Simpson v North Sydney Council

CITATION : Simpson v North Sydney Council [2010] NSWLEC 1211

CASES CITED: BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399 CBD Prestige Property Holdings Pty Ltd v Hornsby Shire Council [2006] NSWLEC 629

Planning for bush fire protection 126 Section 3.3 of PBFP recognises that to require ongoing hazard reduction work on land that adjoins a development site or that is used for a public purpose is difficult to achieve. Section 3.3 of PBFP also refers to land with split zones, which occurs on this site, the principle concern being that an APZ may be incompatible with one of the zones. The proposed APZ is part of the site and is currently owned by the applicant. It will be gifted to council with an obligation to maintain the APZ through the VPA and the VMP. Hazard reduction work is permissible within the Public Open Space zone and the rezoning of the site clearly envisaged that an APZ would occur within the part of the site zoned Public Open Space. The proposal therefore meets the requirements of s 3.3 of PBFP. However, we find that the incursion of the APZ into the Public Open Space zone should be kept to a minimum to limit the extent of clearing and pruning and assist in the retention of exiting trees. State Environmental Planning Policy No 19 - Bushland in Urban Areas 127 The parties agree that SEPP 19 applies to the site but disagree on the application of cl 6. Mr Larkin submits that as the Public Open Space zone is to be disturbed for hazard reduction works, which are properly characterised as being for a residential purpose and therefore cl 6(2)(a) of SEPP 19 does not apply. He referred to CBD Prestige Property Holdings Pty Ltd v Hornsby Shire Council [2006] NSWLEC 629 where Moore C determined that certain works proposed for hazard reduction in an open space zone are "merely subsumed elements of a development application for subdivision on the residentially zoned land." In Mr Larkin's submission, consent is required for the works under cl 6(1) of SEPP19 and they do not meet the tests in cl 6(4). Mr Larkin, further submits that the development on that part of the site that adjoins the Public Open Space zone and the Bushland Zone in NSLEP do not meet the tests in cl 9(2)(d) because of the fire issues and visual impact.