Abboud v Hornsby Shire Council

[2014] NSWLEC 1133

Land and Environment Court

New South Wales

Medium Neutral Citation:	Abboud v Hornsby Shire Council [2014] NSWLEC 1133
Hearing dates:	23,24 June 2014
Decision date:	01 July 2014
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	The appeal is dismissed
Catchwords:	SUBDIVISION: SEPP 1 objection; environmentally sensitive land
Legislation Cited:	Environmental Planning and Assessment Act 1979 Rural Fires Act 1997 Threatened Species Conservation Act 1995 State Environmental Planning Policy No. 1 - Development Standards Hornsby Local Environmental Plan 1994 Hornsby Local Environmental Plan 2013
Cases Cited:	Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 Wehbe v Pittwater Council [2007] NSWLEC 827 Winton Property Group Limited v North Sydney Council [2001] NSWLEC 46
Category:	Principal judgment
Parties:	Ms Ana Abboud (Applicant) Hornsby Shire Council (Respondent)
Representation:	Applicant: Mr Peter Rigg (Solicitor) Respondent: Mr Adam Seton (Solicitor) Applicant: Norton Rose Fulbright Respondent: Marsdens Law Group
File Number(s):	10060 of 2014

Judgment

1. COMMISSIONER: In March 2013 the applicant purchased a two hectare property in Quarry Road, Dural. The property is traversed by a 20m wide unformed Crown road reserve. Within the Crown road reserve is a 3.0-3.5m wide dirt track that serves the applicant and the owners of two other properties to the south.

1. In July 2013 the applicant lodged development application DA/720/2013 for the Torrens Title subdivision of the 2ha lot into two lots. Hornsby Shire Council refused the application on 6 December 2013. The applicant appeals council's refusal under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

1. The proposed lots are either side of the Crown road reserve. Proposed Lot 1 to the east has an area of 0.815 ha and contains an existing dwelling. Proposed Lot 2 to the west of the road has an area of 1.185 ha and is currently vacant.

1. The acknowledged purpose behind the proposed subdivision is the creation of another lot on which a dwelling could be constructed. The plans show the indicative location of a dwelling on proposed Lot 2 and the location of an access driveway off the Crown road. The bush fire assessment has been undertaken on the basis that a dwelling would eventually be erected on the site.

1. As the size of the proposed lots is less than the size specified in the relevant Local Environmental Plan, the applicant has lodged an objection in accordance with State Environmental Planning Policy No. 1 - Development Standards (SEPP1).

The site and its locality

1. The site is an irregularly shaped lot to the south of Quarry Road. It was created in 1997 by the subdivision of a larger property to the west. It is effectively bifurcated by the Crown road reserve. Within the road reserve is an unsealed dirt track with a drainage ditch on its western side. The eastern portion of the site (proposed Lot 1) has been heavily cleared of vegetation and contains an existing dwelling.

1. The western side of the road (proposed Lot 2) has also been partially cleared and was the site of an unauthorised nursery established by a previous owner. There are about 20 or so standing dead trees throughout the cleared section and some remaining living trees. At the time of the hearing, the cleared section had been slashed.

1. The cleared section of proposed Lot 2 extends to wire fences on the northern and western boundaries. As no detailed survey of this portion of the applicant's property was provided, there is uncertainty as to whether the fences, in particular the western fence, are on the cadastral boundaries.

1. To the west of the fence the land is relatively undisturbed bush land which drops away to a heavily vegetated gully. The southern portion of proposed Lot 2 is also relatively undisturbed bushland comprising a range of canopy species of various age classes, and relatively dense mid and under storeys. The southern portion slopes to the south/southwest. Evidence in the ecological survey indicates the southern portion contains a number of rocky outcrops.

1. The land to the east, west and south of the site is bushland that provides direct connectivity to Berowra Valley Regional Park to the east and south, and to Dural Park to the northwest. Surrounding development, generally to the north, is rural residential in character with low scale agricultural use.

1. The site supports two vegetation communities - Peppermint Angophora Forest and Bloodwood-Scribbly Gum Woodland. The site is considered to provide habitat for a number of species listed under the Threatened Species Conservation Act 1995 (TSC Act) including Tetratheca glandulosa and the Red-crowned Toadlet (Pseudophryne australis). A number of other notable habitat features are found on the site including hollow-bearing trees, sugar glider feed trees, drainage lines, and rocky outcrops suitable for use by a range of mammals.

