgment in Connoisseur (see above at [59]), and having considered the submissions of the Parties, I have concluded that: 1. I concur with the Commissioner's statement in Connoisseur that the provisions of a LEP and DCP 'remain still relevant as part of the Court's merit assessment of the DA under s 79C [of] the EPA Act'. 2. I also concur with the Commissioner's position that, for developments founded on an existing use right, it follows that the provisions of the LEP which derogate from the incorporated provisions in the Regulations made under s 106(1) have no force or effect by reason of s 108(3);
I also agree with the submission of Mr Nash above at [70], that no provision of KDCP could be said to derogate from the Applicant's exiting use rights as a development control plan (DCP) is not an environmental planning instrument for the purposes of the EP&A Act, under s 1.4 of that Act, and so the provisions of a DCP cannot derogate in the manner prescribed in s 4.67(3).
Consequently, I cannot concur with the Commissioner's statement in Connoisseur (see above at [59]) that, for developments founded on an existing use right, it follows that the provisions of a DCP which derogate from the incorporated provisions in the Regulations made under the former s 106(1) have no force or effect by reason of the former s 108(3).
In relation to the Commissioner's statement (see above at [59]) that 'in other words the Council's planning controls cannot be used to restrict the proposed development', I would observe that this would seem to be odds with the statement of the Commissioner that follows immediately, which is to the effect that the controls 'remain still relevant as part of the Court's merit assessment of the DA under s 79C [of] the EPA Act'. It may be that the Commissioner's use of the word 'restrict' in this sentence had a specific intent in the context of that judgment. However, such an intent was not able to be discerned by me in this instance. Consequently, I cannot rely on that element of the Commissioner's statement for guidance in the current appeal.
In conclusion, and having considered the submissions of the Parties, including their submissions in respect of various judgments of this Court, I favour the approach of Brown ASC, endorsed within the findings of Sheahan J, in the two oOh! Media cases, as the basis for applying of s 4.67(3) of the EP&A Act, and for the reasons provided above at [78]. That is that the preferred approach to my assessment of the proposed development in this appeal, in terms of the provisions of s 4.15C(1) of the EP&A Act, should be subject to the currently applying controls in KLEP. This is in the context of my conclusion at [85(2)], that any provisions of KLEP which derogate from the incorporated provisions in the Regulations have no force or effect.
Based on the above, I will next give specific consideration as to whether there are provisions of KLEP that would derogate from the existing use rights of the Applicant in relation to the proposed development. I will then move on to consider those provisions of KLEP against which the proposed development should be assessed in terms of the requirements of s 4.15C(1) of the EP&A Act.
I do not need to give consideration to whether any provisions of KDCP derogate the existing use rights of the Applicant, on the basis of my conclusions above at [86].

Do any provisions of KLEP derogate from the Applicant's existing use rights?

The provisions of KLEP that are of relevance in the current appeal were identified above at [22] to [36].
As discussed at [47] it had been agreed that certain matters that had been in contention between the Parties concerning cl 5.9 of KLEP should, where necessary, be addressed through the Court's consideration of the provisions of cl 6.4 of KLEP.
The Parties also agreed (see [45]) that the provisions of cll 6.2 and 6.3 of KLEP had been satisfactorily addressed by the Applicant, and were no longer pressed by the Respondent.
In relation to the remaining provisions of KLEP identified as being of relevance in this appeal, my considerations, reasons and conclusions in relation to whether they derogate from the existing use rights of the Applicant are as follows: 1. In relation to cl 2.3, which includes zone objectives and land use table, I have reviewed the provisions of the clause, including its objectives, and I have concluded that none of the provisions of this clause derogate the Applicant's existing use rights, based on the following considerations. 1. The Parties made submissions during the hearing with respect to the extent to which the objectives of the E2 zone (see above at [25]) derogate from the Applicant's existing use rights. 2. Ms Pearman, for the Applicant, submitted that the second of those objectives derogated from the Applicant's existing use rights as it might preclude approval of the proposed development. 3. In reply, Mr Nash for the Respondent said that none of the objectives of the zone derogated those rights because they did not preclude the making, and assessment, of a development application in this case. He added that the requirements of cl 2.3 were such that, while the consent authority must 'have regard to the objectives', this did not serve to provide a prohibition to the Applicant's proposed development. 4. During the hearing the following exchange was recorded in the transcript (Tcpt 11 May 2018 p 29 (38 to 44)): COMMISSIONER: Just to be clear about it, you also say, do you not, that there's not a requirement as well for the proposal to be consistent with the objectives … just that the objectives need to be given due regard in relation to the proposed development. So whilst he [Mr Mahedy - the Applicant's expert planner] says they're not consistent with the objectives, consistency in your argument isn't required. NASH: It's firstly not required - absolutely correct, with respect - and secondly in our submission it's quite a damning admission on his part because even if the test was one of consistency, he says it's not consistent which is quite, we would say, a strong indicator as to the site's suitability of the chosen location. 1. Having considered the submissions of the Parties, I favour the submission of the Respondent on this matter for two reasons: 1. I concur with Mr Nash's submission, on behalf of the Respondent, that while the Court is required to have regard to the objectives of the zone, this does not impose a standard that would, of its nature, serve to prohibit the proposed development; 2. having had regard to the objectives of cl 2.3, and mindful of the decision of Molesworth AJ in relation to the separate question (see above at [12]), I have concluded that that decision overcomes any possible issues of derogation in relation to this clause of KLEP. Further, and consistent with this, I do not rely on any provision of cl 2.3 as a basis for refusal of the Applicant's development proposal. 1. Clause 6.2 of KLEP provides objectives and standards (see above at [36(2)]) with respect to proposed earthworks, and provides the circumstances in which development consent is not required for earthworks that form part of a development application. 2. Clause 6.3 of KLEP provides objectives and standards (see above at [36(2)]) with respect to proposed earthworks, and provides circumstances in which a consent authority must not grant consent. 3. As discussed above at [45], the Parties advised at the commencement of the hearing that, based on the provision of additional plans and information by the Applicant, the Respondent no longer pressed contentions in relation to cll 6.2 and 6.3. 4. Clause 6.4 of KLEP sets out objectives and provisions with respect to terrestrial biodiversity (see above at [36(4)]. The clause applies to land identified as 'biodiversity land' on the Terrestrial Biodiversity Map in KLEP. The area within the Subject Site on which the proposed development would be located, and which is zoned E2, is 'biodiversity land'. My considerations and conclusions in relation to the standards within this clause are as follows: 1. Under the provisions of this clause, the consent authority is required under cl 6.4(3) to consider whether a development is likely to have impacts as described in subcll (a), (b) and (d) or will have the impacts described in subcl (c). 2. In my assessment there is nothing in the objectives of cl 6.4, nor under the requirements of cl 6.4(3), that would derogate from the existing use rights of the Applicant as none of these provisions serves to prohibit the Applicant's proposed development. 3. Under the provisions of, cl 6.4(4), a consent authority must not grant consent to a development unless it is satisfied that the proposed development satisfies the provisions of one of either subcll (a), or (b) or (c) to avoid, minimise or mitigate any significant adverse impacts arising from the proposed development in respect of terrestrial biodiversity. 4. In my assessment, nothing in these subclauses serves to prohibit the proposed development. Rather, these subclauses require that a proposed development comply with their provisions, and they offer three pathways to compliance, through avoidance, minimisation or mitigation of adverse environmental impacts on terrestrial biodiversity. As none of these provisions serve to prohibit the proposed development, I conclude that they do not derogate from the Applicant's existing use rights. 5. Notwithstanding my finding above at [b] or [d], and consistent with approach to assessment identified by Brown ASC at [76] in the second oOh! Media case, I conclude that the provisions of cl 6.4 of KLEP do provide a basis for the assessment of the application as required under the provisions of s 4.15C(1) of the EP&A Act. 6. In summary, I conclude, that nothing within the clause objectives, nor provisions requiring development consent in relation terrestrial biodiversity, derogates from the Applicant's existing use rights. 1. Clause 6.5 of KLEP provides objectives and standards (see above at [36(5)]) with respect to riparian land and watercourses. My considerations and conclusions in relation to the standards within this clause are as follows: 1. Under the provisions of this clause, the consent authority is required under cl 6.5(3) to consider whether a development is likely to have impacts as described in the subclauses (a) and (b) of this clause. 2. In my assessment, nothing in these subclauses would serve to prohibit the proposed development and so none of the provisions would serve to derogate the Applicant's existing use rights. 3. Under the provisions of, cl 6.5(4), a consent authority must not grant consent to a development unless it is satisfied that the proposed development satisfies the provisions of one of either subcll (a), or (b) or (c) to avoid, minimise or mitigate any significant adverse impacts arising from the proposed development in respect of riparian land and watercourses. 4. In my assessment, nothing in these subclauses would serve to prohibit the proposed development and so none of the provisions would serve to derogate the Applicant's existing use rights. 5. Notwithstanding my finding above [b] or [d], and consistent with approach to assessment identified by Brown ASC at [76] in the second oOh! Media case, I conclude that the provision of cl 6.5 of KLEP do provide a basis for assessment of the application under the provisions of s 4.15C(1) of the EP&A Act. 6. In summary, I conclude, that nothing within the clause objectives, nor the provisions requiring development consent in relation riparian land and watercourses, derogates from the Applicant's existing use rights.
Based on the above, I conclude that: 1. None of the provisions of the clauses of KLEP that are relevant to the Applicant's proposed development in this appeal derogate from her existing use rights; 2. The provisions of clauses 6.4 and 6.5 of KLEP provide a basis for assessment of the application under the provisions of s 4.15C(1)(a) of the EP&A Act, consistent with approach to assessment identified by Brown ASC at [76] in the second oOh! Media case.
I will now turn to the assessment of the proposed development under the requirements of s 4.15C(1) of the EP&A Act, and specifically an assessment of the compliance of the proposed development with the provisions of clauses 6.4 and 6.5 of KLEP, and with the relevant controls in KDCP.

