Viertel v Andrews

Land and Environment Court (NSW)|2008-06-05|Before: Pain J

CITATION : Viertel v Andrews [2008] NSWLEC 195

APPLICANT PARTIES : Cliff Viertel RESPONDENT Rodney Andrews

KEY ISSUES: Civil Enforcement :- whether breach of development consent conditions due to failure to manage land as inner protection zone under Planning for Bushfire Protection 2001

Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227 Minister Administering the Crown Lands Act v New South Wales Aboriginal Council [No 2] (1997) 42 NSWLR 641 CASES CITED: Rao v Canterbury City Council (2000) 112 LGERA 360 Waverley Council v Hairis Architects (2002) 123 LGERA 100 Weigall Constructions Pty Ltd v Melbourne and Metropolitan Board of Works (1972) 30 LGRA 333 Westfield Management Limited v Perpetual Trustee Co Ltd [2006] NSWCA 245 Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) LGRA 51

DATES OF HEARING: 5 June 2008 6 June 2008

APPLICANT Mr M Seymour SOLICITORS LEGAL REPRESENTATIVES: Diamond Conway RESPONDENT Mr G Newport SOLICITORS Bull Son & Schmidt

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Her Honour: In these Class 4 proceedings the Applicant, who lives at 77 Beechworth Road, Pymble, is seeking a declaration and consequential orders in relation to his neighbour, the Respondent, who lives at 75 Beechworth Road, Pymble. At issue is whether the Respondent has managed his property as an inner protection area in accordance with NSW Rural Fire Service, Planning for Bushfire Protection - A Guide for Councils, Planners, Fire Authorities, Developers and Home Owners, (Canberra, 2001). Both parties' properties back onto bushland in Rolfe Park which is managed by Ku-ring-gai Council (the Council).

2 In issue is a row of Leylands Cypress trees (cypress pines) just inside the rear side boundary of the Respondent's land on the Applicant's side which were planted in or about 2001. The Applicant seeks orders that these trees be removed. When development consent for alterations and additions to his house at 75 Beechworth Road was obtained by the Respondent from the Council in October 2003, condition 27 was imposed which stated: The entire property shall be managed as an inner protection area as outlined within Planning for Bushfire Protection 2001.

3 The Applicant alleges in these proceedings that the Respondent has failed to comply with condition 27. 4 Condition 28 was also imposed which stated: To prevent continuous canopy cover of the Leylands Cypress every second and third tree is to be removed along both side boundaries in accordance with the NSW Rural Fire Service recommendation. 5 The plans approved by the Council at that stage showed cypress pines located at intervals along both side boundaries. No vegetation plan was otherwise approved as part of the consent. Condition 28 was later removed when a s 96 modification application was granted by the Council on 31 January 2007. The amended plans approved at that time do not show any cypress pines but different trees at intervals along the boundary. No separate vegetation plan was approved. 6 There is limited evidence of what has occurred on the Respondent's property as neither party has sworn an affidavit in the proceedings. The evidence of what has occurred is presented largely through the affidavit of Mr McMonnies, a bushfire prevention expert, called by the Respondent. He gave evidence about advice given to the Respondent in 2003 about bushfire prevention on the property. In 2007 he gave further advice about what could be done in relation to the management of the cypress pines to minimise bushfire risk, inter alia. Photographs attached to his affidavit show the cypress pines growing close together and forming a hedge in November 2003. The hedge reached a substantial height of many metres at some stage over the next couple of years. 7 According to Mr McMonnies' affidavit at par 18, on 6 December 2007 he observed a cypress pine and "weeping lilly pilly" hedge approximately 16m in length, 3m high and 0.75m along the parties' common boundary. The hedge was located 3.5-4.5m clear of the alterations on the Respondent's dwelling and was not part of the external bushland. At the other end of the hedge a 3m gap between the bushland at the rear in Rolfe Park and the cypress pine hedge has been created with three lilly pilly trees planted in that space. Several sprinklers have also been installed in the hedge 2-3m above ground which are fed from a pump. The rear yard swimming pool can also feed the water supply. When operating the sprinklers adequately soaked the hedge and part of the Applicant's brushwood fence in Mr McMonnies' view. There is adequate signage for fire services identifying that the pool is a static water supply and indicating the position of the sprinkler valves. Photographs dated 20 November 2007 showing these measures are also attached to his affidavit. Planning for Bushfire Protection 2001 8 Condition 27 refers to Planning for Bushfire Protection 2001 (PBP). This document was produced by the NSW Rural Fire Service to provide necessary planning considerations for residential use in areas likely to be affected by bushfire events. Its provisions should be taken into consideration under s 79C of the Environmental Planning and Assessment Act 1979 (the EPA Act) when determining a DA for, inter alia, infill development as is the case here. It refers to the establishment of an asset protection zone (APZ) as a buffer zone between the development and the hazard. An APZ can include an inner protection area and outer protection area. An inner protection area is located immediately around a dwelling. The purpose of an inner protection area is to ensure that the presence of fuels which could become involved in a fire are minimised close to a development. PBP states in relation to fuel loadings that: The performance of the inner protection area must be such that: · there is minimal fire fuel at ground level which could be set alight by a bushfire; and · any vegetation in the Inner Protection Area does not provide a path for the transfer of fire to the development, that is, the fuels are discontinuous. The presence of a few shrubs or trees in the Inner Protection Area is acceptable provided that they: · do not touch or overhang the building; · are well spread out and do not form a continuous canopy; · are not species that retain dead material or deposit excessive quantities of ground fuel in a short period or in a danger period; and · are located far enough away from the house so that they will not ignite the house by direct flame contact or radiant heat emission.