1. The site is identified as bush fire prone land under the Rural Fires Act 1997. As such, the Rural Fire Service has issued a bush fire safety authority under s 100B of the Rural Fires Act 1997. The following conditions are required:

• At the issue of a subdivision certificate and in perpetuity, the entire property of Lot 1 shall be managed as an inner protection area (IPA) in accordance with s 4.1.3 and Appendix 5 of Planning for Bush Fire Protection 2006 (PBFP).
• At the commencement of building works and in perpetuity Lot 2 shall be managed as an asset protection zone (APZ) as detailed in the Bushfire Protection Assessment & APZ Design prepared by Ecological, 21 June 2013.
• Adequate provision of water and appropriate location of gas and electricity services;
• Property access roads to comply with s 4.1.3(2) of PBFP.

The issues

1. Council contends that the development application should be refused on the following grounds:

• The proposed subdivided lots do not comply with the development standards for lot size in cl. 14 Hornsby Local Environmental Plan 1994;
• The SEPP 1 objection in regards to the non-compliance with the development standard is not well founded nor does it demonstrate that compliance with the standard is unreasonable or unnecessary in the circumstances;
• The proposal does not comply with the objectives of the Rural BR (Small Holdings) Zone or the Environmental Protection B (River Catchment) Zone;
• The proposal would have unacceptable and adverse, direct and indirect cumulative impacts on remnant bushland and threatened species;
• The proposal is inconsistent with the subdivision controls in the Rural Lands Development Control Plan;
• The site is constrained and unsuitable for subdivision;
• Approval would create an undesirable precedent for undersized rural lots and properties bisected by 'paper' and other roads;
• There is insufficient information in regards to the required upgrade of the Crown Road to provide access to the site; and
• The proposal is not in the public interest in regards to the undersized allotments, incompatibility with the subdivision pattern and the undesirable precedent.

The controls

1. The development application was lodged with council when Hornsby Local Environmental Plan 1994 (HLEP 1994) was in force. The majority of the site is zoned Rural BR (Small Holdings - Rural Landscapes) Zone. Parts of the eastern boundary and the south-western corner are zoned Environmental Protection B (River Catchment) Zone.

1. Amongst other things, Zone BR permits, with consent, dwelling-houses and rural workers' dwellings.

1. Hornsby Local Environmental Plan 2013 (HLEP 2013) came into force in October 2013 after the DA was lodged. Notwithstanding the provisions of cl. 1.8A which requires that an application lodged before the commencement of the plan must be determined as if the plan had not commenced, HLEP 2013 must be considered as a 'proposed instrument' under s 79C(1)(ii) or in the public interest under s 79C(1)(e) (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142).

1. Under HLEP 2013, the equivalent zones are RU2 Rural Landscape and E3 Environmental Management. The objectives of Zone RU2 are:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resources base.
• To maintain the rural character of the land.
• To provide for a range of compatible land uses that support primary industry, including low-scale and low-intensity tourist and visitor accommodation and the provision of farm produce direct to the public.
• To ensure that development does not unreasonably increase the demand for public infrastructure, services or facilities.

1. Amongst other things, Zone RU2 permits, with consent, dwelling-houses, rural workers' dwellings, and secondary dwellings. Clause 5.4(9) states that a secondary dwelling must not exceed whatever is the greater area - 60m2 or 20% of the total floor area of the principal dwelling.

1. Clause 4.1(3) HLEP 2013 requires that any lot resulting from the subdivision of land must not be less than the minimum size shown on the Lot Size Map. RU2 zone has a minimum lot size of 2ha, zone E3 has a minimum lot size of 40ha.

1. Clause 4.2 considers rural subdivision; it states:

(1) The objective of this clause is to provide flexibility in the application of standards for subdivision in rural zones to allow land owners a greater chance to achieve the objectives for development in the relevant zone.

(2) This clause applies to [relevantly]

(b) Zone RU2 Rural Landscape

(3) land in a zone to which this clause applies may, with development consent, be subdivided for the purpose of primary production to create a lot of a size that is less than the minimum size shown on the Lot Size Map in relation to the land.

