Shoalhaven City Council v Easter Developments Pty Limited

The legislative framework

1. The proposed development is "integrated development" under s 4.46 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) as, in order for the development to be carried out, a bush fire safety authority under s 100B of the Rural Fires Act 1997 (NSW) was required. Section 100B(3) requires a person to obtain a bush fire safety authority before developing bush fire prone land for a purpose referred to in s 100B(1), which includes "a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes". It was common ground that the land was bush fire prone land and the proposed development was a subdivision of that land which could lawfully be used for residential purposes.
2. Application for a bush fire safety authority is to be made to the Commissioner of the Rural Fire Service (RFS Commissioner) in accordance with the regulations (s 100B(4) of the Rural Fires Act). Clause 45 of the Rural Fires Regulation 2022 (NSW) requires an application for a bush fire safety authority to include, amongst other matters: "(b) an assessment of the extent to which the proposed development conforms with or deviates from Planning for Bush Fire Protection".
3. Before granting development consent to an application for consent to carry out integrated development, the consent authority must obtain from the relevant approval body (here, the RFS Commissioner) the general terms of any approval proposed to be granted by the approval body in relation to the development (s 4.47(2) of the EPA Act). If the approval body informs the consent authority of the general terms of any approval it proposes to grant, the consent granted by the consent authority must be consistent with those general terms of approval (s 4.47(3) of the EPA Act). If the approval body informs the consent authority it will not grant an approval, the consent authority must refuse consent to the application (s 4.47(4) of the EPA Act). If the approval body fails to inform the consent authority whether or not it will grant the approval, or of the general terms of approval, the consent authority may determine the development application and, if determined by granting consent, the approval body cannot refuse to grant approval to any application for approval in respect of the development and any approval granted by the approval body must not be inconsistent with the development consent (s 4.47(5)).
4. On an appeal against the consent authority's decision with respect to development, the Court may determine the appeal whether or not the consent authority has obtained general terms of approval from the relevant approval body, is not bound to refuse the application for development consent because the relevant approval body has decided not to grant a relevant approval or determine general terms of approval, and may grant development consent on conditions that are inconsistent with the general terms of approval from the approval body (s 8.14(4) of the EPA Act).
5. In the case of development that is integrated development by reason of a bush fire safety authority being required, the application for development consent under the EPA Act ought to include the information that an application for a bush fire safety authority must include. That logically follows from the operation of the integrated development provisions in s 4.46 to s 4.50 of the EPA Act. If the consent authority grants development consent to integrated development, the approval body (the RFS Commissioner in the case of a bush fire safety authority) must grant approval to any application for approval that is made within three years after the date on which development consent is granted (s 4.47(5)(b)(i) and s 4.50(1) of the EPA Act) and on conditions that are not inconsistent with the development consent (s 4.47(5)(b)(ii) and s 4.50(2)of the EPA Act).
6. In this case, the Commissioner, exercising the functions of the consent authority on appeal, granted development consent to the proposed integrated development. That decision on the appeal is taken to be the final decision of the consent authority and is to be given effect to accordingly (s 8.14(2) of the EPA Act). Hence, the RFS Commissioner would be obliged, if application were to be made for a bush fire safety approval, to grant that approval on conditions not inconsistent with the development consent granted by the Court. The RFS Commissioner could not refuse a bush fire safety authority on the basis that the proposed development deviated from the PBP. The decision of the Court foreclosed that option.
7. For this reason, the assessment of the extent to which the proposed development conforms with or deviates from the PBP (the matter in cl 45(2)(h) of the Rural Fires Regulation) needs to be undertaken by the consent authority and, on the appeal in this case, by the Commissioner in determining the development application to carry out the proposed integrated development. The matter was a relevant matter for the Commissioner to consider in determining the development application.
8. That obligation is reinforced by s 39(4) of the Court Act. This provides: "In making a decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act the circumstances of the case and the public interest".
9. Clause 45(2)(h) of the Rural Fires Regulation falls within the scope of these matters that s 39(4) of the Court Act required the Commissioner to consider in making her decision on the appeal in this case.
10. The Commissioner also was required to consider the impact of bush fire attack on the people and assets on the land and the bush fire protection measures to mitigate that impact under s 4.15(1)(c) of the EPA Act. The Commissioner, exercising the functions of the consent authority on appeal, was obliged, in determining the development application, to take into consideration "the suitability of the site for the development." The suitability of the land for the proposed development of a residential subdivision was dependent on the provision of an APZ that complied with the APZ requirements of the PBP. Hence, the Commissioner needed to assess the extent to which the proposed development conformed with or deviated from the PBP.