(The Amended Points of Claim (APOC) par 11 sets out the last four bullet points as those matters which the Respondent is not complying with in relation to condition 27. The Applicant does not press the first bullet point concerning touching or overhanging the building)

9 PBP refers to vegetation management in APZs and states at 6.2.1 (p 16): To produce a garden that does not contribute to the spread of bushfires, it is necessary to plan the layout of the garden beds and take an active decision to minimise certain features in favour of other features; … · plant trees such that - the branches will not overhang the roof; - the tree canopy is not continuous; and - there is a windbreak in the direction from which fires are likely to approach. … Expert evidence 10 The Applicant relied on the evidence of Mr Swain, a bushfire control expert, who considers cypress pines are unsuitable and not in conformity with PBP because it is a tree which produces excessive quantities of fuel, retains dead material and is combustible. His views were informed by studies made after the major bushfires in Canberra in 2003. The Respondent relied on the expert evidence of Mr McMonnies and Mr Eadie, bushfire control experts, who considered the measures in place on the Respondent's property did comply with PBP. With ongoing maintenance of the hedge to limit its height, remove dead wood and ground fuel on a regular basis, these measures are adequate. The sprinklers installed were added protective measures in their view. 11 There was joint conferencing by the experts. They commented on the three bullet points from PBP raised in the APOC par 11. They agreed the cypress pine hedge was a continuous canopy. Mr McMonnies and Mr Eadie considered the hedge was sufficiently separated from the Respondent's dwelling and the rear bushland to be discontinuous with the fire source at the rear and therefore satisfactory under PBP. Mr Swain considered there was a risk of ignition as a result of the existing hedge and that the separation from the dwelling was not sufficient. On whether the cypress pines were a species that retains dead material or deposits excessive quantities of ground fuel in a short period, Mr Swain considered they were of that type and were too close to the dwelling to prevent ignition by direct flame or radiant heat emission. While Mr McMonnies and Mr Eadie agreed that the cypress pines were a hedge with a continuous canopy, they considered the hedge was located far enough from the dwelling and the bush at the rear so that it was discontinuous. They did not consider the dwelling would be likely to be ignited by direct flame contact or radiant heat emission. 12 Mr McMonnies and Mr Eadie agreed that the pines were acceptable provided a regular ongoing maintenance regime was implemented in accordance with the requirements for an inner protection area specified in s 4.2.2(b) of PBP. This included maintaining the hedge at a fixed height and maintaining the substantial gap between the Respondent's dwelling and the rear bushland, regular pruning of dead material in the hedge and removal of ground fuel. A landscape management plan with appropriate protocols was needed and/or a s 88B instrument to ensure the obligation continued to be implemented by the Respondent. Mr Swain considered the cypress pines should be removed and a different species of tree planted at intervals if so desired. Applicant's submissions 13 The Applicant's primary case is that when condition 27 was imposed in October 2003 the Respondent was then required to manage his property in accordance with condition 27. He should have removed the cypress pines then. That obligation commenced from the date of development consent because s 83(1)(a) of the EPA Act specifies that is the date from which the consent becomes operative and effective. Condition 27 relates to the whole of the Respondent's property and there was a use of that property for residential purposes as at October 2003. While a "passive" use may not amount to an unlawful act an "active" use can constitute the carrying out of development; Minister Administering the Crown Lands Act v New South Wales Aboriginal Council [No 2] (1997) 42 NSWLR 641 per Handley J at 643-645. As the Respondent was occupying his property for residential use when the consent was granted the obligation to comply with condition 27 arose at the date of consent. 14 Whether there has been "physical commencement" of the work approved under a development consent required to prevent a consent lapsing under s 95 of the EPA Act, is not the test for the date on which a consent becomes enforceable. A use may commence without any physical works being required. The enforcement of an operative and effective consent does not need to await the subjective decision of the consent holder to "activate" the consent. Further, a development need not be "complete" in order to ground an obligation to comply with conditions as some conditions require compliance in the course of carrying out development; Rao v Canterbury City Council (2000) 112 LGERA 360 at [20]-[21] per Mason P. 15 Condition 27 required the Respondent to manage his property in a certain way. "Manage" is defined in the Macquarie Dictionary, Revised Third Edition 2001 inter alia as "to succeed in accomplishing a task, purpose, etc". 16 The Applicant addressed the provisions of PBP in some detail and emphasised that it was directed to the reduction of fire hazard based on planning for protection measures assuming maximum hazard. The three matters identified in the APOC par 11 were required to be complied with, that is, the presence of shrubs or trees is acceptable if they are well spread out and do not form a continuous canopy, are not species that retain dead material or deposit excessive quantities of ground fuel in a short period or a danger period, and must be located far enough away from the dwelling so that they will not ignite it by direct flame or radiant heat emission. The provisions of PBP required that the Respondent remove all the cypress pines along the boundary as, based on Mr Swain's evidence, those trees are not suitable for a property being managed as an inner protection area. They are a species which retain dead material or deposit excessive quantities of ground fuel. Further, as presently located they form a continuous and unbroken hedge along the boundary and are not well spread out. Despite being presently separated from the dwelling by a 4m gap the hedge still poses an unacceptable risk based on Mr Swain's evidence. The hedge is not located far enough away from the Respondent's dwelling to ensure it will not ignite the dwelling by direct flame contact or radiant heat emission. 17 In the alternative, if the date of the grant of development consent is not the date on which the obligations under the consent came into force, the obligations under the development consent certainly operated once steps were taken to carry it out. Those steps were taken when the application for modification of the development consent was made and the commencement of building work occurred sometime in February 2007. There is evidence of failure of the Respondent to manage his property, as can be seen in the photograph taken by Mr Swain in October 2007 which shows the hedge has not been kept at the lower height of 3.5m - 4m, and formed a continuous canopy on that date.