(4) However, such a lot cannot be created if an existing dwelling would, as the result of the subdivision, be situated on the lot.

(5) A dwelling cannot be erected on such a lot.

Note. A dwelling includes a rural worker's dwelling.

1. Clause 4.6(6) - Exceptions to development standards is relevant.

(6) Development consent must not be granted under this clause for subdivision in [relevantly] Zone RU2 Rural Landscape, Zone E3 Environmental Management if:

(a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or

(b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.

1. Hornsby Development Control Plan - Rural Lands (HDCP-RL) applies to the site. The relevant strategies concern population and rural objectives, performance criteria and prescriptive measures. The Subdivision measures reinforce the minimum lot sizes for the particular zones. Other elements raised by council are effluent disposal, flora and fauna protection and land sensitivity.

The hearing and the evidence

1. The hearing commenced on site. Two local residents made oral submissions against the proposal. The issues raised include:

• Non compliance with the development standards for lot size;
• The possible precedent it may set for others with road reserves across their properties;
• Further development may have fire safety risks;
• Likely detrimental impacts on flora, fauna and waterways; and
• No consideration of the principle of inter-generation equity.

1. The site was inspected with most attention on proposed Lot 2. Council's ecologist, Mr Alex Fraser assisted the Court. The applicant's ecologist was not requested to be on site.

1. Evidence in Court was provided for the applicant by Mr Andrew Martin (Planner) and Mr Will Introna (Ecologist) and for the council by Mr Neil Kennan (Planner) and Mr Alex Fraser (Ecologist).

SEPP 1 objection

1. The parties agree that the SEPP 1 objection is a threshold issue. The aim of SEPP1 is to provide flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act.

1. In Winton Property Group Limited v North Sydney Council [2001] NSWLEC 46, Lloyd, J at [26] considers the five questions to be answered when considering a SEPP 1 objection:

1. Is the planning control in question a development standard?

2. What is the underlying object or purpose of the standard?

3. Is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the objects specified in section 5(a)(i) and (ii) of the EPA Act?

4. Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?

5. Is the objection well founded?

1. The relevant development standard is found in Clause 14 Density - of Part 4 Special controls, HLEP 1994. The objective of this clause is:

To provide for the development of land at a density that is in accordance with the land's environmental capacity and zone objectives.

Subdivision

(1) Land may be subdivided, but only with the consent of the Council.

(2) If a subdivision creates an allotment wholly within one of the zones specified in the table below, the allotment must have at least the minimum area set by the table for the an allotment in the zone. If a subdivision creates an allotment parts of which are within different zones, at least one which is a zone specified in the table below, the allotment must have at least so much land within a zone specified in the table as is the minimum area set by the table for an allotment in the zone...

1. The minimum allotment size for Zone BR is 2ha, and 40ha for Environmental Protection B. The majority of the site is zoned Rural BR and therefore the minimum lot size is 2ha.

1. Therefore the answer to question 1 is the 2ha allotment size is a development standard. The proposal results in two under-sized lots; proposed Lot 1 is 0.815ha and proposed Lot 2 is 1.185ha, hence the need for the SEPP 1 objection.

1. In answer to question 2, the underlying object or purpose of the standard is to provide for the development of the land at a density that is in accordance with the land's environmental capacity and zone objectives. As the majority of the site is zoned Rural BR (Small Holdings - Rural Landscapes) Zone, the objectives are:

(a) to restrain population growth and maintain the rural character of the area.

(b) to provide for a range of compatible land uses, including agriculture, which maintain the rural environment of the area and support the urban populace.

(c) to ensure development is carried out in a manner that improves the environmental qualities, and is within the servicing capacity, of the area.