Are the potential impacts of the proposed development acceptable in terms of the standards set down in KLEP, specifically those in clauses 6.4 (Terrestrial biodiversity), and 6.5 (Riparian land and watercourses)?

Is the proposed development compliant with the provisions of clause 6.4 of KLEP?

Clause 6.4 is concerned with the maintenance of terrestrial biodiversity. Its objectives are provided above at [36(4)], and as discussed at [95(5)(d)], I have concluded that nothing in the clause, including its objectives, derogates from the existing use rights of the Applicant.
The clause applies to land that is mapped as biodiversity land on the Terrestrial Biodiversity Map in KLEP. As confirmed above at [6], the portion of the Subject Site on which the proposed development would be located is zoned E2 Environmental management, and is biodiversity land as per its definition in KLEP.
Under the provisions of cl 6.4(3): Before determining a development application for development on land to which this clause applies, the consent authority must consider whether or not the development: (a) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, (b) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, (c) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (d) is likely to have any adverse impact on the habitat elements providing connectivity on the land.
Evidence in relation to the potential impacts of the proposed development on terrestrial biodiversity was provided at the hearing through the written testimony of Mr Matthew Misdale, for the Applicant, and Dr Anne Clements, for the Respondent.
The individual evidence of Mr Misdale was contained in the following documents, which were tendered as evidence during the hearing: 1. A flora and fauna assessment dated 4 May 2016, which assessed the flora and fauna impacts of the proposed dwelling and associated Asset Protection Zones (APZs), and which concluded that: 1. it would result in: 1. the permanent and ongoing modification of vegetation within the APZ, including 0.05Ha of Illawarra Subtropical Rainforest Endangered Ecological Community (EEC), in low to medium condition, and 0.8Ha of warm temperate layered forest, in low to medium condition; 2. the removal of trees for the proposed building footprint, aged between 10 and 20 years, and including nine red cedars and 11 Maiden's Wattle trees; 3. the removal of one sassafras, one red ash and one scrub turpentine tree with a canopy loss of less than 0.01Ha and modification of low condition groundcover across an area of 0.1Ha; 1. the relatively minor scale of direct and indirect impacts was unlikely to result in a significant adverse impact to any threatened species, populations or communities listed under either the Environmental Protection Biodiversity Conservation Act 1999 (EPBC Act) and Threatened Species Conservation Act 1995 (now repealed) (TSC Act); 2. a species impact statement is not required in relation to the impact of the proposed development on Illawarra Subtropical Rainforest EEC. 1. An addendum to the flora and fauna report, dated 18 January 2018, which provided a further assessment of the proposed development in relation to the upgrading of the unsealed access track to the proposed dwelling, the installation of a 7m x 4m causeway across the creek crossing, the installation of electricity and telephone services, and the installation of a waste water treatment system. This assessment concluded that: 1. it would result in: 1. the removal of five trees along the proposed access route edge within vegetation mapped as Illawarra Subtropical Rainforest EEC; 2. the removal of 0.1Ha of Illawarra Subtropical Rainforest EEC in high condition; 3. the removal of 0.07Ha of Illawarra Subtropical Rainforest EEC in low condition; 4. the removal of 0.02Ha modified vegetation groundcover in low condition; 5. the removal of 0.01Ha modified vegetation groundcover in moderate condition; 6. overall, the removal of 0.16Ha of Illawarra Subtropical Rainforest EEC. 1. the installation of the causeway spanning the creek line would not significantly disrupt flow within the creek channel or change the creek such as to reduce habitat quality within the riparian zone that would adversely impact threatened or commonly occurring watercourse biota; 2. the electricity and telephone service lines would be installed within the road reserve boundaries and would therefore not result in any additional adverse impacts on native vegetation; 3. the installation of the wastewater treatment system within an area of modified vegetation would not require the removal of any native trees but would result permanent modification of 180m² of low condition native groundcover currently managed by regular slashing; 4. the impact of the construction of the proposed access road, causeway, wastewater treatment system and telephone/electricity services would be unlikely to result in any significant adverse impact on biota listed under the TSC Act or the Fisheries Management Act 1994 (FM Act), beyond those described and assessed in the initial Biosis assessment discussed above at [(1)]. 1. A response to issues raised by Kiama Council in relation to flora and fauna, dated 13 February 2018, which concluded that: 1. revised site plans provided by PRM Architects in early 2018 require the removal of 13 trees to construct the access road to the proposed dwelling which represented an increase from the five trees assessed by Biosis as requiring removal in its report of 12 January 2018 (see above at [(2)]; 2. all other impacts arising from the proposed development had been identified and were consistent with previous reports prepared by Biosis. 1. Additional ecological responses in relation to KLEP and vegetation management, dated 6 March 2018, and which provided additional assessments of the proposed development in relation to updated bushfire protection proposals, increasing the proposed APZ inner protection area (IPA) by 6m to the west, 10m to the east and 16m to the south, along with an updated causeway access design and a construction methodology. In relation to the provisions of cl 6.4 of KLEP, the report concluded that: 1. proposed APZs would result in the following impacts on vegetation: 1. the permanent modification of 554m² of the EEC in low to moderate condition to maintain an IPA; 2. the permanent modification of 426m² of EEC in low to moderate condition to maintain an outer protection zone (OPA); 3. the permanent modification of 551m² of warm temperate layered forest in low condition to maintain an IPA; 4. the permanent modification of 35m² of warm temperate layered forest in low condition to maintain an OPA; 5. the permanent modification of 25m² of warm temperate layered forest in moderate condition to maintain an IPA; 6. the permanent modification of 1725m² of warm temperate layered forest in moderate condition to maintain an OPA; 7. continued management by groundcover slashing of 7035m² of modified vegetation (warm temperate layered forest) as outer and inner protection areas; 8. the continued management by groundcover slashing of 1200m² of modified vegetation (warm temperate layered forest) in low condition as an IPA; 9. the permanent modification by annual slashing of a 5 buffer adjacent to the proposed access road covering 1183m² of high condition groundcover and 819m² of low to moderate condition groundcover; 10. the removal of branches larger than 150mm diameter, and deadwood to be retained from the trunk or major branch division to provide for future hollow formation; 1. that these additional impacts are unlikely to increase the amount of edge or land area such as to increase weed incursion, provided recommended weed management protocols were maintained; 2. the proposals would not result in ecological fragmentation of the EEC nor in the reduction in condition that would give rise to a significant adverse impact to the local occurrence of EEC; 3. the study area did not contain limiting habitat for threatened fauna listed under the TSC Act, and there would be no significant adverse impacts on the breeding or important roosting habitat or habitat connectivity for species that may use the study area; 4. the proposed development was consistent with the provisions of cl 6.4 of KLEP. 1. Additional ecological responses, in relation to KLEP and vegetation management, dated 8 March 2018, which confirmed the above outcomes of assessments undertaken by Mr Misdale on behalf of Biosis, in line with the requirements of the expert witness code of conduct contained in the Uniform Civil Procedures Rules 2005.
As noted earlier in relation to my consideration of the decisions of Brown ASC in the second oOh! Media case (see above at [67]), the Respondent had submitted that any s 4.15C assessment to be undertaken in this appeal should be undertaken on the basis of the proposed development's compliance with the currently applying controls, and not on the basis of a comparison between the impacts of the proposed development with the impacts of replacing the exiting dwelling in its exiting location.
I have considered the submission of the Respondent at [67], and I concur with it.
Consequently, in relation to the comparison approach adopted in part by Mr Misdale in his written evidence, and to the extent that he has relied on a fact, or made comment, that the assessments of impacts on terrestrial biodiversity should be based on a comparison of the proposed development with impacts that may arise should a development have been undertaken at the location of the existing dwelling on the Subject Site, such evidence has not been given weight by me in my assessment of the impacts of the proposed development.
Further evidence of Mr Misdale, together with the evidence of Dr Clements, was provided in a joint report of the ecology experts, tendered as evidence at the hearing.