Respondent's submissions 18 A development consent must be construed in order to give it practical effect and to avoid uncertainty; Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531, Westfield Management Limited v Perpetual Trustee Co Ltd [2006] NSWCA 245. 19 As a general rule an over-technical approach to the meaning of the language used in conditions attached to consents is not called for; Weigall Constructions Pty Ltd v Melbourne and Metropolitan Board of Works (1972) 30 LGRA 333 at 351, Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) LGRA 51 at 56 and Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227 per Lloyd J at [12]: It must be remembered, however, that a development consent such as the present one, is not a document drafted by lawyers. It was drafted by town planners, to be read by town planners and non-legally trained people. The development consent and the conditions must be read in a common sense way so as to give effect to the obvious intention of the draftsperson. 20 The Court can have regard to objective circumstances, including the physical circumstances and the plans accompanying the development application. Such circumstances may include the imposition of one condition and deletion of another; Westfield Management Ltd v Perpetual Trustee Company Ltd at [42]. 21 The Applicant has the onus of proving all the necessary facts necessary to enable the declaration to be made. Firstly, the Applicant must establish that as a matter of construction condition 27 compels compliance with the matters pleaded in the APOC par 11. Secondly, the Applicant must prove that the Respondent has failed to comply with the requirements of the PBP. Thirdly, the Applicant must establish that the measures implemented by the Respondent fail to provide adequate bushfire protection to the Respondent's property. 22 Condition 27 was imposed after consultation with the Commissioner of the NSW Rural Fire Service as provided by s 79BA(1)(b) of the EPA Act who suggested what is now condition 27 (see annexure C to Mr McMonnies' affidavit). As strict compliance with particular measures was not required in the condition, the inference can be drawn that fire protection can be achieved by measures other than by requiring strict adherence with prescriptive measures. The Council approved condition 1 referring to plans which included cypress pines on the boundary described as "Leylands green screening trees" 25m in length. Condition 28 which had required removal of every second and third cypress pine was subsequently removed. This suggests it is unlikely the Council intended that such trees be removed. 23 PBP does not contain exclusive prescriptions for how fire safety measures are to be implemented. It is performance based in intent. Alternative means can be used to achieve the purpose of the document, as identified in relation to in-fill development at cl 4.6 Ch 4 col 1 and 2 at p 23 for in-fill development, cl 4.6 at p 15. The measures taken by the Respondent as identified by Mr McMonnies' affidavit at par 29 satisfy the policy. 24 If the policy does have to be applied strictly as argued by the Applicant then it has been met in any event. The cypress pine hedge does not touch or overhang the building (which is not pressed by the Applicant). The hedge is discontinuous with the building and the fire source, the bushland at the rear of the property, so there is not a continuous canopy. The trees do not deposit excessive amounts of ground fuel in a short period and the deposits would be minimal. The Respondent has undertaken a maintenance program for the hedge since at least November 2007 and has installed sprinklers which ensure that the performance requirements of PBP are met. 25 The obligation to comply with condition 27 arose when the development built pursuant to the modified consent was occupied. This occurred on an interim basis in March 2007 and the final occupation certificate was issued on 3 June 2008. While a consent becomes effective from the date endorsed upon the consent (s 83(1)(a)) no obligation to commence the consent flows from its grant. A person can hold a number of mutually inconsistent development consents for the same site; Waverley Council v Hairis Architects (2002) 123 LGERA 100. The Applicant's approach leads to irrational results as a person who obtains a consent but leaves the possibility of future implementation to a later date will nevertheless be in breach of planning law. 26 There is no evidence of any ongoing breach of condition 27. The Applicant relied on a photograph attached to the affidavit of Mr Swain taken in October 2007 which shows the cypress pine hedge had not been trimmed back to the recommended height of 3.5m - 4m. The photographs attached to Mr McMonnies' affidavit make clear that occurred in or about December 2007. Mr McMonnnies also identifies the other measures he viewed on his site visit in November 2007. There is no other evidence to suggest that the appropriate management of the property under PBP is not occurring.