1. Mr Martin prepared the SEPP 1 objection that accompanied the development application (Exhibit B, Tab 5). In his written objection he states that, the underlying objectives relate "to the minimum area upon which a dwelling can be erected so as to retain a rural character and lifestyle". He further states on p.7, that the proposal satisfies the zone objectives because:

• The proposal maintains the rural character of the area. The additional dwelling would not cause a noticeable rise in population levels.
• The proposal does not lead to adverse amenity or environmental impacts.
• The proposal retains visual separation to the adjoining properties and surrounding rural lands.
• No significant trees are affected by the proposal. Any future tree removal required (if any) as part of a future DA can be offset (detailed landscape plan to be provided as part of the future dwelling DA).
• The breach [of the standard] is simply a result of the existing site conditions and constraints and formalises the current situation. There is no potential for the road to be removed from the site.
• A future dwelling on the lot will not alter the rural residential character as it can be sited so as to maintain the general character of the area.
• The subdivision allows for the orderly and economic use of the land where the site is capable of achieving the rural zone objectives notwithstanding a site area less than the minimum 2ha. The site constraints remain the same under a Torrens Title format simply because the road currently dissects the properties at present.

1. In the joint statement prepared by the planners (Exhibit 6), Mr Martin further details his opinion as to how the proposal meets the zone objectives and supports the SEPP 1 objection. He states at the relevant paragraphs of the joint report:

• [given the location of the Crown Road] the two existing parcels of land will remain in their current configuration with the difference being ownership [1.5.1].
• The rural character as stated in the Facts and Contentions is rural residential. It follows that the density would be appropriate post approval as the rural residential character is enhanced by virtue of the potential to create a new dwelling surrounded by natural bushland [1.5.2].
• the main dwelling and ancillary development is located on the proposed Lot 1 there is no connection with the western part of the site as identified by Lot 2. Approval of the SEPP 1will regularise site conditions and allow for a more viable use of Lot 2. Currently there is no incentive for the owner to manage Lot 2 lands (erosion and weed propagation and infestation noted by Ecological Australia) which is in contrast to the actual zone objectives which require the use of the land to 'maintain the rural environment' and ensure development is "carried out in a manner that improves the environmental qualities". Under a Torrens Title approval there is more incentive for the owner of Lot 2 to achieve objectives. Further the granting of the subdivision consent and future DA consent provides an opportunity to impose conditions that would not otherwise be available. These consent conditions improve environmental outcomes and assist in the achievement of zone objectives. Separate ownership will make management of the land less difficult and a future dwelling would, in my opinion, make it less likely that weed infestation and sedimentation will occur [1.5.3]

1. In paragraph [1.6] of the joint report Mr Martin summarises the particular circumstances of the site, which in his opinion justify the proposal. He also makes reference to other non-compliant subdivisions approved by council. To support his position, Mr Martin quotes the Draft North Subregional Strategy, which aims to increase housing stock by 11,000; however this was withdrawn in Court, as the strategy does not consider rural zones.

1. Mr Rigg, for the applicant, presses the inclusion of 'secondary dwellings' as a use permitted with consent on RU2 zoned land under HLEP 2013 as indicative of the council's desired future character for the zone to allow additional dwellings and therefore a higher density. In that sense, subdividing to permit another dwelling on proposed Lot 2 would have the same effect as allowing a secondary dwelling on the existing site. The only difference would be that the dwellings on the new lots would be in separate ownership. Mr Rigg stated that the applicant would agree to the imposition of conditions/restrictions as to user limiting any future development on the lots to a single dwelling, and any dwelling on Lot 2 to a maximum of 20% of the size of the existing dwelling on the site.

1. Mr Seton, for the council, contends that following this logic, up to four dwellings could be potentially located on the two lots. In any event, he submits that a density of one dwelling per hectare cannot achieve the same character as one dwelling per two hectares. Mr Seton maintains that under HLEP 2013, the applicant could submit a development application for a secondary dwelling on the site, which would then be assessed on its merits. He also notes that under HLEP 2013, clauses 4.2 and 4.6(6) would prohibit the proposal.

1. Given that the construction of any future dwelling would require the extensive clearing of bushland, which provides habitat for threatened species, to establish an inner protection zone, Mr Seton maintains that the proposal cannot improve the environmental qualities of the site and therefore cannot meet that particular zone objective.

1. Question 3 considers whether compliance with the development standard tends to hinder the objects specified in section 5(a)(i) and (ii) of the EPA Act. These objects are:

(a) to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment.

(ii) the promotion and co-ordination of the orderly and economic use and development of the land.

