Aesthete No.9 Pty Limited v Blue Mountains City Council - [2023] NSWLEC 1711

Land and Environment Court

New South Wales

Medium Neutral Citation: Aesthete No.9 Pty Limited v Blue Mountains City Council [2023] NSWLEC 1711
Hearing dates: 24-25, 31 August 2022; 17 October 2022; 3 November 2022; 1 December 2022; 22 March 2023; 18 May 2023
Date of orders: 24 November 2023
Decision date: 24 November 2023
Jurisdiction: Class 1
Before: Adam AC
Decision:
The Court orders:
(1) The parties are directed to address the matters raised in this judgment and provide to the Court an agreed set of modified conditions that will form Annexure A, and a consolidated set of conditions that will form Annexure B in Word format on or before close of business on 15 December 2023. An electronic copy of any relevant documents referred and attached to the consent is to be provided to the Court on or before close of business on 15 December 2023.
(2) The Applicant is directed to submit a revised version of the Vegetation Management Plan (VMP), and to provide an electronic copy of the same, to the Court before close of business on 15 December 2023.
(3) The parties are directed to provide by 15 December 2023 either an agreed submission or competing submissions on the resolution of Condition 10 (refer to [295] of the judgment).
(4) Liberty to reapply if Order (1) is not met.

Catchwords:
APPEAL – modification application – deemed refusal – 21-lot residential Torrens title subdivision and associated infrastructure work – whether proposed development substantially the same as that originally approved – site is bush fire prone – bush fire safety authority (BFSA) issued – whole site to be managed as an Asset Protection Zone (APZ) and categorised as an Inner Protection Area (IPA) – whether implementation of requirements specified in BFSA compatible with maintaining the bushland character and biodiversity of the site – redesigned drainage system – whether all of drainage system should be constructed by Applicant before subdivision certificate is issued – how many trees can be retained – requirement for vegetation management plan (VMP) – when should VMP be prepared – conditions

Legislation Cited:
Biodiversity Conservation Act 2016, s 1.5
Blue Mountains Local Environmental Plan 1991, cll 6.3, 10.5, 34.1, Sch 3
Blue Mountains Local Environmental Plan 2015, cll 1.4, 1.8A, 2.6, 4.1E
Blue Mountains Local Environmental Plan 2015 (Amendment No 8)
Conveyancing Act 1919, s 88E
Environmental Planning and Assessment Act 1979, ss 79C, 91, 102 (repealed); 4.15, 4.46, 4.55, 8.9 (current)
Land and Environment Court Act 1979, ss 34, 34C
Rural Fires Act 1997, ss 100B, 100F, 100G
Standard Instrument (Local Environmental Plans Amendment (Land Use Zones) Order 2021
State Environmental Planning Policy No 1—Development Standards
Uniform Civil Procedure Rules 2005, rr 36.16, 36.17

Cases Cited:
Aesthete No.9 Pty Limited v Blue Mountains City Council [2017] NSWLEC 1199
Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 1178
Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 81
Aesthete No 9 Pty Limited v Blue Mountains City Council [2022] NSWLEC 1603
Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No.3) [2015] NSWLEC 75
Arrage v Inner West Council [2019] NSWLEC 85
BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
Carstens v Pittwater Council (1999) 111 LGERA 1
Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280
North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468
Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

Texts Cited:
Blue Mountains Development Control Plan 2015
Franks, A & Franks, S 2011, Nest boxes for wildlife: A practical guide. Corrected edn. Bloomings Books
Macquarie Dictionary, online
NSW Rural Fire Service, Community Resilience Practice Notes 1/12, March 2012 (‘Establishment of Easements for the Purpose of Asset Protection Zones’)
NSW Rural Fire Service, Planning for Bush Fire Protection 2006
NSW Rural Fire Service, Planning for Bush Fire Protection 2019
NSW Rural Fire Service, Standards for Asset Protection Zones, February 2014

Category: Principal judgment
Parties: Aesthete No.9 Pty Limited (Applicant)
Blue Mountains City Council (Respondent)
Representation:
Counsel:
A Pickles SC (Applicant)
T Cork (Solicitor) (Respondent)
Solicitors:
Yates Beaggi Lawyers (Applicant)
McPhee Kelshaw (Respondent)