This included evidence that: 1. the ecology experts agreed that the Applicant had undertaken significant vegetation management works on the Subject Site to remove the invasive species Lantana camara, which is a 'listed weed of national significance' under Australian, Queensland and New South Wales legislation; 2. the experts disagreed as to whether the management approach adopted by the applicant for control of Lantana camara was the best method for control of this plant over time and in the circumstances presented on the Subject Site; 3. the experts disagreed as to the extent of the Subject Site containing vegetation that matched the Scientific Committee's determination for the EEC 'Illawarra Subtropical Rainforest of the Sydney Basin Bioregion'; 1. Dr Clements was of the opinion (see joint report of the ecology experts p20) that: The entire property appears to be Illawarra Subtropical rainforest as defined in the final determination for the listed EEC, except in the location of the existing house and surrounding area. 1. Mr Misdale disagreed with this assessment and noted that (see joint report of the ecology experts p21): Eucalyptus dominant forest zones were also mapped by Biosis (2016). Modified vegetation occurs between eucalyptus dominant forest designs and adjacent areas of surrounding low-moderate condition rainforest. Therefore there is potential for both vegetation types to occur within the modified area. 1. Following a detailed review of the mapping of various vegetation units on the Subject Site, Mr Misdale concluded (joint report of the ecology experts p22) that: Based in (sic) these outcomes the modified vegetation could be considered to be more closely associated with eucalypt forest than rainforest. 1. the experts disagreed in relation to the extent of vegetation impacts arising from the construction of the access road to the proposed dwelling. 1. Dr Clements noted that the number of trees proposed to be removed and which would thus be directly impacted by the proposed access road were stated to be 11 in the amended statement of facts and contentions, while engineering plans prepared on behalf of the Applicant indicated a 12 trees would be removed, including a single specimen of Rhodamnia rubescens, a species for which the New South Wales scientific committee had made a preliminary determination for listing as critically endangered species (joint report of the ecology experts p29) 2. Mr Misdale said that while the engineering drawings included all plants to be removed, some of those plants did not, in his opinion, qualify as 'trees' by reason of their size or height. He had noted that the most recent assessments of the impact on vegetation arising from the proposed access road had been provided by Biosis in its 2018 report, discussed above at [102(3)],and referred to in the joint report of the ecology experts as (2018b). He stated that this report had confirmed that nine trees were proposed for removal and that additional 'tree removal' represented on drawings represented sapling-sized examples of Sassafras that were too small to be classified as trees. Mr Misdale added that there were no examples of Rhodamnia rubescens proposed for removal in order to accommodate the construction of the proposed access road. 1. the experts also disagreed on the impact on vegetation of the proposed dwelling and associated APZ's, as follows: 1. Dr Clements noted: 1. that the location of the proposed dwelling used within the Biosis reports, and assumed by the bushfire expert for assessment of APZ requirements, differed from the position of the proposed dwelling as provided in the plans produced by the Applicant's architect (joint report of the ecology experts at p10). She said that this had been illustrated within Figure 1d of the joint report of the ecology experts. This figure is reproduced below. 2. later in the joint report (joint report of the ecology experts at p31) that the difference in location of the proposed dwelling as depicted in the Biosis reports, and as reflected in the bushfire expert's assessment report, in comparison to its location of the Applicant's architect drawings, was in the region of 20m. Dr Clements also made reference Figure 1d of the joint report (reproduced below) as the basis for this statement. 3. the dimensions the APZs recommended by the bushfire expert, based on the location of the proposed dwelling on the architect's plans, extended into an area of tall eucalypts and may extend into an area of land adjoining the Subject Site that was not owned by the Applicant. 4. the area of vegetation to be directly affected by the dwelling house and APZs is 1 Ha with a further 0.5Ha of vegetation affected by indirect impacts (joint report of the ecology experts at p31). 1. 2. Mr Misdale, in response to Dr Clements' statement above at [5(a)(ii)], had commented that: Biosis locations are derived from uncorrected handheld GPS waypoints of existing survey peg locations. An error of 3-5m is expected and is adequate for defining vegetation boundaries. Bushfire consultants overlay based on mapping supplied by Biosis. 1. Mr Misdale, acknowledged at several points in the joint report of the ecology experts, by explicit reference to Figure 1d in that joint report, that he was aware of Dr Clements' conclusion in relation to the accuracy of mapping of the location of the proposed dwelling and its implications for the assessment of vegetation impacts and location of APZs required for bushfire management. 2. However, while acknowledging that variations in the mapping of the location of the house and vegetation boundaries were likely to have arisen due to the mapping methodology that he had adopted (see above at [(b)]), Mr Misdale did not directly challenge the conclusion of Dr Clements in the joint report that the location of the dwelling was 20m different to that provided in the architect's drawings, despite it being evident that he was aware of this difference and Dr Clements' conclusions based thereon. 3. Mr Misdale stated (see joint report of the ecology experts at p36) that variations in the house location, would not, in his opinion, significantly change his assessment the impacts of the proposed development on vegetation.
These issues of the consistency and completeness of the assessment of the potential impacts of the proposed development on native vegetation by Biosis were raised by Mr Elliott and Mr Mahedy in their expert testimony in joint report of the planning experts. However, I have not accorded weight to these comments in the assessment ecological impacts of the proposed development.
I have considered the testimony of the ecology experts as provided in their individual and joint reports, and I am satisfied that: 1. as acknowledged by Mr Misdale in the joint report (joint report of the ecology experts at p36), variations had occurred over time in the Applicant's assessment of impacts of the proposed development on native vegetation, in respect of the access road, associated facilities, the dwelling house, and related APZs; 2. the scale and nature of the impacts of the proposed development on native vegetation within the Subject Site remain a point of difference (both quantitatively and qualitatively) between the ecology experts; 3. consistent with the evidence of the ecology experts, the location of the proposed dwelling and associated asset protection zones in the mapping used for the assessment of native vegetation impacts was not consistent with the location of the proposed dwelling as represented in the Applicant's architectural plans; 4. the difference in the mapped location of the dwelling discussed above at [(3)] was some 20m (as contended by Dr Clements), or around 3-5m (as contended by Mr Misdale); 5. the scale of these mapping errors, while a point of disagreement between the experts, is such that they introduce an uncertainty as to the scale and nature of the proposed development's impacts on native vegetation.
Based on the above, I accept the evidence of Dr Clements that the outcomes of the assessment of the proposed development's potential impacts on native vegetation may be different to those concluded by Mr Misdale, and that these impacts may include potential impacts on native vegetation that may be located on land that is not in the ownership of the Applicant.
As a consequence of these points, including the evidence discussed above in relation to the differences in the location of the proposed dwelling as represented in the plans used by the Applicant's ecology and bushfire experts in their assessments of impacts, and the plans produced by the Applicant's architect, and having considered whether or not the development would have any adverse impacts (as per cl 6.4(3) of KLEP) on terrestrial biodiversity, I am not able to be satisfied, as I am required to be under the provisions of cl 6.4(4) of KLEP, 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.
Having reviewed the joint report of the ecology experts, it is evident to me that the Applicant's expert had a full understanding of the evidence of Dr Clements in that report, and had had adequate opportunity to bring forward within the joint report any evidence to support different conclusions to those of Dr Clements.
It was also evident from the joint report of the ecology experts that the Applicant's expert had seen all relevant evidence concerning the differences in the mapping of the location of the proposed development as presented in Figure 1d of that joint report, and had had an opportunity to challenge that mapping. However, the veracity of that mapping remained unchallenged by Mr Misdale.
In a closing submission during the hearing, Ms Pearman, for the Applicant, raised a potential concern in relation to procedural fairness in the context of the rule of Browne v Dunn (Browne v Dunn (1893) 6 R 67). In particular, Ms Pearman noted that the joint report of the ecology experts had been filed with the Court four working days prior to the commencement of the hearing, and she submitted that the time available to review the report prior to the hearing had constrained consideration of the evidence by the Parties. This submission was not made nor supported by the Respondent.
I have reflected on this point in the preparation of this judgment, and consider that the timing of production of the joint report was adequate to enable the Parties to have equal and reasonable time for its review prior to the start of the hearing in this appeal.
Taken together with my findings at [112] and [113] in relation the opportunity for the ecology experts to understand and provide comment on, and if necessary to refute, evidence in the joint report, I do not consider that any concerns of procedural fairness have arisen in terms of the rule of Brown v Dunn.

Is the proposed development compliant with the standards set down in cl 6.5 of KLEP?