1. Mr Martin's position appears to be that the natural resources of the site will be better managed through subdivision and that the orderly and economic use of the land is best served by enabling the creation of two lots on parts of the site that will be forever separated by the Crown road.

1. The 4th question to be answered is whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. In Wehbe v Pittwater Council [2007] NSWLEC 827, Preston CJ at [42]-[50] considers the various ways in which this proposition may be established. At [42] His Honour states that "The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard." This is because the "rationale is that development standards are not ends in themselves but means of achieving ends" (at [43]). At [47] His Honour considers the fourth way is to establish that the development standard has been abondoned by the council's own action in granting other consents which depart from the standard.

1. Mr Martin has adopted the commonly used approach, and by way of the reasons he provides in paragraphs [32] and [33] he considers that compliance with the 2ha lot size development standard is both unreasonable and unnecessary in the circumstances of this matter. In summary, he maintains that the site has the environmental capacity to support two dwellings; the proposal contemplates a situation that is not unlike the arrangement of dwellings on Quarry Road but in some ways is more acceptable in that any new dwelling on Lot 2 would be unlikely to be seen from Quarry Road; the proposal is no different to what is permissible under HLEP 2013 (i.e. a possible secondary dwelling) and therefore council's density and population objectives have little weight; the rural character will be retained and to some extent enhanced by the unsealed nature of the Crown road; the likely use of the land for residential purposes is compatible especially as proposed Lot 2 is accepted as being incapable of use for agricultural purposes; and, the environment will be improved by subdivision and the imposition of conditions. In Mr Martin's opinion, the main constraint on the site is the location of the Crown road. In his opinion it acts as a de facto subdivision because it results in the physical separation of private land, and is a permanent physical division of land that reduces the efficiency and capability of the owner's use of the land.

1. Although Mr Martin partially adopts the fourth method in Wehbe and lists other instances in Hornsby Shire where council approved SEPP 1 objections to the minimum lot size, and he cites a case heard by a Commissioner of the Court in Wollondilly Shire that involved severance of land by a road, Mr Rigg did not press these cases and no details were adduced that may have added weight to the applicant's position. Mr Seton did not dwell on the cases but maintains that every case must be dealt with on its own merits and therefore little is to be achieved by considering them.

1. Mr Kennan's opinion is that Mr Martin has not provided sufficient environmental planning grounds to justify the SEPP 1 objection. In his view there is nothing unreasonable or unnecessary about maintaining the 2ha minimum lot size. Rather than restrain population growth, maintain the rural character, and improve the environmental qualities of the site, Mr Kennan considers the proposal will achieve none of those objectives and would likely diminish the environmental qualities of the site.

1. Mr Kennan considers that council's strategic planning has determined the desired future character of the rural residential zone by maintaining the 2ha minimum lot size required in HLEP 1994 and HLEP 2013. In Mr Kennan's opinion the SEPP 1 objection is not well founded in that the development seeks to maximise development on the site without meeting the objectives of the development standard or the zone, and as such, should not be approved.

Findings SEPP 1 objection

1. There is no hiding of the applicant's intent to subdivide the land for the purpose of rural residential development, rather than for agricultural or horticultural purposes. Indeed, Mr Martin's reasons in support of the SEPP 1 objection frequently refer to a future dwelling on Lot 2.

1. The applicant relies to a large extent on the fact that HLEP 2013 permits, with the consent of council, a secondary dwelling on RU2 Zone land, as a way of suggesting that this somehow derogates from the zone and density objectives in the Rural BR (Small Holdings) zone and HLEP 1994 that specifically seek to limit population growth and control density in this zone. I agree with council's position that there is nothing preventing the applicant from lodging a development application for a secondary dwelling under the current LEP. That application would then be assessed on its merits. Indeed, relying on one small element of an instrument that expressly prohibits the proposed subdivision (clauses 4.2 and 4.6(6) in HLEP 2013) does not provide a very good starting point.

1. In considering the applicant's argument, I have considered Preston CJ's rationale in Wehbe at [68]-[70] as the general proposition is similar. The objective in cl. 14 HLEP is to 'provide for the development of land at a density that is in accordance with the land's environmental capacity and zone objectives'. This is achieved through the establishment of minimum lot sizes for the various zones and associated land uses that presumably provide enough land for the described purpose of the zone; for example Rural AA (Large Holdings - Agricultural Landscapes) 10ha, Rural AE (Large Holdings - Extraction) 10ha, Residential AR (Low Density - Rural Village) 500m2, Environmental Protection D (Recreation) 5ha and so on. While each zone permits a range of development, the inherent intent is to maintain the integrity of that descriptive purpose given by the name of the zone.