The Commissioner's consideration

1. The Commissioner determined the appeal in two stages: first, she determined, in principle, to grant development consent (her decision of 10 November 2023) and second, on settling the conditions of consent, she granted development consent (her decision of 5 December 2023). The Commissioner's reasons for decision are given in her first judgment of 10 November 2023. The Council's grounds of appeal relate to those reasons.
2. The Commissioner recognised that the proposed development was integrated development, as a bush fire safety authority was required under s 100B of the Rural Fires Act, and that consideration needed to be given to the proposed development's compliance with the PBP. But the Commissioner erroneously thought that the question of whether the proposed development conformed with or deviated from the PBP was to be answered by reference to whether the adjoining Council land is "managed land" pursuant to the Rural Fires Act.
3. The Commissioner framed this as the central issue to be determined in the case: "This case is about whether the council land adjacent to the Site is managed land pursuant to the Rural Fires Act 1997 (Rural Fires Act) in the context of the Site being bush fire prone land and the Proposed Development requiring a bush fire safety authority pursuant to s 100B of the Rural Fires Act" (at [6]).
4. The Commissioner distilled the issues concerning the bush fire risk to two questions (at [48]). The first question concerned the jurisdiction of the Court to grant development consent: "(1) What is the jurisdiction of the Court pursuant to s 4.47 of the EPA Act in the context of integrated development where there is no bush fire safety authority from the NSW RFS pursuant to s 100B of the Rural Fires Act? The answer lies in s 39(6) of the LEC Act" (at 48).
5. This question was itself misdirected as under s 4.47 of the EPA Act the relevant approval authority does not need actually to have granted the approval but only to have issued the general terms of any approval proposed to be granted in relation to the development. And there was no issue between the parties that the Court, exercising the functions of the consent authority on appeal, had jurisdiction to grant development consent irrespective of whether the relevant approval body informed the consent authority that it did or did not intend to grant the approval or did or did not issue general terms of approval. That was clear from s 8.14(4) of the EPA Act (not from s 39(6) of the Court Act as the Commissioner thought).
6. The second question was, therefore, the operative question. This was the central issue the Commissioner had identified the case to be about: "(2) Is the council land 'managed' land? (a) If yes, then it may be considered as a performance based solution pursuant to the PBP, Section 3.2.5 APZs on adjoining land; or (b) If no, then the Applicant seeks the opportunity to apply for an easement over council land pursuant to s 40 of the LEC Act."
7. The question again asks whether the adjoining Council land is "managed land". If the question is answered in the affirmative, the Commissioner thought that it may be considered as a performance based solution pursuant to s 3.2.5 of the PBP. Although not clear, the "it" seems to be a reference to the fact that the adjoining Council land is "managed land". The Commissioner seems to have thought that by the APZ being on "managed land", the APZ would comply with the APZ requirements in s 3.2.5 of the PBP. All of this thinking was misdirected, as I will explain below.
8. Nevertheless, the Commissioner set about answering the questions she had raised (in [6] and [48]). Her answer to the first question about the jurisdiction of the Court to grant consent was, unsurprisingly, that the Court did have jurisdiction. That answer is given in [60], for the reasons developed in [52]-[59].
9. The Commissioner then sought to answer the second question in the section under the heading "The second question: is the council land 'managed land'?" between [65]-[91]. The answer to the second question is given in [91]: "As such, I am satisfied that the existing APZ on Council land adjacent to the Site is managed land. Accordingly, it is not necessary to proceed to the next question regarding the need to afford the Applicant an opportunity to apply for an easement or other legal mechanism pursuant to s 40 of the LEC Act or s 88B of the Conveyancing Act 1919."
10. The Commissioner's reasons for giving that answer are apparently, from the structure of the judgment, in [65]-[91]. I say "apparently" because what the Commissioner says in those paragraphs does not actually address the question she posed of whether the adjoining Council land is "managed land" under the Rural Fires Act.
11. Nowhere does the Commissioner refer to the definition of "managed land" in: first, s 100A(1) of the Rural Fires Act, which definition applies for Division 8 of Part 4 of the Rural Fires Act within which s 100B sits; second, the Dictionary to the Rural Fires Act, which definition is extended by cl 42(1) of the Rural Fires Regulation; and third, in the Definitions section of the PBP. Each of these definitions of "managed land" are different. If the Commissioner considered the relevant question to be whether the adjoining Council land was "managed land" pursuant to the Rural Fires Act, she needed to refer to these definitions and decide, first, which was the applicable definition and, second, whether the facts concerning the adjoining Council land fell within or without that definition. The Commissioner did neither.
12. Instead, the Commissioner discussed in general terms whether and how the Council has "managed" the adjoining Council land as an APZ. To that end, the Commissioner identified that the Council has a Shoalhaven City Bush Fire Risk Management Plan, under which the Council carries out, for the whole of the Shoalhaven City local government area, a Bushfire Mitigation Program (at [69]) and a Generic Community Land Plan of Management - Natural Areas, which provides for bush fire mitigation (at [71] and [88]). The Commissioner recorded the evidence of the bush fire experts regarding the Annual Bushfire Mitigation Program (at [74]-[75]); what APZ management is needed for the site (at [76]-[86]); what management of the adjoining Council land has occurred in the past (at [87]); what management of the development site is proposed (at [89]); and whether the Council will continue to manage the adjoining Council land as an APZ in the future (at [90]-[91]). That discussion was directed to the bush fire protection management of both the land proposed to be developed and the adjoining Council land, but not whether the adjoining Council land was "managed land" under the Rural Fires Act. Nevertheless, it would appear that the Commissioner thought that if the adjoining Council land was managed as an APZ, it acquired the status of being "managed land" pursuant to the Rural Fires Act.
13. The Commissioner's finding that the adjoining Council land was "managed land" was not an end in itself, but a means to an end. As the binary choice of answers in [48] suggests, the Commissioner thought that if the adjoining Council land was "managed land", that fact meant that providing the APZ on the adjoining Council land would be "a performance based solution pursuant to the PBP, Section 3.2.5 APZs on adjoining land." What this meant is also not clear, but it does not accord with what s 3.2.5 of the PBP requires.
14. Section 3.2.5 of the PBP is clear in stating that "APZs on adjoining land are not encouraged." The reason is that an APZ, intended to provide bush fire protection for a development, needs to "be maintained for the lifetime of the development". In order to guarantee that an APZ "can be managed in perpetuity", the APZ "should be contained within the overall development site, and not on adjoining lands."
15. Where, however, an APZ is proposed on adjoining land, "a guarantee must be provided that the land will be managed in perpetuity." For adjoining land that is privately owned, this guarantee can be achieved by having an easement under s 88B of the Conveyancing Act to ensure: "● surety of APZ and the correct management prescriptions; and ● that management occurs in a binding legal agreement in perpetuity."
16. The imposition of an easement on the adjoining private land, guaranteeing management of that land as an APZ in perpetuity, "will be considered as a performance based solution" (s 3.2.5 of the PBP). That is to say, it is a solution to the performance criterion that the APZ is provided in perpetuity (the third performance criterion in Table 5.3a and the requirement in s 3.2.5 that "an APZ can be managed in perpetuity"). The acceptable solution to that performance criterion is that "APZs are wholly within the boundaries of the development site" (the acceptable solution given in Table 5.3a and in s 3.2.5). An alternative solution to that performance criterion is that, if the APZ is not wholly on the development site and is on adjoining land, an easement be imposed guaranteeing that the adjoining land will be managed in perpetuity.
17. This alternative solution of an easement to the performance criterion that the APZ be managed in perpetuity is stated in s 3.2.5 as not being appropriate where the adjoining land "is used for a public purpose and where vegetation management is not likely or cannot be legally granted" (s 3.2.5). That is the case where the APZ is proposed to be established on "lands belonging to council or government where there is no guaranteed commitment to future management" (s 3.2.6). Indeed, an easement under s 88B of the Conveyancing Act may not be able to be imposed on council land classified as community land under the Local Government Act 1995 (NSW).
18. For lands belonging to council or government, yet another alternative solution is available. This is that the council or government adopt a Plan of Management which "provides the assurance that an APZ will be managed in perpetuity" (s 3.2.6). Furthermore, the adopted Plan of Management must demonstrate "that a management regime is in place to ensure ongoing compliance with APZ requirements". In order to demonstrate ongoing compliance, the content of the Plan of Management should include: "● the prescribed APZ requirements and its treatment details (e.g. IPA and OPA widths and fuel loads); ● the predicted timing intervals of the management options; ● notification of any transition arrangements for management or ownership alterations which occur as a result of land dedication or acquisition; ● demonstration that the relevant authority has the necessary experience, resources and funds to undertake the directions; and ● acknowledgement of responsibility from the adjoining landholder that the APZ will be managed in perpetuity."
19. In summary, the PBP sets a performance criterion that the APZ is provided in perpetuity; the accepted solution to achieve this performance criterion is that the APZ is wholly within the boundaries of the development site; an alternative solution to achieve this performance criterion for an APZ on privately owned, adjoining land is having an easement under s 88B of the Conveyancing Act guaranteeing that the land will be managed in perpetuity; and a further alternative solution to achieve this performance criterion for an APZ on publicly owned, adjoining land is having an adopted Plan of Management that provides the assurance that the APZ will be managed in perpetuity.
20. None of these accepted or alternative solutions to achieve the performance criterion in the PBP are what the Commissioner believed the "performance based solution" to be. The Commissioner believed that the performance based solution was that the adjoining Council land was "managed land". That belief had no foundation in the PBP, or any other section of the PBP.