File Number(s): 2022/44512
Publication restriction: Nil

JUDGMENT

Background history

This matter has a long history.
The original development application (DA S/45/2015) was made by Aesthete No.9 Pty Limited (the Applicant) to the Blue Mountains City Council (the Respondent) for the subdivision of a single lot at 54 Luchetti Avenue, Hazelbrook NSW 2779 (legally known as Lot 1 in DP 598100) into 17 residential Torrens title lots. The proposal also included the demolition of an existing dwelling, construction of a road and associated clearing of vegetation and the construction of drainage works. Although permission was sought for construction of infrastructure, the proposal did not include construction of dwellings, although the purpose of subdivision was for construction of dwellings. If approved, then after completion of subdivision works, the lots would be sold, and obtaining planning approval for construction of each dwelling would be the responsibility of the future individual landholders.
The site is roughly rectangular with a W-E long axis. There are frontages to Luchetti Avenue to the north and Caratel Avenue to the east. The single existing dwelling house, which was to be demolished, is located on the Caratel Avenue frontage, in the southeast corner of the site in the image below.

Figure 1 Aerial view of subject site (Extracted from Ex C Tab 18 p 65)

The application was refused by the Respondent: a decision appealed by the Applicant (Aesthete No.9 Pty Limited v Blue Mountains City Council [2017] NSWLEC 1199 (Aesthete 1). The matter was listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) which was held on 11 August 2016 commencing with a site inspection including hearing from four objectors. The conciliation conference did not result in agreement, so was terminated and the matter was listed for hearing under s 34C of the LEC Act.
At the time of the hearing the relevant local environmental plan in force was the Blue Mountains Local Environmental Plan 2015 (LEP 2015) made on 21 December 2015, commencing on 15 February 2016. The development application was lodged on 4 November 2015, prior to the commencement of LEP 2015. The savings provision in cl 1.8A of LEP 2015 therefore applied and the application was to be determined under the Blue Mountains Local Environmental Plan 1991 (LEP 1991).
At the time the development application was lodged, the draft LEP 2015 had been subject to public display, consultation and receipt and evaluation of public submissions. The revised draft LEP 2015 had been submitted to the Minister for approval. LEP 2015 was therefore ‘imminent and certain’ and the provisions of the draft LEP 2015 were something that a consent authority was required to take into consideration under then s 79C of the Environmental Planning and Assessment Act 1979 (EPA Act) (s 79C(1)(a)(ii) and (b)) (now s 4.15(1)(a)(ii) and (b)).

79C Evaluation
(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) …
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved) …

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

4.15 Evaluation (cf previous s 79C)
(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—
(a) the provisions of—
(i) …
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved) …

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

Under LEP 1991 the subject site was zoned Residential Bushland Conservation (RES-RC):

6.3 Zone: Residential Bushland Conservation (RES-BC)
(a) To ensure that all development including subdivision is environmentally sensitive and site responsive and maintains and facilitates sustainable natural ecosystems and biodiversity within the Blue Mountains.
(b) To utilise best practice water management techniques—
• to protect, and where practicable to improve, existing perennial and non-perennial watercourses and the associated riparian zone, and
• to protect, and where practicable to improve, water quality, and
• to maintain pre-development downstream flow patterns, and
• to promote ecologically sustainable water and land management practices.

(c) To establish an appropriate landscape character by encouraging the preservation, regeneration and re-establishment of native bushland, where practicable.
(d) To ensure that the form and siting of development, and the building materials, colours, and landscaping utilised in that development, are each appropriate for, and harmonise with, the bushland character of the area in which the development is to take place.
(e) To ensure bushfire protection measures are adequate to protect proposed development and are able to be implemented without unacceptable adverse environmental impacts.
(f) To ensure that non-residential land uses are compatible with the residential character of the area in which development is proposed.