The provisions of cl6.5 of KLEP are provided above at [36(5)]. It was the agreed position of the Parties that the proposed development was located within 20m of the top of bank of a category 2 watercourse. The Respondent submitted, and for reasons provided above at [78], I concur, that the provisions of this clause do not derogate from the Applicant's existing use rights, and, as required under cl 6.5(2)(b)(ii), the proposed development is subject to the merit assessment provisions of cl 6.5, including the following: (3) Before determining a development application to carry out development on land to which this clause applies, the consent authority must consider whether or not the development: (a) is likely to have any adverse impact on the following: (i) the water quality and flows within the watercourse, (ii) aquatic and riparian species, habitats and ecosystems of the watercourse, (iii) the stability of the bed and banks of the watercourse, (iv) the free passage of fish and other aquatic organisms within or along the watercourse, (v) any future rehabilitation of the watercourse and its riparian areas, and (b) is likely to increase water extraction from the watercourse. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
In relation to the requirements of cl 6.5(3)(b), neither Party submitted that the proposed development is likely to increase water extraction from the watercourse , and I am satisfied, that the proposed development is unlikely to increase water extraction from the category 2 watercourse.
The potential impacts of the proposed development in relation to the provisions of cl 6.5(3)(a) were the subject of testimony from Mr Misdale within the Biosis report of 6 March 2018, discussed above at [102(4)] in relation to impacts of vegetation.
In that report, it was Mr Misdale's testimony: 1. in relation to the provisions of cl 6.5(3)(a)(i), that while the proposed development would have the potential to impact the water quality and flows within the watercourse during and after construction works, this potential impact would be managed and avoided. He said that this would be achieved through undertaking the works in accordance with a sediment control plan, design features that include 'rip rap', appropriate batters and sediment control fencing to reduce turbidity; 2. in relation to the provisions of cl 6.5(3)(a)(ii), that while the proposed access route would reduce the area of available habitat within the watercourse by a very small amount (less than 30m2), that area of habitat is not considered limiting to any species (flora or fauna) within the locality. He concluded that the likelihood of an adverse 'effect' to riparian or aquatic ecosystems was very low. 3. in relation to the provisions of cl 6.5(3)(a)(iv), that the habitat within the watercourse is not considered appropriate for fish, or for larger aquatic organisms dependent on permanent flowing waters. The access design includes pipe culverts which will not limit fauna movement, nor require semiaquatic organisms to deviate into terrestrial environments when using the habitat watercourse. 4. in relation to the provisions of cl 6.5(3)(a)(v), that areas of the watercourse to be modified for access will not require dredging to install the convert. Materials excavated from the informal access will be reused to reshape the upstream and downstream grades. Vegetation within 20m of proposed access or development will be managed to control weeds that may establish during or after construction activities. This will include the control of woody weeds and blackberry that may limit or restrict connectivity for fauna or cause a reduction in condition for the ecological communities.
Mr Misdale's evidence did not address the requirements of cl 6.5(3)(a)(iii) in relation to the stability of the bed and banks of the watercourse.
As discussed above at [45], the engineering experts, Mr Bond and Mr Brady, in their joint report had stated that they had reviewed the engineering drawings for the design of the proposed watercourse crossing.
The engineering experts had agreed in their joint report that the engineering designs, together with the hydraulic report, satisfactorily addressed the requirements of cl 6.2 of KLEP in relation to earthworks.
The objectives of cl.6.2 of KLEP include the following: (a) to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring useless, cultural or heritage items or features of the surrounding land.
The engineering experts were satisfied that, inter alia, the design and hydraulic assessment of the proposed watercourse crossing was consistent with the proposed development achieving the objectives of cl 6.2.
Given that it is the proposed watercourse crossing which would have the potential to generate any adverse impacts on the watercourse, and given that the expert engineers have confirmed in relation to clause 6.2 of KLEP that the proposed earthworks would not have a detrimental effect on environmental functions and processes, I am satisfied that the requirements of cl 6.5(3)(a)(iii) with respect to the stability of the bed and banks of the watercourse have been satisfactorily addressed by the Applicant.
As a consequence of my consideration of the above points at [120] to [126], I am satisfied that the provisions of cl 6.5(4) have been met by the Applicant, and that the development is designed, sited and will be managed to avoid any significant adverse environmental impact on the watercourse, consistent with the provisions of cl 6.5(4)(a) of KLEP.

Are the potential impacts of the proposed development acceptable in terms of the standards set down in KDCP?

As discussed above at [91], I have concluded that the requirements of KDCP do not derogate from the Applicant's existing use rights, but rather serve as a basis for a merits assessment of the proposed development as required under s 4.15C(1)(c) of the EP&A Act.
The relevant controls within KDCP against which the proposed development should be assessed, including the applicability of their objectives and controls were identified above at [43], and all fall within Chapter 6 of KDCP concerning Rural Development.
In considering the application of the controls in KDCP, I am mindful of the requirements of s 4.15C(3A) of the EP&A Act (see [17]) whereby: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application.
These controls in KDCP are now addressed in sequence.

KDCP Section 1 - Design and siting controls for rural dwellings/alterations

In relation to control C7, which is: Rural dwellings and ancillary development must be designed and sited to protect agricultural land; avoid/minimise their impact on the natural environment and the scenic landscape; and be clustered rather than dispersed over the property 1. I have concluded that the proposed dwelling and ancillary development is designed and sited to protect agricultural land, avoids impacts on scenic landscapes and is clustered rather than dispersed over the property. 2. However, I am unable to be satisfied that the dwelling and ancillary development are designed and sited to avoid/minimise their impact on the natural environment based on the findings I have made in relation to cl 6.4 of KLEP (see above at [111]. 3. Further, the discrepancy as to the accuracy of the mapped location of the proposed dwelling, and the implications of this for the assessment of vegetation impacts of the proposed development, including those arising from assessment of APZ requirements, means that it is not possible for me to assess whether the proposed development is sited to avoid/minimise impacts on the natural environment, notably vegetation, including the Illawarra Subtropical Rainforest EEC community. 4. As required by s 4.15C(3A) of the EP&A Act, I have considered whether in applying control C7 the applicant's proposed development can achieve the objects of that control. However, the nature of the non-achievement of the control is based on the uncertainty and inconsistency of the Applicant's assessment of impacts, and, as a consequence, it is not possible for the proposed development to achieve the objectives of the control without the removal of that uncertainty and inconsistency. That is not possible based upon the evidence before the Court in this appeal.
In relation to control C10, which is: Thorough site analysis is required to inform site planning and design to achieve satisfactory agricultural, environmental, natural hazard risk minimisation and rural amenity outcomes consistent with the aims and objectives of this Policy. 1. I have concluded the control's requirement for a thorough site analysis to achieve satisfactory environmental risk minimisation has not been achieved, based on my findings in relation to cl6.4 of KLEP, and control C7 above at [132]. 2. As required by s 4.15C(3A) of the EP&A Act, I have considered whether in applying flexibility to control C10 the applicant's proposed development can achieve the objects of that control. For the same reasons as identified above at [132] in relation to control C7, and I have concluded that it is not possible that the Applicant's proposal can achieve the objectives of control C10 without the removal of that uncertainty and inconsistency. That is not possible based on the evidence before the Court in this appeal.
In relation to control C11, which is: Any existing dwelling that is replaced by a new dwelling must be demolished before the new dwelling is occupied unless consent is granted for that dwelling to be used for another purpose. 1. The existing dwelling is proposed to be decommissioned, rather than demolished. However, the Parties agreed that a proposed decommissioning plan tendered in evidence by the Applicant was acceptable in terms of the future use of the structure. 2. Consequently, I have concluded that the proposed development is consistent with the requirements of control C11.
In relation to controls C12, C13 and C14, which are: C12 Ancillary development should also be where possible and practicable clustered around the principal dwelling, or able to utilise the same accessways. C13 Ancillary development will need to be landscaped to mitigate visual impact visible from a public place. C14 Secondary dwelling must be located to minimise visual impact and the loss of agricultural land and taking into consideration: • Clustering with other buildings. • Sites with low visual impact. • Preference being given to sites with lower agricultural value. • Sites should not require removal of vegetation. • Preference is given to sites where land take for driveways is minimal. 1. I have concluded that the requirements of these controls are met by the proposed development because: 1. the ancillary development is clustered around the proposed dwelling, and is able to utilise the same access route; 2. the ancillary development would not be visible from a public place; 3. there is no secondary dwelling proposed as part of the proposed development.