The misdirections of the Commissioner

1. The Council contended, in appeal ground (a), that the Commissioner "misdirected herself on a material issue in the proceedings as to the task required under [the PBP], being whether the APZ is provided 'in perpetuity'." The Council particularised that the PBP sets as a performance criterion for residential subdivisions that the APZ is provided in perpetuity (in s 3.2.5 and Table 5.3a) (particular (i)); there was no evidence before the Commissioner as to the basis on which the APZ would be managed in perpetuity (particular (ii)); the Commissioner failed to address, as the RFS had requested, how the appropriate APZ required by the PBP can be achieved within the proposed subdivision and not on the adjoining Council land (particular (iii)); and the Commissioner did not make any finding that the APZ on the adjoining Council land would be guaranteed to be managed in perpetuity, either by means of an easement or an adopted Plan of Management (particular (iv)).
2. The Council also contended that the Commissioner misdirected herself as to s 3.2.5 of the PBP in finding that the applicant's proposed conditions (which dealt only with the APZ on the development site) were sufficient and preferable to the Council's proposed conditions (which would have required the applicant to secure an easement on the adjoining Council land for the management in perpetuity of the APZ on that land).
3. The misdirections claimed by the Council are those that I have flagged earlier in the discussion of the Commissioner's reasoning. In summary, the Commissioner: 1. asked the wrong question concerning whether the adjoining Council was "managed land"; 2. answered that question erroneously in law; 3. failed to ask the right question of whether the proposed APZ conformed with the PBP; 4. misdirected herself as to the performance criterion that APZs are to be managed in perpetuity; and 5. misdirected herself as to the acceptable and alternative solutions to achieve that performance criterion.
4. Easter Developments endeavoured to sustain the Commissioner's reasoning but given the extent of misdirection, this was a difficult task. Easter Developments was not able to show why the question posed by the Commissioner, whether the adjoining Council land was "managed land" pursuant to the Rural Fires Act, was a relevant question. None of the applicable statutory provisions for making, assessing or approving either an application for a bush fire safety authority under s 100B of the Rural Fires Act or an application for development consent under the EPA Act refer to or require the land to be developed or the adjoining land on which an APZ is to be maintained, to be "managed land". The categorisation of the development site or adjoining land as "managed land" is irrelevant.
5. Easter Developments nevertheless argued that the fact that the adjoining Council land had been managed in the past and would be managed in the future as an APZ was relevant to the Commissioner's assessment of the risk of bush fire attack and the bush fire protection measures proposed. That may be so, but it is not an answer to the Commissioner's misdirection by asking the wrong question about whether the adjoining Council land was "managed land".
6. Easter Developments sought to support the Commissioner's answer to the question on the basis of the Commissioner's apparent construction of s 3.2.5 and s 3.2.6 of the PBP. Easter Developments submitted that the performance criterion that APZs on adjoining land must be managed in perpetuity (in s 3.2.5 and Table 5.3a) only applied to new APZs, not existing APZs.
7. Easter Developments noted that s 5.3.1 and Table 5.3a identify four performance criteria, one of which is that the APZ is provided in perpetuity. Easter Developments argued, however, that this was not the relevant criterion for an existing APZ, only for the creation of a new APZ. Easter Developments submitted that the relevant performance criterion for an existing APZ is the second criterion that "APZs are managed and maintained to prevent the spread of a fire towards the building". In the present case, Easter Developments submitted that the Council had already managed the adjoining Council land as an APZ and the proposed APZ of 21.5m sought to take advantage of 6m of this existing APZ.
8. That was an argument Easter Development had advanced in the court below, which was accepted by the Commissioner (at [88]). But it was wrong.
9. The bush fire protection measures in the PBP, including the provision of APZs, are forward-looking. The measures are intended to protect the proposed development for the lifetime of the development. Hence, it matters not whether the APZ that is proposed to provide bush fire protection for a development is an existing APZ or a new APZ, either way the APZ must be managed in perpetuity. The PBP sets this as a performance criterion for any APZ, whether existing or new. The proposed APZ must be guaranteed to be managed in perpetuity.
10. For an APZ on adjoining land, that assurance that the proposed APZ will be managed in perpetuity can be provided by the imposition of an easement under s 88B of the Conveyancing Act for privately owned land (as required by s 3.2.5 of the PBP) or by an adopted Plan of Management that provides the assurance that the APZ will be managed in perpetuity for publicly owned land (as required by s 3.2.6 of the PBP).
11. Easter Developments' argument that the performance criterion (in s 3.2.5, s 3.2.6 and Table 5.3a) that the APZ be provided in perpetuity is not relevant to the adjoining Council land in this case is incorrect. The Commissioner needed to ask whether the APZ proposed by Easter Developments to protect the proposed development achieved this performance criterion that the APZ will be maintained in perpetuity.
12. The Commissioner similarly misinterpreted s 3.2.6 of the PBP when she found in [88] that a Plan of Management as referred to in s 3.2.6 of the PBP was not required. A Plan of Management, which complied with the requirements of s 3.2.6, was required. That was the way in which the performance criterion that the APZ be provided in perpetuity could be achieved. Easter Developments was not proposing the accepted solution in Table 5.3a of providing the APZ wholly within the boundaries of the development site. The adjoining land on which the proposed APZ would be partially located belonged to the Council so that the alternative solution of an easement over that land "should not be considered" (s 3.2.5). That left the adoption of a Plan of Management under s 3.2.6, which would provide the assurance that the APZ on the land belonging to the Council will be managed in perpetuity.