Finding 27 The Applicant alleges a breach of the EPA Act based on the failure of the Respondent to comply with condition 27 because s 76A of that Act has not been complied with. Section 76A applies where an environmental planning instrument provides that development must be carried out in accordance with a development consent. These are Class 4 proceedings in which the Applicant bears the onus of proving on the balance of probabilities the facts on which he bases his claim for relief namely that there has been a failure by the Respondent to manage his property as required by condition 27. This can be contrasted with Class 1 merit proceedings where the Court may be determining for itself what is the best way in which PBP should be applied. That distinction needs to be borne in mind in these Class 4 proceedings given the expert advice presented to the Court was in part directed to opinion on how PBP should be implemented. As discussed in the next paragraph, condition 27 is a broad provision and the requirements it imposes are undefined in the condition.

Meaning of condition 27 28 Condition 27 requires the Respondent to manage his property as an inner protection area under the PBP. The precise meaning of "manage" and the requirements it imposes for his property are not specified (APOC par 11). Referring to a dictionary for a definition as the Applicant did does not assist to resolve what the term means in the particular context of this development consent. I agree with the Applicant's submission that the condition imposes an ongoing obligation on the Respondent to manage his property. 29 The Applicant's approach was to say the three matters it had identified in the APOC at par 11 were prescriptive requirements which had to be met in the way identified by Mr Swain. This was argued to be the only approach to management under condition 27 open to the Respondent. As the Respondent submitted (par 19), however, established principles of construction of development consent conditions require that these be given effect in a practical way and without undue technicality. While the Respondent emphasised in submissions that the Court must give effect to the draftperson's intentions, relying on Kendall, that case and the other cases referred to by the Respondent state that a development consent must be construed on its face to give it effect. 30 The consent as it currently stands after modification by deletion of condition 28, inter alia, provides no indication about what is intended in relation to the vegetation on the Respondent's property beyond the broad provisions of condition 27. 31 The obligation to comply with the condition inevitably gives rise to subjective considerations as the condition provides no detail on what is required by "manage". The PBP is not prescriptive in the way submitted by the Applicant. Rather it provides general guidance on what must be achieved in relation to managing the land to achieve bushfire protection. Precisely how that is done is left up to the consent holder to consider in the context of his property. 32 While Mr Swain's evidence is that in his expert opinion cypress pines should not have been planted at all, Mr Eadie and Mr McMonnies consider the measures in place are satisfactory and meet the performance required by PBP, provided the maintenance measures are implemented on an ongoing basis, as condition 27 requires. I do not agree with the Applicant's argument that the only means of complying with condition 27 are those measures identified by Mr Swain. 33 I consider the measures implemented by the Respondent as identified in Mr McMonnies' evidence do satisfy the requirement to manage the property under PBP. Accordingly a failure to properly maintain those measures could give rise to a breach of condition 27. Not removing the cypress pines does not.