1. The density control and development standards in cl. 14 are reinforced by the zone objectives. The relevant zone objective for Rural BR (Small Holdings- Rural Landscapes) is (a) - 'to restrain population growth and maintain the rural character of the area'. I can see the applicant's reasoning in suggesting that eventually placing another dwelling across the road from the existing dwelling would appear similar to the location of dwellings on similarly zoned land on Quarry Road. However this rationale relies on the borrowed visual setting of the adjoining bushland in order to achieve the 'rural residential' character. The applicant has no control in determining what might occur on that adjoining land. In my view, the rural character is already achieved by the existing dwelling and associated cleared land. Subdividing for the purpose of adding an additional residence is not a strategy to 'restrain population growth', particularly when the existing lot is of the minimum size for the Rural BR zone and far less than the 40ha minimum for the Environmental Protection B zone that extends onto the lot.

1. Objective (b) for the Rural BR zone is 'to provide for compatible land uses, including agriculture, which maintain the rural environment of the area and support the urban populace'. The planners agreed that proposed Lot 2 is unlikely to be capable of supporting any conventional agricultural activities, however the zone permits many other activities such as animal boarding, aquaculture, intensive animal establishments, and intensive horticulture establishments.

1. A clear theme of the applicant's argument, as expressed by Mr Martin, is that the Crown road provides a major barrier to the applicant's use of the land on the western side of the road.

1. Having visited the site, the Crown road reserve is only discernable because of the dirt track within it. The dirt track is about 3-4m wide and about 20-25m from principal rear western façade of the dwelling on the site. No information was provided as to how many vehicles use the road. The dwelling on the site is accessed off a driveway at the northern end of the Crown road and therefore the use of the section of the road to the west of the dwelling is likely to be limited to the owners of the two properties to the south and their visitors. Therefore it is highly probable that there is very little traffic on the track that would make it difficult or unsafe to use the western portion of the site for any purpose usually desired by anyone purchasing a 2ha rural residential lot. It appears to provide as much of an impediment to anyone on the site as the driveway servicing the dwelling does, given the driveway and the dirt track are about the same width.

1. Therefore I am not satisfied that the applicant has established that subdivision of the site is an appropriate and desirable method of providing a compatible land use which maintains the rural environment of the area and supports the urban populace. As noted in Wehbe at [77] "However, there is nothing unreasonable or unnecessary about the existing allotment remaining at that size.... Indeed, the size of the existing allotment may provide greater flexibility for design of and compliance with development standards and planning controls applicable to development of the land than if the existing allotment were subdivided into tow allotments." In my view, the proposed subdivision for residential purposes is contrary to zone objective (b).

1. The third zone objective (c) is to 'ensure development is carried out in a manner that improves the environmental qualities, and is within the servicing capacity of the area'. The main thrust of the applicant's argument in regards to this objective is that allowing a subdivision for residential purposes and imposing strict conditions for weed and erosion control will result in a better environmental outcome than maintaining the status quo. Mr Martin's statements in [33] indicate there is no incentive for the current owner to undertake these activities.

1. As stated in [12], the Rural Fire Service has issued a bush fire safety authority pursuant to s 100B(1)(a) of the Rural Fires Act 1997. Amongst other things, the authority requires an extensive area of proposed Lot 2 to be maintained as asset protection zone. Figure 3 in the 'Bushfire Protection Assessment & APZ Design' prepared by Eco Logical dated 21 June 2013 shows the APZs approved by the RFS (Exhibit B, Tab 6). The figure shows a 35m wide inner protection area (IPA) along the western boundary and a 20m wide IPA to the south of the proposed available area for a building footprint. To the south of the southern IPA is a further outer protection zone 10-15m wide. Part of the western and all of the southern proposed APZs are within relatively undisturbed bushland.