13. The Commissioner's finding that the existing Generic Community Land Plan of Management - Natural Areas, which was applicable to all of the Council's community land, including the adjoining land, was sufficient, involved misdirection. In order for that Generic Community Land Plan of Management to satisfy the requirements in s 3.2.6, it would need to, first, provide "the assurance that an APZ will be managed in perpetuity"; secondly, demonstrate that "a management regime is in place to ensure ongoing compliance with APZ requirements"; and thirdly, have as its content, the five content requirements in s 3.2.6, including "an acknowledgment of responsibility from the adjoining land holder [the Council] that the APZ will be managed in perpetuity."
14. The Commissioner did not assay this task of verifying that the Generic Community Land Plan of Management achieved any of these requirements of s 3.2.6 of the PBP. The Commissioner considered it was sufficient that the Plan of Management "expressly addresses Bushfire Mitigation and asset protection" (at [88]). But that was not sufficient.
15. Although Easter Developments sought initially to support the Commissioner's finding that the Generic Community Land Plan of Management was sufficient, it was not able to demonstrate how that Plan of Management achieved any of the requirements of s 3.2.6 of the PBP. The Generic Community Land Plan of Management was written for an entirely different purpose. There is one short, five-paragraph section on "Bushfire Mitigation". But that section does not establish or refer to an APZ on the area of community land adjacent to the development site; provide the assurance that that APZ will be managed in perpetuity; demonstrate that a management regime is in place to ensure ongoing compliance with APZ requirements; or contain the content requirements of s 3.2.6 of the PBP.
16. Similarly, Easter Developments was not able to demonstrate how the other plan of management referred to elsewhere by the Commissioner, the Bush Fire Risk Management Plan, achieved any of the requirements of s 3.2.6 of the PBP. Although that Plan did identify an APZ on the adjoining Council land, the Plan was only for a period of five years, so could not provide the assurance that APZ would be managed in perpetuity.
17. The bushfire expert called by the Council, Mr McMonnies, stated that the Bush Fire Risk Management Plan did not satisfy the five content requirements for a Plan of Management pursuant to s 3.2.6 of the PBP (at [82]). The Commissioner rejected that evidence, not because it was factually incorrect (which it was not), but because the Commissioner thought this was a misapplication of the PBP. The Commissioner considered that s 3.2.6 did not apply to an existing APZ on Council community land where there was already a plan of management applicable to the Council community land (at [83] and [88]). But it was not Mr McMonnies who misapplied s 3.2.6, it was the Commissioner who misinterpreted s 3.2.6.
18. Section 3.2.6 of the PBP provided an alternative solution to achieve the performance criterion that an APZ is to be provided in perpetuity. If the APZ is to be provided on land belonging to the Council, there must be an adopted Plan of Management that meets the requirements of s 3.2.6, including the five content requirements referred to by Mr McMonnies. The Bush Fire Risk Management Plan did not satisfy these content requirements of s 3.2.6. In short, it was not a Plan of Management for the purposes of s 3.2.6.
19. The only conclusion available to the Commissioner in these circumstances was to find that the performance based solution in s 3.2.6, of there being an adopted Plan of Management providing the assurance that the APZ on the adjoining Council land will be managed in perpetuity, was not achieved.
20. Easter Developments also sought to support the reasoning of the Commissioner that "it is improbable that the current management of the APZ on the adjoining Council land will result in a change in treatment to that land which would increase bush fire risk to those existing residential assets" on the adjacent residential land (at [91] and to similar effect at [90]). But that finding was not to the point. To find that it is improbable that the management of the APZ on the adjoining Council land will be changed so as to increase the bushfire risk to the proposed development is uninformative regarding whether that APZ will be managed in perpetuity in compliance with the APZ requirements in the PBP, including in s 3.2.6, so as to protect people and assets on the residential land from bush fire attack. That was the question the Commissioner needed to ask, but did not ask.
21. The Council's second ground of appeal, ground (b), that the Commissioner misdirected herself as to s 3.2.5 of the PBP in finding the applicant's proposed conditions were sufficient and preferable to the Council's proposed conditions, is linked to the first ground.
22. The reason the Commissioner declined to impose the Council's proposed conditions, which would have required the applicant to obtain an easement over the adjoining Council land to ensure that the APZ on that land is managed in perpetuity, flowed from the Commissioner's misdirection in relation to the PBP, in particular s 3.2.5 and s 3.2.6. The Commissioner stated in [113] (1) in relation to "Condition 3 Asset Protection Zone": "I have found that the council land is 'managed' land and accordingly, no easement or other 'suitable legal mechanism' is required. Proposed condition 1B as sought by the Respondent is to be deleted and I note that the sequential numbering of the conditions generally will then need to be corrected".
23. Both the Council and Easter Developments accepted that the fate of this ground is linked to the fate of the first ground - the misdirection is common to both. I agree. The Commissioner misdirected herself in rejecting the Council's proposed conditions.