Under the zoning, subdivision of the subject site was permissible with consent.
The western portion of the site contains an area designated in LEP 1991 as Protected Area - Environmental Constraint Area, because of the identification of vegetation units of conservation significance.
When the hearing commenced, the parties advised the Court that the ecologists’ joint expert report showed that the vegetation mapped at the western end of the Lot under Sch 3 of LEP 1991 as environmentally sensitive vegetation units did not contain either of the vegetation units asserted to be present, and accordingly a contention that the proposed subdivision would have a significant environmental impact on scheduled vegetation was not pressed (Aesthete 1 at [32]). Contentions in respect of a claimed ephemeral watercourse and stormwater management issues were also not pressed.
The contentions which continued to be pressed related to bushfire issues and the weight that should be given to LEP 2015.
The proposed development was integrated development under the then s 91 of the EPA Act (now s 4.46) as a bush fire safety authority was required under s 100B of the Rural Fires Act 1997 (Rural Fires Act). No bush fire safety authority had been issued by the Rural Fire Service (RFS) prior to the hearing but after the hearing, the RFS wrote a letter to the Respondent setting out General Terms of Approval (GTAs) and noting that the RFS response was deemed to be a bush fire safety authority.
The parties’ agreed compliance with the GTAs should be included as a condition of consent if the development application was approved.
The parties also advised the Court then they had reached agreement on draft conditions of consent which were provided as a written submission.
The contentions which remained related to bush fire risk and how it should be managed and whether the proposed conditions of consent were consistent with the provisions of LEP 1991, and the weight that should be given to LEP 2015 and the zoning of the site under LEP 2015.
The parties agreed that the GTAs provided by the RFS were consistent with LEP 1991 except in relation to two clauses:

10 Development criteria—general
10.5 Environmental Impact
(a) The Council shall not consent to development unless the development—
(i) incorporates measures specified in accordance with any Development Control Plan that shows requirements for erosion and sedimentation control, and
(ii) avoids unnecessary clearing of indigenous plants, and
(iii) minimises site disturbance and soil erosion, and
(iv) where the development is for the purposes of a dwelling, minimises “cut” or “fill” or both as far as is practical and contains such “cut” or “fill” or both within the dwelling where conditions allow, and
(v) incorporates best practice water management techniques to protect the surface and groundwater regimes and water quality for the site.

(b) Where land on which development is proposed has been cleared, the Council shall not consent to development unless it is to take place as far as is practicable within the cleared area.
(c) The Council shall not consent to subdivision, unless the bushfire protection measures required to protect the land to be subdivided are contained within a perimeter road or the boundaries of the property to be subdivided, and do not have any adverse environmental impact on any water supply catchment area or any development excluded land.
(ca) The Council shall not consent to development, other than subdivision, unless the development—
(i) incorporates effective measures, within the boundaries of the lot concerned, and satisfactory to the Council, to protect the development from bushfire, and
(ii) mitigates the adverse environmental impacts of those measures to the maximum extent practicable.

(d) (Repealed)
(da) The Council shall not consent to development for the purpose of a dwelling house, or to development ordinarily incidental and ancillary to a dwelling house, on any lot created otherwise than in accordance with clause 34.1 (c), unless the development incorporates effective measures, satisfactory to the Council, to ensure that the development has no significant adverse environmental impact on—
(i) any environmentally sensitive vegetation unit (as listed in Schedule 3), and
(ii) any rare or threatened species of flora or fauna or its habitat and any unusual plant community, and
(iii) the hydrological aspect of the locality, and
(iv) any lake, lagoon, or perennial or non-perennial watercourse, and
(v) any significant natural feature, including rock outcrops, rock ledges and cliffs.

(db) The Council shall not consent to development, other than development referred to in clause 10.5 (da), on any lot created otherwise than in accordance with clause 34.1 (c), unless the development incorporates effective measures, satisfactory to the Council, to ensure that the development has no adverse environmental impact on any development excluded land.
(dc) The Council shall not consent to any development (excluding a work for the purpose of providing public utility services), proposed to take place either wholly or partly on development excluded land—
(i) located within any lot created in accordance with clause 34.1 (c), and
(ii) identified when the Council granted consent to the subdivision by which the lot concerned was created,

unless the Council is satisfied, by means of a detailed environmental assessment, that the development has no adverse environmental impact on the development excluded land concerned.
(e) Land which is steeper than 33% (1 in 3) shall for the purpose of this Plan be deemed to be a Protected Area—Environmental Constraint Area.
(f) The Council shall, when considering an application to carry out development on land in the Residential Bushland Conservation zone which is adjacent to land within the National Park zone, make an assessment of the impact of that development on the aesthetic, historical, natural, scenic and scientific attributes of the land within the National Park zone.
34 Subdivision—further provisions
34.1 General Provisions
(a) The Density Control Provision shown on the Map specifies the maximum number of lots per hectare into which land may be subdivided with the consent of the Council.
(b) The Council may consent to subdivision of any land covered by a Density Control Provision shown on the Map only if the total number of lots (other than lots for a public purpose) existing after the subdivision will not exceed the product of the notional development area of the original lot, in hectares, multiplied by the maximum number of lots per hectare specified in the Density Control Provision in respect of the original lot, rounded down to the nearest whole number.
(c) The Council may consent to subdivision of any land that is zoned Bushland Conservation or Residential Bushland Conservation only if each new lot proposed to be created, (other than lots for a public purpose, and other than lots created as part of a cluster housing development), and intended to be the site of a dwelling house, includes land with a minimum area of 750 m2, no part of which is development excluded land, and which is so configured as to be capable of being the site of a dwelling house and accommodating development ordinarily incidental and ancillary to a dwelling house.
(d) The Council may consent to subdivision of any land for the purpose of cluster housing development only if it is satisfied that—
(i) all development for the purpose of any dwelling house proposed to be erected as part of the cluster housing development, and
(ii) all development ordinarily incidental and ancillary to a dwelling house,