KDCP Section 3 - Access and services infrastructure

In relation to controls C21 and C22, which are: C21 Except as required to meet bush fire safety requirements in the particular circumstances of the land, only one access road to a lot or land holding is permitted to be connected to a public road. This does not apply to access to paddocks. C22 Access to a lot or landholding must only be provided from a public road or a legal right of way that is connected to a public road. 1. I have concluded that the requirements of these controls are met by the proposed development because: 1. the proposed development includes only one access road connected to a public road; 2. access to Subject Site is provided from a public road or a legal right of way connected to a public road, that public road being Thompson Road.
In relation to controls C25, which is: The location and design must also avoid, minimise or otherwise mitigate any adverse environmental impact on: • land containing biodiversity/native vegetation as identified in Kiama LEP 2011 or other Council vegetation maps. • land containing any endangered ecological communities. 1. I have concluded that the requirements of this control are not met by the proposed development because: 1. consistent with my findings above in relation to controls C7 (see above at [132]), and C10 (See above at [133]), 1. I am unable to be satisfied that the dwelling and ancillary development are designed and sited to avoid/minimise their impact on the natural environment, including on native vegetation, based on the findings I have made in relation to cl 6.4 of KLEP (see above at [111]; 2. the discrepancy as to the accuracy of the mapped location of the proposed dwelling, and the implications of this for the assessment of vegetation impacts of the proposed development, including those arising from assessment of APZ requirements, means that it is not possible for me to be satisfied that the proposed development is sited to avoid/minimise impacts on the natural environment, notably vegetation, including the Illawarra Subtropical Rainforest EEC community. 1. As required by s 4.15C(3A) of the EP& A Act, I have considered whether in applying flexibility to control C25 the applicant's proposed development can achieve the objects of that control. For the same reasons as identified above at [132] and [133] in relation to control C7 and C10 respectively, I have concluded that it is not possible that the Applicant's proposal can achieve the objectives of control C25 without the removal of that uncertainty and inconsistency. That is not possible based on the evidence before the Court in this appeal.
In relation to controls C26 and 27, which are: C26 An access road must be designed in accordance with this Council's Engineering technical specifications to minimise visual impact and earthworks. C27 An access road or any fire trails to a dwelling on a lot or associated with a subdivision containing bush fire prone land must comply with all relevant NSW Rural Fire Services' requirements. 1. I have concluded that the requirements of these controls are met by the proposed development because: 1. in relation to C26, and as discussed above at [45], the Respondent has accepted that the design of the proposed access road, including the design of the watercourse crossing, was acceptable in terms of it engineering standards and the management of potential impacts arising from earthworks associated with its construction. The engineering experts in their joint report had specifically confirmed this in relation to the proposed water course crossing. They had also confirmed the proposed development's compliance with the provisions of cl 6.2 of KLEP concerning earthworks; 2. in relation to C27, the Parties agreed that, based on communications with the NSW Rural Fire Service, including recommended conditions of consent for the proposed development in relation to access and APZs, the proposed development met the requirements of the RFS with respect to the proposed development.
In relation to controls C28 and 29, which are C28 A soil, water and vegetation management plan must be provided with the development application. Such plan must demonstrate how access road, services infrastructure construction works and revegetation of disturbed land will be managed in the construction and post construction rehabilitation phases to minimise soil erosion, pollution of waterways and to ensure the survival of any required revegetation to maturity. C29 Revegetation associated with an access road must be addressed in a property landscape plan accompanying the DA. 1. I have concluded that the requirements of these controls are not met by the proposed development because: 1. In relation to C28, the evidence before me does not include a development application accompanied by a soil, water and vegetation management plan as required by C28. The evidence of Mr Misdale, within the joint report of the ecology experts, includes a recommendation that a comprehensive vegetation management plan (VMP) be prepared to provide construction controls and on-going management specifications for the proposed dwelling, access road, and associated APZs. This confirmed to my satisfaction that a vegetation management plan had not been prepared for provision with the development application. 2. In relation to C29, the evidence before me does not include a development application accompanied by a property landscape plan. 1. As required by s 4.15C(3A) of the EP&A Act, I have considered whether in applying flexibility to controls C28 and C29 the applicant's proposed development can achieve the objects of that control. 2. It was the Applicant's proposal, reflecting the testimony of Mr Misdale in the joint report, that a vegetation management plan be prepared as a condition of consent for the proposed development. Further, draft conditions of consent, tendered as evidence at the hearing, included deferred commencement conditions that required the preparation of a vegetation management plan, a riparian assessment report and a property landscape plan for the proposed development. 3. Based on the facts presented above at [(3)], I have concluded that the inclusion of deferred commencement conditions requiring preparation of the plans identified in response to the requirements of C28 and C29 is a reasonable alternative that would achieve the objects of the standards in C28 and C29. 4. Consequently, I also conclude that the Applicant's non-compliance with controls C28 and C29 is not a reason for refusal of the proposed development.
In relation to controls C30 and C33, which are C30 Applicants must demonstrate how power supply will be provided to the proposed development. On isolated sites or sites that are difficult to service because of physical or environmental constraints, alternative sources of power such as solar energy must be adopted. Details of the proposed method of power supply must accompany a Development Application. C33 Transmission lines and communications infrastructure must be located so that they do not require clearing of native vegetation. They must be located and designed to minimises their visibility on the landscape setting in the locality if they will be visible from a public place. Their location adjacent to an access road is generally preferred to minimise visual impact and loss of native vegetation and to facilitate maintenance. 1. I have concluded that the requirements of these controls are met by the proposed development because: 1. in relation to C30, the Applicant has provided sufficient details of the proposed means of supplying power to the proposed development, through the provision of a power supply that would be located underground and within the corridor of the proposed access road. 2. In relation to C33, the Applicant's proposal that power and communication would be positioned with the proposed access road corridor is consistent with the requirements of control C33.

KDCP Section 6 - Controls for water supply and Rural Fire Service

In relation to controls C44 and C45, which are: C44 A Water Cycle Management Study must be prepared by an appropriately qualified professional and submitted with the development application. This plan must take into account disposal of all waste water generated by dwellings and ancillary development, and be able to accommodate peak usage times. C45 The Water Cycle Management Study must include the following components: A clear outline of the proposed development, including a detailed site plan which includes site constraints, A summary of the water quality control measures proposed as part of the development and their location, A statement, based on the information in the Water Cycle Management Study, as to whether the development has a neutral or beneficial effect on water quality, consistent with the SCA's Neutral or Beneficial Effect on Water Quality. The method of treating and disposing of waste water effluent must be determined having regard all criteria in Chapter 2 must be met. 1. the Applicant has tendered as evidence at the hearing, a report dated 27 November 2017 from Harris Environmental Consulting entitled 'Soil and site assessment for on-site wastewater disposal'. In my assessment, this report has fulfilled the requirements of controls C44 and C45 in all respects other than in relation to the requirement of C45 that it must contain a statement, based on the information in the Water Cycle Management Study, as to whether the development has a neutral or beneficial effect on water quality, consistent with the SCA's Neutral or Beneficial Effect on Water Quality. 2. I have concluded that the omission of a statement as to whether the development has a neutral or beneficial effect on water quality, consistent with the SCA's Neutral or Beneficial Effect on Water Quality, could be addressed through the addition of a deferred condition of consent for the proposed development, should the Applicant's appeal be upheld.