Conclusion and orders

1. The Council has established both grounds of appeal that the Commissioner erred on questions of law by asking the wrong question, failing to ask the right question and misdirecting herself regarding the PBP. The appeal should be upheld, the decision and orders of the Commissioner set aside, and the matter remitted to the Commissioner to be redetermined. Costs should follow the event.
2. The Court orders: 1. The appeal is upheld. 2. The decision of Commissioner Espinosa of 10 November 2023 and the orders of 5 December 2023 are set aside. 3. The matter is remitted to be determined according to law and these reasons for decision. 4. The respondent is to pay the appellant's costs of this appeal.

Amendments 16 May 2024 - 16/05/2024 - Deleted "the" between "relevant" and "approval" in the first sentence of paragraph [23] 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: 16 May 2024

(s 4.47(2) of the EPA Act). If the approval body informs the consent authority of the general terms of any approval it proposes to grant, the consent granted by the consent authority must be consistent with those general terms of approval (s 4.47(3) of the EPA Act). If the approval body informs the consent authority it will not grant an approval, the consent authority must refuse consent to the application (s 4.47(4) of the EPA Act). If the approval body fails to inform the consent authority whether or not it will grant the approval, or of the general terms of approval, the consent authority may determine the development application and, if determined by granting consent, the approval body cannot refuse to grant approval to any application for approval in respect of the development and any approval granted by the approval body must not be inconsistent with the development consent (s 4.47(5)). 2. On an appeal against the consent authority's decision with respect to development, the Court may determine the appeal whether or not the consent authority has obtained general terms of approval from the relevant approval body, is not bound to refuse the application for development consent because the relevant approval body has decided not to grant a relevant approval or determine general terms of approval, and may grant development consent on conditions that are inconsistent with the general terms of approval from the approval body (s 8.14(4) of the EPA Act). 3. In the case of development that is integrated development by reason of a bush fire safety authority being required, the application for development consent under the EPA Act ought to include the information that an application for a bush fire safety authority must include. That logically follows from the operation of the integrated development provisions in s 4.46 to s 4.50 of the EPA Act. If the consent authority grants development consent to integrated development, the approval body (the RFS Commissioner in the case of a bush fire safety authority) must grant approval to any application for approval that is made within three years after the date on which development consent is granted (s 4.47(5)(b)(i) and s 4.50(1) of the EPA Act) and on conditions that are not inconsistent with the development consent (s 4.47(5)(b)(ii) and s 4.50(2)of the EPA Act). 4. In this case, the Commissioner, exercising the functions of the consent authority on appeal, granted development consent to the proposed integrated development. That decision on the appeal is taken to be the final decision of the consent authority and is to be given effect to accordingly (s 8.14(2) of the EPA Act). Hence, the RFS Commissioner would be obliged, if application were to be made for a bush fire safety approval, to grant that approval on conditions not inconsistent with the development consent granted by the Court. The RFS Commissioner could not refuse a bush fire safety authority on the basis that the proposed development deviated from the PBP. The decision of the Court foreclosed that option. 5. For this reason, the assessment of the extent to which the proposed development conforms with or deviates from the PBP (the matter in cl 45(2)(h) of the Rural Fires Regulation) needs to be undertaken by the consent authority and, on the appeal in this case, by the Commissioner in determining the development application to carry out the proposed integrated development. The matter was a relevant matter for the Commissioner to consider in determining the development application. 6. That obligation is reinforced by s 39(4) of the Court Act. This provides:

"In making a decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act the circumstances of the case and the public interest".

1. Clause 45(2)(h) of the Rural Fires Regulation falls within the scope of these matters that s 39(4) of the Court Act required the Commissioner to consider in making her decision on the appeal in this case.
2. The Commissioner also was required to consider the impact of bush fire attack on the people and assets on the land and the bush fire protection measures to mitigate that impact under s 4.15(1)(c) of the EPA Act. The Commissioner, exercising the functions of the consent authority on appeal, was obliged, in determining the development application, to take into consideration "the suitability of the site for the development." The suitability of the land for the proposed development of a residential subdivision was dependent on the provision of an APZ that complied with the APZ requirements of the PBP. Hence, the Commissioner needed to assess the extent to which the proposed development conformed with or deviated from the PBP.

1. The Commissioner determined the appeal in two stages: first, she determined, in principle, to grant development consent (her decision of 10 November 2023) and second, on settling the conditions of consent, she granted development consent (her decision of 5 December 2023). The Commissioner's reasons for decision are given in her first judgment of 10 November 2023. The Council's grounds of appeal relate to those reasons.
2. The Commissioner recognised that the proposed development was integrated development, as a bush fire safety authority was required under s 100B of the Rural Fires Act, and that consideration needed to be given to the proposed development's compliance with the PBP. But the Commissioner erroneously thought that the question of whether the proposed development conformed with or deviated from the PBP was to be answered by reference to whether the adjoining Council land is "managed land" pursuant to the Rural Fires Act.
3. The Commissioner framed this as the central issue to be determined in the case: "This case is about whether the council land adjacent to the Site is managed land pursuant to the Rural Fires Act 1997 (Rural Fires Act) in the context of the Site being bush fire prone land and the Proposed Development requiring a bush fire safety authority pursuant to s 100B of the Rural Fires Act" (at [6]).
4. The Commissioner distilled the issues concerning the bush fire risk to two questions (at [48]). The first question concerned the jurisdiction of the Court to grant development consent: "(1) What is the jurisdiction of the Court pursuant to s 4.47 of the EPA Act in the context of integrated development where there is no bush fire safety authority from the NSW RFS pursuant to s 100B of the Rural Fires Act? The answer lies in s 39(6) of the LEC Act" (at [48](1)).
5. This question was itself misdirected as under s 4.47 of the EPA Act the relevant approval authority does not need actually to have granted the approval but only to have issued the general terms of any approval proposed to be granted in relation to the development. And there was no issue between the parties that the Court, exercising the functions of the consent authority on appeal, had jurisdiction to grant development consent irrespective of whether the relevant approval body informed the consent authority that it did or did not intend to grant the approval or did or did not issue general terms of approval. That was clear from s 8.14(4) of the EPA Act (not from s 39(6) of the Court Act as the Commissioner thought).
6. The second question was, therefore, the operative question. This was the central issue the Commissioner had identified the case to be about:

(a) If yes, then it may be considered as a performance based solution pursuant to the PBP, Section 3.2.5 APZs on adjoining land; or

(b) If no, then the Applicant seeks the opportunity to apply for an easement over council land pursuant to s 40 of the LEC Act."