1. The ecologists agreed that the creation of an IPA would require tree removal and under-scrubbing. The ecologists also agree that the site, in particular the western side of the crown road, provides potential habitat for the listed Tetratheca glandulosa, and foraging, nesting and or breeding habitat for a number of threatened fauna species including Red-crowned Toadlet, Giant Burrowing Frog, Eastern Pygmy Possum and a number of species of bats.

1. While Mr Introna appeared as the applicant's expert ecologist in the Court proceedings, he did not prepare the 'Flora, Fauna and Arborist Report' that accompanied the development application (Exhibit B, Tab 7). That report, dated 21 June 2013, was prepared by Mr Niels Rueegger of Eco Logical. Mr Introna approved the report and visited the site for one to two hours with the person who prepared the Bushfire Protection Report. Mr Rueegger is recorded as having spent six hours on the site on 30 May 2013 - a mild, sunny day.

1. Figure 2 in the Flora, Fauna and Arborist Report indicates that the study area was limited to the area of proposed Lot 2 and did not extend beyond the site boundaries. Unusually, 'the site' is shown as a portion of proposed Lot 2, in particular the most disturbed and cleared portion, and not the entirety of the existing lot. Therefore any references to 'the site' in that report have to be read in that context. The report concludes:

The subject site was surveyed and assessed for the potential impact the creation of the proposed APZ required for the property subdivision would have on threatened species, populations and communities. The proposed direct impact would be the clearing of vegetation for the prescribed APZ. No building design has been proposed as yet and so was not assessed in this report.

The subject site contains a predominately disturbed under and mid storey with remnant canopy trees still present, although 21 trees were dead. The flora and fauna report identified that the subject site contains no EECs. A number of threatened flora and fauna species have been recorded within the locality. One threatened flora species and ten threatened fauna species were considered to have the potential to occur. No hollow-bearing trees were recorded on the subject site, although three were found to the south of the site. The 21 dead trees proposed for removal were predominantly small trees containing no hollows.

Application of the Assessment of Significance [s 5A(2) of the EPA Act] to the threatened flora and fauna species with the potential to occur in the study area determined that none of these are to be significantly impacted by the proposed works provided that the drainage line is protected from sedimentation and riparian vegetation loss....

Given that the proposed works would not significantly impact on species protected under the TSC Act, a Species Impact Statement is not required for the proposed development with respect to matters protected under the TSC Act.

1. The report makes some general and brief recommendations to limit clearing, retain some shrub and tree cover, protect the drainage line by retaining at least 2m of riparian vegetation, install erosion and sediment controls, and manage weeds.

1. In oral evidence, it was confirmed that no targeted surveys of any flora and fauna, including the Red-crowned Toadlet or Tetratheca had been carried out despite the Flora, Fauna and Arborist Report noting that the Red-crowned Toadlet had been recorded about 5m to the east of the site and Tetratheca had been identified 20m to the west of the site with 21 records of it within a 3km radius including five within the same sub-catchment (p.25).

1. It was agreed that the 'drainage line' referred to in the report is the drain beside the unformed track within the Crown road reserve. Mr Introna agreed with Mr Rigg that should the road be upgraded, it would be possible to construct the drainage line to contain suitable breeding habitat for the Red-crowned Toadlet. If left in its current state, Mr Introna stated that the drain would need to be managed to control flows and weeds.

1. Apart from conditions relating to any future dwellings, Mr Rigg confirmed that the applicant would also accept deferred commencement conditions requiring further environmental assessment, and subsequent conditions requiring on-going bushland weed control. He submits that the evidence of the ecologists is sufficient for the Court to uphold the SEPP 1 objection and therefore the appeal, subject to strict compliance with conditions.

1. Mr Seton contends that the Court cannot be satisfied that the proposal will be carried out in a manner that improves the environmental qualities of the site. The creation of the APZ will remove a substantial area of vegetation and, given the inadequacy of the ecological assessment - including the lack of regard to the DECC "Threatened species assessment guidelines: The assessment of significance" and the timing of the survey, there is no certainty that threatened species or populations will not be harmed. The timing of the survey is relevant (a sunny day in late May) as Tetratheca would not have been flowering and the Red-crowned Toadlet is best detected after rain.