When did condition 27 take effect? 34 A further issue to determine is when the obligation to comply with condition 27 arose for the Respondent. The Applicant relies on s 83(1)(a) of the EPA Act to argue that the date of consent (21 October 2003) is the date from which all the rights and obligations under the consent immediately operated because that is when the consent becomes effective. The Applicant also relies on the existing residential use of the property as the effective implementation of the consent from the date it was granted. No authority supporting that approach in the context of the granting of development consent was provided. 35 The authority (par 13) relied on to argue that "active" use may amount to the carrying out of development on land was directed to different considerations under the Aboriginal Land Rights Act 1983. It is not an authority for the proposition advanced in this case by the Applicant. 36 As also recognised in the Applicant's submissions, numerous authorities recognise that more than one development consent can be held over the same land. There is no obligation to implement a development consent once obtained under the EPA Act. Section 95 of the EPA Act provides that development consent for the erection of a building does not lapse if physically commenced before the date it lapses. 37 If the Applicant's argument is correct, the requirement to manage the property as an inner protection area arose in October 2003 and continued regardless of whether the development consent was implemented. If not implemented by the Respondent and the consent lapsed after two years, according to the consent, the obligation would then cease. That suggests the Applicant's primary approach is not correct. 38 In any event, there is no doubt that the development consent was implemented by the Respondent as a final occupation certificate has been issued. In light of the Applicant's alternative submission the argument becomes whether condition 27 had to be complied with when work physically commenced in February 2007, or when the work was completed, being the date of final occupation in June 2008. 39 Conditions imposed in a development consent may well be directed to operate at different times. For example, some conditions will require compliance in the course of carrying out the development the subject of the consent. Condition 27 is a general condition not directed to any particular time period. The preferable view is that unless otherwise stated in the consent, all conditions of consent must be complied with when the consent is implemented. In the case of a residential development that will be when the development has been completed and is fit for occupation. Support for such an approach can be found by inference in s 109H(2) of the EPA Act which states that an occupation certificate must not be issued until all the preconditions to the issue of the certificate specified in the development consent have been met. That suggests there are highly likely to be conditions in a consent which do not become effective as soon as the consent is granted. 40 Adopting that approach, as the Respondent argued in this case, means that the obligation to comply with condition 27 arose when the certificate of final occupation was issued in June 2008. This is relevant in determining if a breach of condition 27 has occurred or is ongoing.

Has the Respondent failed to comply with condition 27? 41 In light of my conclusion that condition 27 had to be complied with from the time of the issue of the occupation certificate, evidence of any breach must arise at or after that date, rather than from October 2003 or the date of commencement of building in February 2007. These proceedings were commenced on 5 November 2007. I have held at par 31-33 that compliance with condition 27 did not mean that all the cypress pines had to be removed. The measures taken by the Respondent in relation to the cypress pine hedge as outlined at par 7 demonstrate that the property has been managed for bushfire protection under PBP. 42 The evidence of Mr McMonnies is that the management measures now in place on the Respondent's property were there from 20 November 2007 as that is the date of the photographs attached to his affidavit. The photographs in exhibit F taken the day before the hearing show the hedge trimmed to a certain height relative to the boundary fence and the gap between the corner of the Respondent's house and the hedge. 43 The evidence of Mr McMonnies and Mr Eadie suggests that the maintenance regime identified in par 12 must be actively maintained by the Respondent. The only evidence of a possible breach by the Respondent of the measures considered necessary by Mr McMonnies, and supported by Mr Eadie, is the photograph taken by Mr Swain in October 2007 which shows the hedge much higher than 4m. There is no other evidence of a failure to maintain the hedge at an appropriate height or to undertake any of the other maintenance measures. 44 The experts have suggested that a binding instrument could be imposed on the Respondent in addition to condition 27. In the absence of evidence showing an ongoing failure to maintain the cypress pine hedge, there is no legal basis for my requiring such a measure in these proceedings (nor is it clear that I would have power to impose such an instrument in any event).

Conclusion 45 The evidence of the Applicant does not establish an ongoing breach of condition 27 which is required to justify the declarations and orders sought by the Applicant. I therefore decline to make the orders sought by the Applicant. The Class 4 application is dismissed. 46 As costs generally follow the event in Class 4 proceedings, in the absence of disentitling conduct the Respondent would be entitled to a costs order in his favour. As I have not heard any submissions on costs I will not make such an order now but provide the parties with an opportunity to make submissions on costs in a short time frame if they wish to do so.

Orders 47 The Court makes the following orders: 1. The Applicant's Class 4 application is dismissed. 2. Costs are reserved.

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.

(2000) 112 LGERA 360

(2002) 123 LGERA 100

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