1. The question again asks whether the adjoining Council land is "managed land". If the question is answered in the affirmative, the Commissioner thought that it may be considered as a performance based solution pursuant to s 3.2.5 of the PBP. Although not clear, the "it" seems to be a reference to the fact that the adjoining Council land is "managed land". The Commissioner seems to have thought that by the APZ being on "managed land", the APZ would comply with the APZ requirements in s 3.2.5 of the PBP. All of this thinking was misdirected, as I will explain below.
2. Nevertheless, the Commissioner set about answering the questions she had raised (in [6] and [48]). Her answer to the first question about the jurisdiction of the Court to grant consent was, unsurprisingly, that the Court did have jurisdiction. That answer is given in [60], for the reasons developed in [52]-[59].
3. The Commissioner then sought to answer the second question in the section under the heading "The second question: is the council land 'managed land'?" between [65]-[91]. The answer to the second question is given in [91]:

"As such, I am satisfied that the existing APZ on Council land adjacent to the Site is managed land. Accordingly, it is not necessary to proceed to the next question regarding the need to afford the Applicant an opportunity to apply for an easement or other legal mechanism pursuant to s 40 of the LEC Act or s 88B of the Conveyancing Act 1919."

1. The Commissioner's reasons for giving that answer are apparently, from the structure of the judgment, in [65]-[91]. I say "apparently" because what the Commissioner says in those paragraphs does not actually address the question she posed of whether the adjoining Council land is "managed land" under the Rural Fires Act.
2. Nowhere does the Commissioner refer to the definition of "managed land" in: first, s 100A(1) of the Rural Fires Act, which definition applies for Division 8 of Part 4 of the Rural Fires Act within which s 100B sits; second, the Dictionary to the Rural Fires Act, which definition is extended by cl 42(1) of the Rural Fires Regulation; and third, in the Definitions section of the PBP. Each of these definitions of "managed land" are different. If the Commissioner considered the relevant question to be whether the adjoining Council land was "managed land" pursuant to the Rural Fires Act, she needed to refer to these definitions and decide, first, which was the applicable definition and, second, whether the facts concerning the adjoining Council land fell within or without that definition. The Commissioner did neither.
3. Instead, the Commissioner discussed in general terms whether and how the Council has "managed" the adjoining Council land as an APZ. To that end, the Commissioner identified that the Council has a Shoalhaven City Bush Fire Risk Management Plan, under which the Council carries out, for the whole of the Shoalhaven City local government area, a Bushfire Mitigation Program (at [69]) and a Generic Community Land Plan of Management - Natural Areas, which provides for bush fire mitigation (at [71] and [88]). The Commissioner recorded the evidence of the bush fire experts regarding the Annual Bushfire Mitigation Program (at [74]-[75]); what APZ management is needed for the site (at [76]-[86]); what management of the adjoining Council land has occurred in the past (at [87]); what management of the development site is proposed (at [89]); and whether the Council will continue to manage the adjoining Council land as an APZ in the future (at [90]-[91]). That discussion was directed to the bush fire protection management of both the land proposed to be developed and the adjoining Council land, but not whether the adjoining Council land was "managed land" under the Rural Fires Act. Nevertheless, it would appear that the Commissioner thought that if the adjoining Council land was managed as an APZ, it acquired the status of being "managed land" pursuant to the Rural Fires Act.
4. The Commissioner's finding that the adjoining Council land was "managed land" was not an end in itself, but a means to an end. As the binary choice of answers in [48] suggests, the Commissioner thought that if the adjoining Council land was "managed land", that fact meant that providing the APZ on the adjoining Council land would be "a performance based solution pursuant to the PBP, Section 3.2.5 APZs on adjoining land." What this meant is also not clear, but it does not accord with what s 3.2.5 of the PBP requires.
5. Section 3.2.5 of the PBP is clear in stating that "APZs on adjoining land are not encouraged." The reason is that an APZ, intended to provide bush fire protection for a development, needs to "be maintained for the lifetime of the development". In order to guarantee that an APZ "can be managed in perpetuity", the APZ "should be contained within the overall development site, and not on adjoining lands."
6. Where, however, an APZ is proposed on adjoining land, "a guarantee must be provided that the land will be managed in perpetuity." For adjoining land that is privately owned, this guarantee can be achieved by having an easement under s 88B of the Conveyancing Act to ensure:

"● surety of APZ and the correct management prescriptions; and

● that management occurs in a binding legal agreement in perpetuity."

1. The imposition of an easement on the adjoining private land, guaranteeing management of that land as an APZ in perpetuity, "will be considered as a performance based solution" (s 3.2.5 of the PBP). That is to say, it is a solution to the performance criterion that the APZ is provided in perpetuity (the third performance criterion in Table 5.3a and the requirement in s 3.2.5 that "an APZ can be managed in perpetuity"). The acceptable solution to that performance criterion is that "APZs are wholly within the boundaries of the development site" (the acceptable solution given in Table 5.3a and in s 3.2.5). An alternative solution to that performance criterion is that, if the APZ is not wholly on the development site and is on adjoining land, an easement be imposed guaranteeing that the adjoining land will be managed in perpetuity.
2. This alternative solution of an easement to the performance criterion that the APZ be managed in perpetuity is stated in s 3.2.5 as not being appropriate where the adjoining land "is used for a public purpose and where vegetation management is not likely or cannot be legally granted" (s 3.2.5). That is the case where the APZ is proposed to be established on "lands belonging to council or government where there is no guaranteed commitment to future management" (s 3.2.6). Indeed, an easement under s 88B of the Conveyancing Act may not be able to be imposed on council land classified as community land under the Local Government Act 1995 (NSW).
3. For lands belonging to council or government, yet another alternative solution is available. This is that the council or government adopt a Plan of Management which "provides the assurance that an APZ will be managed in perpetuity" (s 3.2.6). Furthermore, the adopted Plan of Management must demonstrate "that a management regime is in place to ensure ongoing compliance with APZ requirements". In order to demonstrate ongoing compliance, the content of the Plan of Management should include:

"● the prescribed APZ requirements and its treatment details (e.g. IPA and OPA widths and fuel loads);

● the predicted timing intervals of the management options;

● notification of any transition arrangements for management or ownership alterations which occur as a result of land dedication or acquisition;

● demonstration that the relevant authority has the necessary experience, resources and funds to undertake the directions; and

● acknowledgement of responsibility from the adjoining landholder that the APZ will be managed in perpetuity."