1. Mr Seton also submits that the applicant has not put forward any measures to mitigate potential impacts; rather, council has had to consider what measures might be necessary should the Court approve the sub-division. He cites Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 where Preston CJ at [83] states in part: "Ameliorative measures not proposed as part of the development application, but which are imposed afterwards, as conditions of consent or restrictions in construction certificates, are not able to be considered in answering the inquiry as to likely impact. This is because the inquiry required by s 78A(8)(b) focuses on the development and its likely impact before the determination of the application and not afterwards."

1. I agree with the council that the extent of the ecological investigation is pitifully inadequate in very many ways given the number of recorded threatened species within close proximity to the site. In my mind, there is simply no logic in arguing that removing a substantial area of relatively undisturbed bushland that is highly likely to provide habitat for a number of threatened species, in order to provide bush fire protection, ensures that 'development is carried out in a manner that improves the environmental qualities...of the area'. In my view, the proposal will diminish the environmental qualities of the area.

1. The practical effect of creating an inner protection zone will necessitate removing trees to create adequate canopy separation, removing much of the mid and understorey vegetation, and reducing the amount of leaf litter and other debris on the surface. Page 93 of the Flora, Fauna and Arborist Report notes that the Red-crowned Toadlet is "found under logs on soil, beneath thick ground litter, particularly near large trees and in horizontal rock crevices near the ground". While Mr Introna suggested that logs and trees removed for the APZ could be located elsewhere in bushland, I fail to see how this would compensate for the level of habitat removal necessitated by any subdivision for residential purposes.

1. The submission that subdivision and subsequent imposition of strict conditions will achieve better environmental outcomes than currently exist seems to suggest that the current owner is either incapable of or unwilling to maintain their property and the responsibility should, to a large extent, be transferred to the future owners of Lot 2. I am not satisfied that this is a well-founded basis for the SEPP 1 objection.

1. The applicant has failed to establish that strict compliance with the development standard would hinder the objects specified in s 5(a)(i) and (ii) in the EPA Act. To a large extent the applicant relies on the existence of a Crown road reserve on the site as justification for the sub-division and by inference, the achievement of the specified objects. I accept Mr Kennan's oral evidence that there are likely to be hundreds of 'paper' and Crown road reserves in the Hornsby LGA and thousands throughout the State. In this regard I note the findings in Wehbe at [79] - they are apposite to this matter (citations omitted):

79 If the SEPP 1 objection to compliance with the development standard in clause 11(2) were to be upheld for subdivision of this land on the grounds given in the original SEPP 1 objection, there would be little justification for not upholding SEPP 1 objections to subdivision of land of similar size and nature in the locality. These grounds are of a general nature and would be applicable to many sites in the locality. They are not particular to the circumstances of this land. The ad hoc deviation from the development standard in this case on these grounds would, therefore, create an adverse planning precedent for similar action to be taken in relation to other such land. This would affect the integrity of the planning policy embodies by clause 11. This would not be an appropriate use of the dispensing power under SEPP 1.

1. The same rationale applies in this matter; there are many similar situations of lots with Crown road reserves. The development standard in clause 14 is to maintain the character of the particular land use zone and any unsupported deviation from it undermines the planning process.

Conclusion and orders

1. For the reasons given, I am not satisfied that the applicant has established that compliance with the development standard in cl 14 of HLEP 1994 for a minimum lot size of 2ha within the Rural BR (Small Holdings - Rural Landscapes) Zone is unreasonable or unnecessary in the particular circumstances of the matter. Similarly I am not satisfied that the proposal satisfies any of the zone objectives for the Rural BR (Small Holdings - Rural Landscapes) zone. I am not persuaded that the objection is well founded.

1. Therefore, I am not satisfied that the objection under SEPP 1 should be upheld and, as a consequence, the proposed subdivision cannot be approved.

1. This conclusion makes it unnecessary to deal with the merits of the proposed subdivision and the other contentions raised by council.

1. Accordingly, the Orders of the Court are:

(1)    The appeal is dismissed.

(2)   Development Application DA/720/2013 for the Torrens Title subdivision of Lot 1 DP 864941, 46 Quarry Road, Dural into two lots is refused.

(3)   The exhibits are returned.

_____________________

Judy Fakes

Commissioner of the Court

Decision last updated: 01 July 2014