KDCP Section 8 - Environmental considerations

In relation to controls C46, which is C46 Dwellings and ancillary development must be located as far away as possible from stands of native vegetation to protect biodiversity and threatened species and their habitat, and reduce bush fire risk. 1. I have concluded that the proposed development does not meet the requirements of this control because, 1. consistent with my findings above in relation to controls C7 (see above at [132]), C10 (see above at [133]), and C25 (see above at [137]): 1. I am unable to be satisfied that the dwelling and ancillary development are designed and sited to avoid/minimise their impact on the natural environment, including on native vegetation, based on the findings I have made in relation to cl 6.4 of KLEP (see above at [111]). 2. the discrepancy as to the accuracy of the mapped location of the proposed dwelling, and the implications of this for the assessment of vegetation impacts of the proposed development, including those arising from assessment of APZ requirements, means that it is not possible for me to be satisfied that the proposed development is sited to avoid/minimise impacts on the natural environment, notably vegetation, including the Illawarra Subtropical Rainforest EEC community. 1. As required by s 4.15C(3A) of the EP& A Act, I have considered whether in applying flexibility to control C46 the applicant's proposed development can achieve the objects of that control. The objects of that control are: • To protect, maintain and enhance native vegetation/biodiversity, endangered ecological communities, natural ecosystems, and riparian and wildlife corridors. • To protect rare and threatened species and their habitats. • To protect waterways, water quality and drinking water catchments from polluting land use or development activities. • To protect the natural and scenic cultural landscape. 1. For the same reasons as identified above at [(1)(a)] in relation to control C7, C10 and C25, I have concluded that it is not possible that the Applicant's proposal can achieve the objectives of control C46 without the removal of that uncertainty and inconsistency. That is not possible based on the evidence before the Court in this appeal.
In relation to control C47, which is C47 Clearing native vegetation to provide a building envelope in a subdivision in line with clauses contained in chapter 7, or provide access, or provide bush fire Asset Protection Zones (APZ) will not be permitted if cleared areas already exist on the land that would satisfy these purposes without significantly compromising other environmental attributes of the land and the aims and objectives of this chapter. 1. I have concluded that this control is not applicable to the proposed development as the development application does not propose subdivision of the Subject Site, which is the subject of Chapter 7 of KDCP.
In relation to control C48, which is C48 If development cannot be carried out without clearing native vegetation, an ecological assessment report (prepared by a person with appropriately qualified consultant) must be submitted to: • identify the amount and type of native vegetation proposed to be removed, identify any endangered ecological communities affected by the clearing of native vegetation. • justify why that native vegetation or an endangered ecological community should be removed. • explain what alternatives were considered to clearing of native vegetation or endangered ecological communities and why those alternatives are not justifiable or practical alternatives [Note: Cost will not be considered to be an acceptable reason]. • identify what native species of native wildlife, threatened species and native wildlife habitat and natural ecosystems will be affected. 1. I have concluded that the proposed development does not meet the requirements of this control because: 1. consistent with my findings above in relation to controls C7, C10, C25 and C46: 1. I am unable to be satisfied that the Applicant has reliably identified the amount and type of native vegetation proposed to be removed, nor has the Applicant identified the extent of Illawarra Subtropical vegetation EEC that would be affected by the clearing of native vegetation for the proposed development. In this regard I rely on my findings in relation to cl 6.4 of KLEP (see above at [ ]. 2. the discrepancy as to the accuracy of the mapped location of the proposed dwelling, and the implications of this for the assessment of vegetation impacts of the proposed development, including those arising from assessment of APZ requirements, means that it is not possible for me to be satisfied that the proposed development is sited to avoid/minimise impacts on the natural environment, notably vegetation, including the Illawarra Subtropical Rainforest EEC community. 1. notwithstanding the disagreements between the ecology experts in relation to the mapping of vegetation communities on the Subject Site, there is an agreement between the experts that to a greater or lesser extent, an area of Illawarra Subtropical Rainforest EEC and other native vegetation will be cleared for the proposed development. 2. while the Applicant has sought to quantify the impact of the proposed development in terms of native vegetation clearing, this assessment has not examined what alternatives were considered to avoid the proposed clearing, most notably in terms alternative designs of the proposed dwelling that may have avoided some or all of the proposed clearing of native vegetation or EEC and why those alternatives are not justifiable or practical alternatives. 3. the absence of a consideration of alternatives within the Applicant's development application hinders, in my assessment, the Applicant's basis for establishing a justification as to why particular areas of native vegetation, including areas of Illawarra Tropical Rainforest EEC, are proposed for removal. The following points concerning the Applicant's rationale for selection of the proposed development's preferred location on the Subject Site are, in my view, pertinent to this specific point: 1. The Applicant's expert planner, Mr Mahedy, (referred to in the transcript of the proceedings as Mr Mahati) submitted within the joint report of the planning experts (at p13, para 2.2.3.19) that part of the reason why the design of the proposed development had been chosen was due to the current lifestyle expectations of a family rural homestead. 2. However, Mr Nash for the Respondent said (Tcpt 11 May 2018 p33 (33-37)): … but we know from Davies v Penrith City Council, a decision of then Senior Commissioner Moore, that personal preferences and expectations are not relevant to a MERIT assessment and so, to the extent that Mr Mahiti (sic) trespasses into that area, we would say that's not something that would be relevant to the Court's MERIT assessment 1. In this passage Mr Nash was referring to the case of Davies v Penrith City Council [2013] NSWLEC 1141 (hereafter referred to simply as Davies) in which Moore SC (as he was then) reflected on a planning principle established by Roseth SC in the case of Pafburn v North Sydney Council [2005] NSWLEC 444. This principle concerned criteria that should be applied for assessing impact on neighbouring properties, and in which the then Senior Commissioner had addressed the issues of necessity and reasonableness in assessing the impacts of a proposed development. 2. The Senior Commissioner in Davies had refined one element of the planning principle, whereby a criteria that asked 'how necessary and/or reasonable is the proposal causing the impact?' was replaced by one that asked 'how reasonable is the proposal causing the impact?' 3. This refinement removed consideration of the 'necessity' of a proposal from a merits assessment of a proposed development's impacts, and confirmed that the merits assessment should focus on whether the proposal causing an impact was 'reasonable'. The then Senior Commissioner went on to say (at [120]): Development consents run with the land and proposals for consent are to be assessed in that light rather than by consideration of what might be 'necessary' for any present or proposed occupants or beneficiaries of any consent. 1. In the present case, Mr Nash proposed, through his submission above at (ii), that the so-called 'current lifestyle expectations' of the Applicant are the Applicant's expression of what it views as 'necessary', and does not equate to what might be viewed as 'reasonable' in terms of the views expressed by then Senior Commissioner in Davies. 2. In my view, a question requiring resolution in these proceedings in relation to control C48 is whether the Applicant's ecological assessment report has explained what alternatives were considered to the proposed clearing of native vegetation, including clearing of the Illawarra Subtropical Rainforest EEC, and why those alternatives are not justifiable or practical alternatives. I must also consider whether, based on assessments undertaken, the Applicant has justified why the certain areas of native vegetation, including some areas of an EEC, should be removed. 3. Having considered the submission of Mr Nash for the Respondent on this point, I have concluded that, to the extent that Mr Mahedy's rationale for the design of the proposed development is the Applicant's justification for the removal of native vegetation this is not a justification provided within the ecological assessment report as required by the control. I have also concluded that it does not provide a basis for explaining what alternatives may have been considered in relation to determining the why approval should be granted for the area of native vegetation including EEC to be removed. 4. I also observe that, whether the design of the proposed development is a based upon the current lifestyle expectations of the Applicant, necessary or otherwise, this does not assist me to establish what might be reasonable in the circumstances of this appeal, and so does not assist me to assess the impacts arising from a proposed development in a manner that the then Senior Commissioner posited could be a helpful basis for assessment of the proposed development. 1. As required by s 4.15C(3A) of the EP& A Act, I have considered whether in applying flexibility to control C48 the Applicant's proposed development can achieve the objects of that control. For the same reasons as identified above at [132] and [133] in relation to control C7 and C10 respectively, I have concluded that it is not possible that the Applicant's proposal can achieve the objectives of control C48 without the removal of that uncertainty and inconsistency. That is not possible based on the evidence before the Court in this appeal.
In relation to controls C54, C55 and C56, which are: C54 Riparian land affected by proposed development must be protected and improved through any development. C55 A property landscape plan (PLP) must be submitted with a development application for the erection of a dwelling house, secondary dwelling, ancillary development, access road, services infrastructure, fencing or works where the proposed development will require: • clearing of native vegetation. • revegetation or planting of screening vegetation for land stabilisation. • visual impact mitigation purposes. • biodiversity offsets to maintain and improve biodiversity. NOTE: Native vegetation cannot be removed unless approval is given under the Native Vegetation Act administered by the Southern Rivers Catchment Management Authority. C56 The property landscape plan must: • clearly identify strategically important existing and proposed vegetation aimed at screening development to ensure it will be enduring through time and able to be clearly identified by condition(s) of development consent. • include measures to ensure such vegetation will be maintained and replaced over time if this becomes necessary due to damage, natural death or failure to survive due to human intervention or natural causes. • maximise the use of local endemic species of plants. • indicate how the visual impact of any access road and services infrastructure and fencing on the landscape will be mitigated by planting of vegetation. • must not rely on landscaping and planting alone to be used as an alternative to improved siting options which use the natural landscape and landform to screen or reduce the visibility of proposed development to public view. 1. I have concluded that the requirements of these controls are met by the proposed development because: 1. in relation to control C54, the outcome required in the control would be satisfied through the response of the expert engineers in relation to the design of the proposed watercourse crossing (see above at [45]), together with the completion of a property landscape plan and riparian assessment report, which I have found could be provided through the Applicant's fulfilment of a deferred commencement condition (see above at [139(3)]). 2. in relation to controls C55 and C56, the outcomes required in the controls would be satisfied through completion of a property landscape plan, which I have found could be provided through the Applicant's fulfilment of a deferred commencement condition (see above at [139(3)]).

KDCP Section 11 - Planning for adequate response to bushfires

In relation to controls C60 to C65, which are: C60 The erection of a dwelling on a lot containing bush fire prone land must: • be located on a lot so that it is less susceptible to a direct bush fire attack threat. • comply with bush fire protection measures and control standards in the NSW Rural Fire Services' publication Planning for Bushfire Protection, (including any revised editions or supplementary publications released by the NSW RFS). C61 A Bush Fire Assessment Report must be submitted with the statement of environmental effects. C62 Dwellings and ancillary development (including tourist accommodation) must be located as far as possible on cleared land to: minimise the bush fire risk, and avoid the need to clear native vegetation to reduce the risk of bush fire attack. C63 Where feasible, developments should provide for a perimeter road or reserve around the dwelling(s) and associated ancillary development to assist inner protection area management and bush fire fighting. C64 Provision must be made for access by bush fire fighting and other emergency services vehicles and where necessary, the ability for these vehicles and their emergency services officers and residents to be safely evacuated in the case of extreme bushfire threat. C65 In some locations, this may require providing an additional alternative means of access to the development in locations where a property is subject to a severe bush fire attack threat. This may also require the applicant/landowner negotiating alternative access arrangements over an adjoining property. 1. I have concluded that the requirements of these controls are met by the proposed development because as discussed above at [138] in relation to C27, the Parties have agreed that, based on communications with the NSW Rural Fire Service, including recommended conditions of consent for the proposed development in relation to access and APZs, the proposed development meets the requirements of the RFS with respect to the proposed development.

KDCP Section 12 - Flooding

In relation to controls C67 to C71, which are: C67 Where a development proposal requires access over a waterway; consideration must be given in the statement of environmental effects to: • any alternative development sites investigated that would avoid creek crossings. • explain why any such alternative options investigated were not considered preferable to the proposed site design requiring access across a waterway. C68 Where a waterway crossing is unavoidable, the level of any waterway crossing must provide a safe carriageway in low flood conditions (ie a 1 in 20 year recurrent flood level) and the engineering design of waterway crossings must accompany the development application. C69 Waterway crossings must be designed to have a negligible impact on the stream flow, riparian vegetation, water quality and fish movements. C70 Council may require: • the rehabilitation, maintenance and improvement of riparian land in the vicinity of a waterway crossing. • works to restore the natural form and functions of a waterway within the riparian corridor in the vicinity of a waterway crossing. C71 Any riparian land rehabilitation, improvement or maintenance must be addressed in the property landscape plan and the Biodiversity Offset Principles outlined in this chapter will apply where biodiversity offsets are involved. 1. I am satisfied that the requirements of these controls are met by the proposed development because: 1. based on my inspection of the Subject Site, I accept the Applicant's submission that there is no alternative access route that would avoid a creek crossing; 2. the proposed access route is the only feasible alternative for provision of access to the proposed development; and 3. the engineering experts in their joint report have agreed that the Applicant's design of the proposed watercourse crossing satisfies the requirements of C68, C69, C70, and C71.