is not to be located on any development excluded land.

In relation to cl 10.5(c) the disagreement between the parties related to the location of the Asset Protection Zones (APZs) specified in the RFS GTAs. The Applicant made a written objection under State Environmental Planning Policy No 1—Development Standards (SEPP1) to vary the application of LEP 1991 cl 10.5)(c).
Commissioner Chilcott analysed the SEPP1 objection (Aesthete 1 at [47]-[56]) and upheld the objection.
In regard to cl 34.1(c), Commissioner Chilcott concluded:

“71 Consequently I conclude that the proposed APZs for lots 3, 4, 5, 6, 7, 8 and 9 would not have any adverse environmental impact on any water supply catchment area or any development excluded land, and that the proposed conditions for bushfire management on these lots are consistent with LEP 1991 cl34.1(c).”

In regard to Aesthete 1 the Respondent argued that although the application was being considered under LEP 1991, LEP 2015 had commenced operation and that weight should be given to it. The land use zones applicable under LEP 2015 should be applied to the subject site. Under LEP 2015 the eastern portion of the subject site was Zoned E4 (Environmental Living) and the smaller western portion was zoned E2 (Environmental Conservation). The Respondent noted that the application the subject of the hearing was only for subdivision and associated works, not the construction of any dwelling. Applications from future owners of individual lots would be assessed under the provisions of LEP 2015. The Applicant contended that the provisions of LEP 2015 could not present an impediment to the grant of consent to the proposed subdivision.
Commissioner Chilcott found that:

“80 Consequently, I conclude that, notwithstanding the current zonings and related provisions of LEP 2015 applying to the Subject Site, consideration of LEP 2015, its zonings and provisions do not present an impediment to subdivision of the Subject Site as proposed by the Applicant and as permitted under LEP 1991.”

Development consent was granted to DA S/45/2015 subject to the conditions of consent (2017 consent).
The conditions had been settled with full agreement between the parties. No appeal was made by the Respondent to the granting of consent.

The Applicant sought to modify the 2017 consent

The Applicant applied to modify the development consent granted for DA S/45/2015. The application to modify the consent (SM/45/2015.A) was refused by the Respondent. The Applicant appealed that decision to the Court pursuant to s 8.9 of the EPA Act.
The Court assigned the matter to a conciliation conference under s 34 of the LEC Act and arranged for the conciliation conference to be presided over by Commissioner Chilcott.
A s34 conciliation conference provides for ‘confidential without prejudice’, discussions between the parties, and in particular, between the nominated experts for the parties.
The nature of the ‘confidential without prejudice’ discussion phase of a s34 conference means that there is no recording nor transcript of what transpired during the discussions between the parties.
The parties reached an agreement at the conciliation conference.
The presiding member of a conciliation conference is required, if there is an agreement, pursuant to s 34(3), to dispose of proceedings in accordance with the parties' decision if, and only if, the decision is one that the Court could have made in the proper exercise of its functions. The functions the Court is exercising are those of a consent authority. In the majority of occasions, the consent authority is the council of the local government area in which the proposed activity would, if approved, be carried out. The Court is not a consent authority, but for the purposes of an appeal, the Court exercises those functions of a council relevant to determining an application.
A modification application to amend a consent may be in respect of a particular proposed change in the consent and/or specific conditions.
Application to modify an existing consent is provided for by the provisions of s 4.55 of the EPA Act of which the following are germane in the current matter:

4.55 Modification of consents—generally (cf previous s 96)
…
(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with—
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.
(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

Section 4.55(4) is essentially terminological in that a successful application does not result in the granting of a new development consent, rather those aspects of the modification which were successful, modify the original development and all other components of the consent as it was before the determination remain in effect and unchanged. If a modification application is unsuccessful, then the whole of the existing consent and conditions continue to operate.
In determining an application for modification, the consent authority must take into consideration relevant matters referred to in s 4.15(1) of the EPA Act.