1. In summary, the PBP sets a performance criterion that the APZ is provided in perpetuity; the accepted solution to achieve this performance criterion is that the APZ is wholly within the boundaries of the development site; an alternative solution to achieve this performance criterion for an APZ on privately owned, adjoining land is having an easement under s 88B of the Conveyancing Act guaranteeing that the land will be managed in perpetuity; and a further alternative solution to achieve this performance criterion for an APZ on publicly owned, adjoining land is having an adopted Plan of Management that provides the assurance that the APZ will be managed in perpetuity.
2. None of these accepted or alternative solutions to achieve the performance criterion in the PBP are what the Commissioner believed the "performance based solution" to be. The Commissioner believed that the performance based solution was that the adjoining Council land was "managed land". That belief had no foundation in the PBP, or any other section of the PBP.

1. The Council contended, in appeal ground (a), that the Commissioner "misdirected herself on a material issue in the proceedings as to the task required under [the PBP], being whether the APZ is provided 'in perpetuity'." The Council particularised that the PBP sets as a performance criterion for residential subdivisions that the APZ is provided in perpetuity (in s 3.2.5 and Table 5.3a) (particular (i)); there was no evidence before the Commissioner as to the basis on which the APZ would be managed in perpetuity (particular (ii)); the Commissioner failed to address, as the RFS had requested, how the appropriate APZ required by the PBP can be achieved within the proposed subdivision and not on the adjoining Council land (particular (iii)); and the Commissioner did not make any finding that the APZ on the adjoining Council land would be guaranteed to be managed in perpetuity, either by means of an easement or an adopted Plan of Management (particular (iv)).
2. The Council also contended that the Commissioner misdirected herself as to s 3.2.5 of the PBP in finding that the applicant's proposed conditions (which dealt only with the APZ on the development site) were sufficient and preferable to the Council's proposed conditions (which would have required the applicant to secure an easement on the adjoining Council land for the management in perpetuity of the APZ on that land).
3. The misdirections claimed by the Council are those that I have flagged earlier in the discussion of the Commissioner's reasoning. In summary, the Commissioner:

(a) asked the wrong question concerning whether the adjoining Council was "managed land";

(b) answered that question erroneously in law;

(c) failed to ask the right question of whether the proposed APZ conformed with the PBP;

(d) misdirected herself as to the performance criterion that APZs are to be managed in perpetuity; and

(e) misdirected herself as to the acceptable and alternative solutions to achieve that performance criterion.