KDCP Section 13 - Land stability and earthworks

In relation to controls C74 and 75, which are: C74 Council may require that a geotechnical report suitably qualified geotechnical consultant and submitted with development application for dwelling or ancillary development for habitable purposes. The geotechnical report must include: • Investigation of the stability and suitability of land identified within the identified building envelope for a dwelling and any ancillary habitable buildings. • Engineering and design recommendations required to maintain the stability of the development site and the structural safety of any habitable building proposed to be erected within the building envelope. C75 The design of earthworks associated with dwellings and ancillary development must: • minimise the extent of cut and fill to reduce the potential for land slip and visual impact on the landscape. • restrict excavation for a building to not more than 1 metre below ground level (existing). • restrict the height of any external retaining wall outside the walls of a building to not more than 1 metre above ground level (existing). • restrict the design of any batter to not more than a gradient of 1:4 (absolute) and preferably 1:6. 1. Council has not sought to require a geotechnical report for the purposes of this control and the Respondent's draft conditions of consent also do not require that the Applicant provide such a report. 2. The engineering experts in their joint report have agreed that the Applicant's design of the proposed watercourse crossing satisfies the requirements of several conditions, including C75 in relation to the watercourse crossing; 3. The Respondent's ecology expert, Dr Clements, stated within her evidence in the joint report of the ecology experts that: There is a high erosion risk, especially in areas of reduced soil cover from: • Expected high rainfall events based on nearby rainfall records; • Steepness of land required to be modified for the APZ; and • Limitation of soil landscape associated with steep slopes, (Limitation - mass movement hazard, rock fall hazard, extreme water erosion hazard, shallow soil, rock-outcrop, stoniness, low available water-holding capacity (topsoil), low wet bearing strength (subsoil) and sodicity. This erosion risk contributes to the potential for impacts, especially as the proposal includes the long-term reduction of vegetation cover on steep land. There were no observed examples on the site of long term vegetation reduction on steep land, except possibly south of Plot 1 where erosion is occurring. 1. Notwithstanding these comments, which, in relation to erosion and soil assessment were, in my opinion, outside Dr Clement's identified field of expertise, Council did not seek to challenge the design proposals for the proposed dwelling and ancillary works in relation to the requirements of control C75. Nor did Council provide expert engineering evidence that supported the statements of Dr Clements (see above at [3]). 2. Having considered the submissions of the Parties and the evidence before me, including the Applicant's design drawings for the proposed access road, and the joint report of the engineering experts, I am satisfied that requirements of this control are met by the Applicant's design for the proposed dwelling and ancillary works.

KDCP Section 14 - Riparian land

In relation to control C79, which is: C79 Development on or near to land identified as being riparian and in the Kiama LEP 2011 must ensure that it does any negative impact water quality, bank and bed stability, ecological processes and any habitats.
I am satisfied that the requirements of this control are met by the proposed development because: 1. as discussed above at [139], should the Applicant's appeal be upheld, the Applicant would be required, under deferred commencement conditions, to complete a series of assessments and management plans, including a riparian assessment report, and a property landscape plan, that would ensure that the proposed development would not give rise to negative impacts on water quality, bank and bed stability, ecological processes and any habitats; and 2. the engineering experts have agreed that the design of the proposed watercourse crossing satisfies the requirements cl 6.2 of KLEP concerning earthworks in the proximity to, inter alia, waterways on the Subject Site.

Finalisation of the assessment of the proposed development against the requirements of s 4.15C of the EP&A Act

The EP&A Act requires that, in addition to the above assessment of the Applicant's proposed development in terms of the provisions of s 4.15(1)(a) of the Act, a consent authority must take into consideration the following matters in determining a development application: 1. The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts on the locality (s 4.15(b) of the EP&A Act); 2. The suitability of the site for the development (s 4.15(c) of the EP&A Act); 3. Any submissions made in accordance with the EP&A Act or the Regulation (s 4.15(d) of the EP&A Act); 4. The public interest (s.4.15(e) of the EP&A Act).
These matters are considered in sequence, below.

The likely environmental impacts of the development

The likely environmental impacts of the proposed development have been assessed above through my assessment of the proposed development's compliance with the provisions of KLEP and KDCP (see above [98] to [150]).
In summary, the relevant conclusions of that assessment in relation to KLEP are: 1. in relation to cl 6.4 of KLEP concerning terrestrial biodiversity, 1. based on the evidence of the ecology experts, the proposed development is likely to have adverse environmental impacts on native vegetation, including on an EEC; 2. the scale and nature of those adverse impacts is uncertain as a consequence of discrepancies in mapping between that used for the assessment of ecology and bushfire impacts, and mapping of the proposed development by the Applicant's architect; 3. I am unable to be satisfied that the proposed development is designed, sited and will be managed to avoid, minimise or mitigate any significant adverse environmental impact; 4. I am unable to be satisfied that the proposed development is compliant with the provisions of cl 6.4 of KLEP. 1. the proposed development was assessed to be in compliance with all other provisions of KLEP, and is unlikely to give rise to adverse environmental impacts matters addressed in those provisions.
The relevant conclusions of the assessment in relation to the provisions of KDCP are: 1. The proposed development is compliant with the requirements of the following controls of KDCP: 1. Control C11, which concerns design and siting matters, for reasons provided at [134(1)] and [134(2)]; 2. Controls C12, C13, and C14, which concern the design and siting of ancillary developments and secondary dwellings, for reasons provided at [135(1)]; 3. Controls C21 and C22, which concern access and service infrastructure, for reasons provided at 136(1); 4. Controls C26 and C7, which also concern access and service infrastructure, for reasons provided at [138(1)]; 5. Controls C30 and C33, which concern access and service infrastructure, and specifically the provision of power supply and the location of transmission lines and communications infrastructure, for reasons provided at [140(1)]; 6. Controls C54, C55 and C56, which concern environmental considerations, specifically riparian land and the requirements for a property landscape plan, for reasons provided at [145(1)]; 7. Controls C60 to C65, which concern planning for bushfires, for reasons provide at [146(1)]; 8. Controls C61 to C71, which concern flooding, for reasons provided at [147(1)]; 9. Controls C74 and C75, which concern land stability and earthworks, for reasons provided between [148(1)] and 148(5); 10. Control C79, which concerns riparian land, for reasons provided at [150(1)] and [150(2)]. 1. notwithstanding that the proposed development does not meet the following controls in KDCP, it is able to demonstrate compliance through reasonable alternatives that achieve the objects of those controls, as follows: 1. Controls C29 and C29, which concern access and service infrastructure, and specifically, the management of soil, water and vegetation impacts, for reasons provided at [139(1)] to [139(5)]; 2. Controls C44 and C45, which concern water supply, for reasons provided at [141(1)] and [141(2)]; 1. it does not meet the requirements of following controls: 1. Control C7, which concerns the design and siting of the proposed development, specifically in relation to avoiding and minimising impacts on the natural environment, for reasons provided at [132(2)] to [132(4)]; 2. Controls C10, which concerns the design and siting of the proposed development, specifically in relation site analysis, for reasons provided at [133(1)] and [133(2)]; 3. Control C25, which concerns access and services infrastructure, specifically in relation to avoiding, minimising and mitigating adverse impacts land containing biodiversity/native vegetation and endangered ecological communities, for reasons provided at [137(1)]; 4. Control C46, which concerns environmental considerations, specifically in relation to the location of dwellings and ancillary development in relation to vegetation, for reasons provided at [142(1) to [142(3)]]; 5. Control C48, which concerns environmental considerations, specifically clearing of native vegetation, for reasons provided at [144(1)] to [144(1)(d)(ix)];
During the hearing, the Parties made no submissions in relation to adverse impacts that might arise from the proposed development in relation to the built environment, or in relation to potential social and economic impacts in the locality. I have concluded that the proposed development is unlikely to have any adverse impacts in relation to any of these factors and they should not be reasons for refusal of the Applicant's development application.

The suitability of the site for the development

Based on my findings above at [154(1)] and [155(3)] in relation to likely environmental impacts, and my specific finding at [144(1)] in relation to Control C48 concerning alternatives, I am unable to confirm the suitability of the site for the proposed development.

Submissions made in accordance with the EP&A Act

There were no submissions received in relation to the proposed development and, as noted above at [14], no objectors sought to make submissions to the Court in relation to this appeal.

The public interest

Based on the above, for reasons provided above at [154(1)] and [155(3) ] in relation to the environmental impacts of the Applicant's proposed development, and in relation to the suitability of the site for the development (see above at [157]), I have concluded that approval of the Applicant's proposed development is not in the public interest.