4.15 Evaluation (cf previous s 79C)
(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—
(a) the provisions of—
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
(v) (Repealed)

that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.

The relevant environmental planning instrument is LEP 2015. The modification application was made after the commencement of LEP 2015 and the saving provisions of cl 1.8A no longer operate, and even if they did, only apply to a development application and not to an application to modify a consent.
The decision involves the Court exercising the function under s 4.55 of the EPA Act to approve the Applicant’s modification application. The Court must be satisfied that any jurisdictional requirements have been satisfied before it has the power to modify the consent.
The parties identified the jurisdictional prerequisites about which the Court was to be satisfied as those arriving from the provisions of s 4.55(2) and (3) of the EPA Act (see [7] of Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 1178 (Aesthete 2)).
The Applicant explained how the jurisdictional prerequisites had been satisfied:

“(1) in relation to the requirements of s 4.55(2)(a) of the EP&A Act,:
(a) the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted because:
(i) the development consent that is the subject of the modification application in this appeal was for a residential subdivision of one lot into seventeen lots, on a site of an [area] of 3.25Ha, with associated draining and civil works;
(ii) under the modification application, the consent would remain a consent for a residential subdivision, on a site with an area of 3.25Ha, with associated draining and civil works, although the subdivision would be for the subdivision of one lot into twenty-one lots;
(iii) the essence of the development consent as originally granted would remain substantially the same, from the both quantitative and qualitative perspectives, notwithstanding the increased intensity of development that would result from the modification to the layout of lots at the western end of the Subject Site;

(b) the consent as originally granted has not previously been modified;

(2) in relation to the requirements of s 4.55(2)(b) of the EP&A Act, the Parties confirmed that the NSW Rural Fire Service (RFS) has been consulted in relation to conditions imposed as a consequence of a concurrence issued by it and through the provision of general terms of approval. They further confirmed that the requirements of s 4.55(2)(b) of the EP&A Act had been satisfied through the issue of an authority by the NSW RFS following the provision of a bushfire assessment report that had been prepared by a suitably qualified bushfire consultant;
(3) in relation to the requirements of s 4.55(2)(c) of the EP&A Act, the Parties confirmed that the modification application had been appropriately notified in accordance with the provisions of this section;
(4) in relation to the requirements of s 4.55(2)(d) of the EP&A Act, the Parties advised that one submission received in response to the notification of the proposed modification application, and that this had been considered by them in reaching their agreement in this appeal.
(5) in relation to the provisions of s 4.55(3) of the EP&A Act, the Parties confirmed that:
(a) consideration had been given to the matters referred to in s 4.15(1) of the EP&A Act, and they were satisfied that the provisions of that section had been satisfied, including in relation to the potential impacts of the proposed development, in particular in relation to ecology and stormwater. They added that these potential impacts had been assessed by experts as acceptable, or had been made the subject of amended conditions of consent, attached hereto at Annexure ‘A’, and that these were acceptable to the Parties;
(b) the reasons given by the consent authority for the grant of the consent that the Applicant seeks to modify have been taken into consideration, including the zoning of that part of the Subject Site that is the subject of the modification application, and which had been changed since the original grant of consent . The Parties agreed that these had facilitated resolution of contentions in relation to the modification application.”

(Aesthete 2 at [8])