1. Easter Developments endeavoured to sustain the Commissioner's reasoning but given the extent of misdirection, this was a difficult task. Easter Developments was not able to show why the question posed by the Commissioner, whether the adjoining Council land was "managed land" pursuant to the Rural Fires Act, was a relevant question. None of the applicable statutory provisions for making, assessing or approving either an application for a bush fire safety authority under s 100B of the Rural Fires Act or an application for development consent under the EPA Act refer to or require the land to be developed or the adjoining land on which an APZ is to be maintained, to be "managed land". The categorisation of the development site or adjoining land as "managed land" is irrelevant.
2. Easter Developments nevertheless argued that the fact that the adjoining Council land had been managed in the past and would be managed in the future as an APZ was relevant to the Commissioner's assessment of the risk of bush fire attack and the bush fire protection measures proposed. That may be so, but it is not an answer to the Commissioner's misdirection by asking the wrong question about whether the adjoining Council land was "managed land".
3. Easter Developments sought to support the Commissioner's answer to the question on the basis of the Commissioner's apparent construction of s 3.2.5 and s 3.2.6 of the PBP. Easter Developments submitted that the performance criterion that APZs on adjoining land must be managed in perpetuity (in s 3.2.5 and Table 5.3a) only applied to new APZs, not existing APZs.
4. Easter Developments noted that s 5.3.1 and Table 5.3a identify four performance criteria, one of which is that the APZ is provided in perpetuity. Easter Developments argued, however, that this was not the relevant criterion for an existing APZ, only for the creation of a new APZ. Easter Developments submitted that the relevant performance criterion for an existing APZ is the second criterion that "APZs are managed and maintained to prevent the spread of a fire towards the building". In the present case, Easter Developments submitted that the Council had already managed the adjoining Council land as an APZ and the proposed APZ of 21.5m sought to take advantage of 6m of this existing APZ.
5. That was an argument Easter Development had advanced in the court below, which was accepted by the Commissioner (at [88]). But it was wrong.
6. The bush fire protection measures in the PBP, including the provision of APZs, are forward-looking. The measures are intended to protect the proposed development for the lifetime of the development. Hence, it matters not whether the APZ that is proposed to provide bush fire protection for a development is an existing APZ or a new APZ, either way the APZ must be managed in perpetuity. The PBP sets this as a performance criterion for any APZ, whether existing or new. The proposed APZ must be guaranteed to be managed in perpetuity.
7. For an APZ on adjoining land, that assurance that the proposed APZ will be managed in perpetuity can be provided by the imposition of an easement under s 88B of the Conveyancing Act for privately owned land (as required by s 3.2.5 of the PBP) or by an adopted Plan of Management that provides the assurance that the APZ will be managed in perpetuity for publicly owned land (as required by s 3.2.6 of the PBP).
8. Easter Developments' argument that the performance criterion (in s 3.2.5, s 3.2.6 and Table 5.3a) that the APZ be provided in perpetuity is not relevant to the adjoining Council land in this case is incorrect. The Commissioner needed to ask whether the APZ proposed by Easter Developments to protect the proposed development achieved this performance criterion that the APZ will be maintained in perpetuity.
9. The Commissioner similarly misinterpreted s 3.2.6 of the PBP when she found in [88] that a Plan of Management as referred to in s 3.2.6 of the PBP was not required. A Plan of Management, which complied with the requirements of s 3.2.6, was required. That was the way in which the performance criterion that the APZ be provided in perpetuity could be achieved. Easter Developments was not proposing the accepted solution in Table 5.3a of providing the APZ wholly within the boundaries of the development site. The adjoining land on which the proposed APZ would be partially located belonged to the Council so that the alternative solution of an easement over that land "should not be considered" (s 3.2.5). That left the adoption of a Plan of Management under s 3.2.6, which would provide the assurance that the APZ on the land belonging to the Council will be managed in perpetuity.
10. The Commissioner's finding that the existing Generic Community Land Plan of Management - Natural Areas, which was applicable to all of the Council's community land, including the adjoining land, was sufficient, involved misdirection. In order for that Generic Community Land Plan of Management to satisfy the requirements in s 3.2.6, it would need to, first, provide "the assurance that an APZ will be managed in perpetuity"; secondly, demonstrate that "a management regime is in place to ensure ongoing compliance with APZ requirements"; and thirdly, have as its content, the five content requirements in s 3.2.6, including "an acknowledgment of responsibility from the adjoining land holder [the Council] that the APZ will be managed in perpetuity."
11. The Commissioner did not assay this task of verifying that the Generic Community Land Plan of Management achieved any of these requirements of s 3.2.6 of the PBP. The Commissioner considered it was sufficient that the Plan of Management "expressly addresses Bushfire Mitigation and asset protection" (at [88]). But that was not sufficient.
12. Although Easter Developments sought initially to support the Commissioner's finding that the Generic Community Land Plan of Management was sufficient, it was not able to demonstrate how that Plan of Management achieved any of the requirements of s 3.2.6 of the PBP. The Generic Community Land Plan of Management was written for an entirely different purpose. There is one short, five-paragraph section on "Bushfire Mitigation". But that section does not establish or refer to an APZ on the area of community land adjacent to the development site; provide the assurance that that APZ will be managed in perpetuity; demonstrate that a management regime is in place to ensure ongoing compliance with APZ requirements; or contain the content requirements of s 3.2.6 of the PBP.
13. Similarly, Easter Developments was not able to demonstrate how the other plan of management referred to elsewhere by the Commissioner, the Bush Fire Risk Management Plan, achieved any of the requirements of s 3.2.6 of the PBP. Although that Plan did identify an APZ on the adjoining Council land, the Plan was only for a period of five years, so could not provide the assurance that APZ would be managed in perpetuity.
14. The bushfire expert called by the Council, Mr McMonnies, stated that the Bush Fire Risk Management Plan did not satisfy the five content requirements for a Plan of Management pursuant to s 3.2.6 of the PBP (at [82]). The Commissioner rejected that evidence, not because it was factually incorrect (which it was not), but because the Commissioner thought this was a misapplication of the PBP. The Commissioner considered that s 3.2.6 did not apply to an existing APZ on Council community land where there was already a plan of management applicable to the Council community land (at [83] and [88]). But it was not Mr McMonnies who misapplied s 3.2.6, it was the Commissioner who misinterpreted s 3.2.6.
15. Section 3.2.6 of the PBP provided an alternative solution to achieve the performance criterion that an APZ is to be provided in perpetuity. If the APZ is to be provided on land belonging to the Council, there must be an adopted Plan of Management that meets the requirements of s 3.2.6, including the five content requirements referred to by Mr McMonnies. The Bush Fire Risk Management Plan did not satisfy these content requirements of s 3.2.6. In short, it was not a Plan of Management for the purposes of s 3.2.6.
16. The only conclusion available to the Commissioner in these circumstances was to find that the performance based solution in s 3.2.6, of there being an adopted Plan of Management providing the assurance that the APZ on the adjoining Council land will be managed in perpetuity, was not achieved.
17. Easter Developments also sought to support the reasoning of the Commissioner that "it is improbable that the current management of the APZ on the adjoining Council land will result in a change in treatment to that land which would increase bush fire risk to those existing residential assets" on the adjacent residential land (at [91] and to similar effect at [90]). But that finding was not to the point. To find that it is improbable that the management of the APZ on the adjoining Council land will be changed so as to increase the bushfire risk to the proposed development is uninformative regarding whether that APZ will be managed in perpetuity in compliance with the APZ requirements in the PBP, including in s 3.2.6, so as to protect people and assets on the residential land from bush fire attack. That was the question the Commissioner needed to ask, but did not ask.
18. The Council's second ground of appeal, ground (b), that the Commissioner misdirected herself as to s 3.2.5 of the PBP in finding the applicant's proposed conditions were sufficient and preferable to the Council's proposed conditions, is linked to the first ground.
19. The reason the Commissioner declined to impose the Council's proposed conditions, which would have required the applicant to obtain an easement over the adjoining Council land to ensure that the APZ on that land is managed in perpetuity, flowed from the Commissioner's misdirection in relation to the PBP, in particular s 3.2.5 and s 3.2.6. The Commissioner stated in [113] (1) in relation to "Condition 3 Asset Protection Zone":

"I have found that the council land is 'managed' land and accordingly, no easement or other 'suitable legal mechanism' is required. Proposed condition 1B as sought by the Respondent is to be deleted and I note that the sequential numbering of the conditions generally will then need to be corrected".

1. Both the Council and Easter Developments accepted that the fate of this ground is linked to the fate of the first ground - the misdirection is common to both. I agree. The Commissioner misdirected herself in rejecting the Council's proposed conditions.

1. The Council has established both grounds of appeal that the Commissioner erred on questions of law by asking the wrong question, failing to ask the right question and misdirecting herself regarding the PBP. The appeal should be upheld, the decision and orders of the Commissioner set aside, and the matter remitted to the Commissioner to be redetermined. Costs should follow the event.
2. The Court orders:

(1) The appeal is upheld.

(2) The decision of Commissioner Espinosa of 10 November 2023 and the orders of 5 December 2023 are set aside.

(3) The matter is remitted to be determined according to law and these reasons for decision.

(4) The respondent is to pay the appellant's costs of this appeal.

16 May 2024 - 16/05/2024 - Deleted "the" between "relevant" and "approval" in the first sentence of paragraph [23]