Conclusion

Based on the above considerations, I have concluded that:: 1. the controls that are relevant to my determination of this case are those controls in KLEP and KDCP identified at [36 ] and [38]; 2. as discussed at [96(1)], none of the provisions of the clauses of KLEP that are relevant to the proposed development in this appeal derogate from the Applicant's existing use rights; 3. as discussed at [91] and [94], the provisions of KDCP cannot derogate from the Applicant's existing use rights, because a DCP is not an environmental planning instrument for the purposes of the s 4.67(3) of the EP&A Act; 4. as discussed at [96(2)], the provisions of clauses 6.4 and 6.5 of KLEP provide a basis for assessment of the application under the provisions of s 4.15C(1)(a) of the EP&A Act, consistent with approach to assessment identified by Brown ASC at [76]
I have also concluded that: 1. I am not able to be satisfied, as I am required to be under the provisions of cl 6.4(4) that the development is designed, sited, and managed to avoid, minimise or mitigate any significant adverse impacts on terrestrial biodiversity, for reasons provided at [109], and as discussed at [111]; 2. I am satisfied that the provisions of cl 6.5(4) have been met by the Applicant, and that the development is designed, sited and will be managed to avoid any significant adverse environmental impact on the watercourse, consistent with the provisions of cl 6.5(4)(a) of KLEP. as discussed at [127], and for reasons provided at [120] to [126]; 3. I am satisfied that the proposed development is compliant with the following controls of KDCP: 1. Control C11, which concerns design and siting matters, for reasons provided at [134(1)] and [134(2)]; 2. Controls C12, C13, and C14, which concern the design and siting of ancillary developments and secondary dwellings, for reasons provided at [135(1)]; 3. Controls C21 and C22, which concern access and service infrastructure, for reasons provided at 136(1); 4. Controls C26 and C7, which also concern access and service infrastructure, for reasons provided at [138(1)]; 5. Controls C30 and C33, which concern access and service infrastructure, and specifically the provision of power supply and the location of transmission lines and communications infrastructure, for reasons provided at [140(1)]; 6. Controls C54, C55 and C56, which concern environmental considerations, specifically riparian land and the requirements for a property landscape plan, for reasons provided at [145(1)]; 7. Controls C60 to C65, which concern planning for bushfires, for reasons provide at [146(1)]; 8. Controls C61 to C71, which concern flooding, for reasons provided at [147(1)]; 9. Controls C74 and C75, which concern land stability and earthworks, for reasons provided between [148(1)] and 148(5); 10. Control C79, which concerns riparian land, for reasons provided at [150(1)] and [150(2)]. 1. I am satisfied that, applying the provisions of s 4.15C(3A) of the EP&A Act, the proposed development would achieve compliance with the following controls of KDCP through the adoption of reasonable alternatives that achieve the objects of those controls: 1. Controls C29 and C29, which concern access and service infrastructure, and specifically, the management of soil, water and vegetation impacts, for reasons provided at [139(1)] to [139(5)]; 2. Controls C44 and C45, which concern water supply, for reasons provided at [141(1)] and 141(2); 1. I am satisfied that Control C47, which concerns environmental considerations in the circumstance of a subdivision, is not applicable to the proposed development for reasons provided at [143(1)]; 2. I am not satisfied that the requirements of the following controls have been complied with by the proposed development, and notwithstanding the provisions of s 4.15C(3A) of the EP&A Act, I find that reasonable alternative solutions are not available that would achieve the objects of the control: 1. Control C7, which concerns the design and siting of the proposed development, specifically in relation to avoiding and minimising impacts on the natural environment, for reasons provided at [132(2)] to [132(4)]; 2. Controls C10, which concerns the design and siting of the proposed development, specifically in relation site analysis, for reasons provided at [133(1)] and [133(2)]; 3. Control C25, which concerns access and services infrastructure, specifically in relation to avoiding, minimising and mitigating adverse impacts land containing biodiversity/native vegetation and endangered ecological communities, for reasons provided at [137(1)]; 4. Control C46, which concerns environmental considerations, specifically in relation to the location of dwellings and ancillary development in relation to vegetation, for reasons provided at [142(1)] to [142(3)]; 5. Control C48, which concerns environmental considerations, specifically clearing of native vegetation, including requirements for consideration of alternatives, for reasons provided at [144(1)] to [144(1)(d)(ix)];
Based on the above conclusions at [161(1)] and [161(6)], along with my considerations at [157] in relation to site suitability, and at [159] in relation to public interest, I have determined that the Applicant's proposed development cannot be granted consent, and the development application DA10.2016.185 should be refused.

Orders

The Court orders that: 1. The Applicant is granted leave to rely on amended plans. 2. The appeal is dismissed. 3. Development application DA10.2016.185 for construction of a new dwelling, including a residence and garage, shed and guest sleeping pavilion, along with ancillary works, is determined by refusal. 4. The exhibits are returned with the exception of Exhibit 1. …………………………. Michael Chilcott Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2018

Background

COMMISSIONER: Connie Saffioti (the Applicant) has appealed the deemed refusal by Kiama Municipal Council (the Respondent) of her development application DA10.2016.185 for construction of a new dwelling, including a residence and garage, shed and guest sleeping pavilion, along with the upgrading of an access road, the provision of asset protection zones (APZs), a wastewater treatment facility, and power/communications services. Together these features comprise the Applicant's proposed development.
The proposed development would be located at 29 Thompson's Rd, Broughton Village, formally identified as Lot 117 in DP 751254 (the Subject Site). The Subject Site's location is illustrated in the figure below, which is reproduced from the joint report of the ecology experts (see below at [106]) tendered as evidence at the hearing.
The appeal is made pursuant to s 97(1) (now s 8.7(1)) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
The Subject Site is, for the greater part, zoned E2 Environmental Conservation under Kiama Local Environment Plan 2011 (KLEP). Small portions of the Subject Site are zoned RU2 Rural Landscape in its south-eastern corner and E3 in its north-east corner. A Crown road reservation bisects the Subject Site's southwest corner. These zonings are illustrated in the figure below, also reproduced from the joint report of the ecology experts (see below at [106]) which was tendered as evidence at the hearing.
The objectives and relevant land use provisions applicable to these zones are provided below at [25] to [33].
The proposed development would, for the greater part, be located on land that is zoned E2 Environmental Conservation, but it also includes an access road, with creek crossing, portions of which are proposed to be located on land zoned RU2 Rural Landscape.
The dwelling that forms part of the proposed development is described as a 'pavilion style' development, and would have a footprint of 644m2. This would include terraces, decks and courtyards. A proposed farm work shed/garage would have an additional footprint of 190m2.
The Applicant has proposed that the new dwelling would replace an existing dwelling on the Subject Site. That existing dwelling is proposed to be 'decommissioned' and used as an artist's studio. The existing dwelling has a footprint of 109m2, and is also situated as part of the Subject Site zoned E2.
Construction of a dwelling is prohibited on land zoned E2 under the provisions of KLEP, which is the applicable environmental planning instrument (see below at [28]) for the regulation of development on the Subject Site.
Prior to this matter coming before me, the application in this appeal was the subject of a hearing before Molesworth AJ on 8 February 2017 (Saffioti v Kiama Municipal Council [2017] NSWLEC 65) on a separate question as follows: Whether the proposed development for the purpose of a dwelling (Proposed Development) under Development Application no. 10.2016.185 is prohibited development on Lot 117 DP 751254 (Lot 117) known as 29 Thompsons Road, Broughton Village, under an E2 Environmental Conservation zone in Kiama Local Environmental Plan 2011 (KELP) or is permissible by reference to clause 42 of the Environmental Planning and Assessment Regulation 2000. Specifically, whether the proposed development involves an increase in the area or use made of Lot 117 for the existing use of a dwelling house on lot 117 that has been actually physically or lawfully used for the coming into force of KLEP.
In his judgement on this separate question, Molesworth AJ noted (at [10]), that: As the proposed new dwelling is a substantially larger structure than the existing dwelling and is proposed to be erected on a part of Lot 117 that is some considerable distance away from the existing dwelling site, it is not disputed that the existing use provisions (if operative) require that such development obtain prior development consent: ss 107 and 108 of the EPA Act and Pt 5 of the Regulation. The critical question is whether the proposed development falls within the ambit of the land subject to the existing use provisions. That is to say, do the existing use provisions allow development consent to be granted to the proposed development? This question arises because cl 42 of the Regulation restricts the privilege of enlarging, expanding or intensifying an existing use to "…the land on which the existing use was carried out immediately before the relevant date".
His Honour then found that, notwithstanding the provisions of KLEP with respect to land zoned E2, the proposed development benefits from existing use rights, and is therefore allowed, with development consent, under the provisions of cl 42 of the Environmental Planning and Assessment Regulation 2000 (the Regulation).
The appeal now comes back before the Court under s 34AA of the Land and Environment Court Act 1979 (the LEC Act), and, as a consequence, was the subject of a conciliation conference on 12 October 2017.
An inspection of the Subject Site was undertaken as part of the conciliation conference. No objectors sought to make submissions to the Court in relation to this appeal.
The Parties were unable to resolve the matters in contention between them during the conciliation phase of the proceedings, and so the conciliation process was terminated, and the matter was set down for hearing.

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