Commissioner Chilcott after considering the advice provided by the parties agreed that the jurisdictional prerequisites about which he had to be satisfied had been met (Aesthete 2 at [9]).
The Court being satisfied that the jurisdictional requirements had been met, and that the parties had reached agreement, made a decision which was a decision that was one that could have been made in the proper exercise of its functions, as was required by s 34(3) of the LEC Act. The decision required the Commissioner to dispose of the proceedings in accordance with the parties’ decision. Therefore, the Court ordered that the appeal was upheld, and approval was granted for the modification subject to the conditions of consent which formed Annexure ‘A’ to the judgment.
In almost all circumstances that would be that, but not so in this case.
The agreement between the parties had been made on 5 April 2019. Development consent, putting the agreement into effect, was granted by Commissioner Chilcott on 16 April 2019 (Aesthete 2).
Amendment No 8 to the LEP 2015 was made one day after the s34 agreement was made. This changed the zoning of the western part of the site from Zone E2 to Zone E4 (Environmental Living), and removed the protected area designation. The zone names had changed from those in LEP 1991 but when LEP 2015 came into effect the boundaries of zones had not changed. At the time of the 2016 hearing the parties’ ecological experts were aware that the two vegetation units assumed to be present in the western part of the site which were responsible for the protected area designation did not occur on the site. The assumed presence of the two vegetation units was the basis for the E2 zoning.
The E Zones changed to C Zones on 1 December 2021 (Standard Instrument (Local Environmental Plans Amendment (Land Use Zones) Order 2021).
The change from E to C Zones is simply one of name, there was no change to the text.
The judgment in Aesthete 2 was the result of an agreement made between the parties, with the Court’s role being to determine that the orders proposed were ones which could lawfully be made as the jurisdictional requirements were satisfied.
The presiding Commissioner did not, and could not, make assessment of merit issues which might have been raised in the contentions both in the Respondent’s Statement of Facts and Contentions or the Applicant’s Statement of Facts and Contentions in Reply.
Despite the Respondent raising a number of contentions concerning the merits of the proposed development, the making of an agreement between the parties indicates that as a result of agreed amendments to the proposed development and the agreed conditions, the merit issues either no longer applied or could be managed by appropriate conditions.
Despite the agreement between the parties, the Applicant became concerned that the Respondent had not approved the amended Vegetation Management Plan (VMP) that had been submitted to the Respondent on 21 March 2019.
The modification to the 2017 consent proposed an increase in the number of lots in the subdivision from 17 to 21 by creating four new lots in the western part of the site. If the number of lots increased, and the area of the western part of the site was to be subdivided, the VMP would need to be modified to address the larger area to which it would now apply. In the absence of advice that the Respondent had agreed to the amended VMP the Applicant filed a notice of motion seeking:

"1. That proceedings 2018/00122321 be reopened and listed for further hearing before Commissioner Chilcott.
2. That the proceedings be limited to determination of the issue of Ecology and that the Court hear from the two Court appointed experts on the issue to be tried."
(Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 81 (Aesthete 3) at [24])

The notice of motion was not listed for hearing until 23 April 2019 by which time Commissioner Chilcott had made the orders upholding the appeal and modifying the development consent in accordance with the agreement between the parties (2019 consent).
At the return of the notice of motion on 23 April 2019, Preston CJ pointed out that the judgment by Commissioner Chilcott had been handed down and that the orders that arose had been entered. The proceedings could not be reopened, as sought in the Applicant’s notice of motion, unless the judgment and orders and the agreements between the parties were set aside. The Chief Judge directed the Applicant to file an amended notice of motion, and provided a timetable for filing of evidence by the parties.
The amended notice of motion was set down for hearing on 27 May 2019 before the Chief Judge. Details of the proceedings and the Chief Judge’s orders are provided in Aesthete 3.
The amended notice of motion was filed on 29 April 2019 and sought:

"1. That the Agreement entered pursuant to s 34 of the Land and Environment Court Act 1979, and dated 5 April 2019, be set aside.
2. The proceedings 2018/00122321 be reopened and listed before the registrar for allocation of a date for further hearing before Commissioner Chilcott.
3. That the proceedings be limited to determination of the issue of ecology (in particular fauna and flora and vegetation management) and that the Court hear from the two Court appointed experts on the issue to be tried." (Aesthete 3 at [28])

These orders sought only the setting aside of the agreement reached before Commissioner Chilcott, not the setting aside of the judgment and orders made and entered on 16 April 2019.
Nevertheless, the Applicant’s solicitor, Mr Amirbeaggi (who appeared at the hearing of the amended notice of motion for the Applicant) submitted that Commissioner Chilcott's judgment and orders should be set aside through application of r 36.16(1) of the Uniform Civil Procedure Rules 2005 (UCPR). The amended notice of motion was filed on 29 April 2019 which was less than 14 days after the judgment and orders had been entered. Therefore r 36.16(3A) of the UCPR applied and enlivened the power of the Court to set aside the judgment and orders.
Mr Amirbeaggi submitted to the Court that the basis for seeking to set aside Commissioner Chilcott's judgment and orders was that the Council’s ecologist, Ms Nagel, had not considered and advised whether she agreed with the Applicant’s amended VMP by 10 April 2019, although Mr Cork, the Respondent’s solicitor, had represented to Mr Amirbeaggi that she would do so. Mr Amirbeaggi submitted this representation from Ms Nagel was the ‘consideration’ for Aesthete entering into the s34 agreement. Failure to meet the timetable was a repudiation of the agreement entitling Aesthete to terminate the agreement (Aesthete 3 at [31]).
Mr Amirbeaggi wrote to Mr Cork:

"I note that the basis of the application/prayer is the failure of consideration by the Council in pursuance to the agreement, namely that the Council would determine the issue of ecology/vegetation management by close of Wednesday, 10 April 2019.
We note that the Council remains in continuing default. The applicant accepts the Council's repudiation, and herewith terminates the agreement."
(Aesthete 3 at [32])

Mr Amirbeaggi submitted that termination of the s34 report removed the basis for Commissioner Chilcott's judgment and orders.

“Mr Amirbeaggi submitted that the termination of the s 34 agreement removes the foundation for the Commissioner's judgment and orders. The Commissioner only gave the judgment and orders in order to dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Court Act. Now that there is no extant s 34 agreement, the Commissioner's judgment and orders should be set aside.” (Aesthete 3 at [33])

Mr Cork represented the Respondent at the s34 conciliation and referred to what was said at the s34 conciliation conference:

“Mr Cork referred to his evidence of what had occurred at the time of the conciliation conference on 5 April 2019 (which I have summarised earlier). Aesthete's senior counsel had said that: "We will take the consent. If the Council doesn't approve the VMP, then there will just have to be a new appeal." Mr Cork submitted that Aesthete entered into the s 34 agreement on this basis and asked the Commissioner to dispose of the proceedings in accordance with this agreement.” (Aesthete 3 at [37])

I note that senior counsel was not the author of the notice of motion, and was not present when it was heard. As far as I am aware, he has not sought to seek to correct Mr Cork's recollection of what he had said.
He had not proposed modification to Condition 18 and it would seem that during the s34 conciliation conference the Applicant's senior counsel, Mr Pickles had not discussed with the Commissioner Condition 18 or the amended VMP.

“Mr Cork submitted, therefore, that the Commissioner's judgment and orders should not be set aside in order to allow Aesthete to raise and to litigate an issue that had not previously been raised in the proceedings before judgment was given.” (Aesthete 3 at [39])

The Chief Judge agreed with the Respondent:

“40 I agree with the Council that Aesthete has not established any basis for setting aside the Commissioner's judgment and orders.
41 First, the principle of finality speaks against setting aside the Court's judgment and orders. Aesthete has not established any circumstance prior to judgment being given and the orders being made, which would justify setting aside the judgment and orders.” (Aesthete 3 at [40]-[41])

His Honour also stressed that the acceptability of the amended VMP was not an issue in the proceedings.

“44 Fourthly, the issue of the acceptability of the amended VMP was not in issue in the proceedings. Neither the Council nor Aesthete had raised it as a contention. Aesthete made no application to modify condition 18 of the 2017 consent, including to have condition 18 approve the amended VMP. The terms of the agreement reached between the parties did not address the acceptability of the amended VMP. Other than minor updating of references, no change to condition 18 was proposed.
45 In these circumstances, there is no justification to set aside the Court's judgment and orders under r 36.16(1) of the UCPR.
46 Unless the Court's judgment and orders are to be set aside, there is no warrant to consider whether to set aside the s 34 agreement of the parties, as Aesthete sought in order 1 of the amended notice of motion. I have doubts whether the Court would have jurisdiction to do so. The Court does have jurisdiction under s 16(1A) of the Court Act:
‘to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.’

47 However, this ancillary jurisdiction is dependent on identification of a matter that falls within jurisdiction under a provision of the Court Act or under any other Act…” (Aesthete 3 at [44]-[47])

The Chief Judge in the course of the proceedings identified an error in both the parties’ s34 agreement and in the Court’s orders of 16 April 2019. With the consent of both parties the Court corrected the mistake under the slip rule r 36.17 of the UPCR.

The Applicant seeks to modify the modified development consent granted following the s34 agreement in 2019 (2019 consent) - plus ça change, plus c'est la même chose

On 21 December 2021 the Applicant lodged a modification application, SM/45/2015B modification, to modify the development consent granted for subdivision of 54 Luchetti. Avenue, Hazelbrook. The application for the modification of SM/45/2015A was principally to modify a number of the conditions of consent included in Annexure “A” to the judgment in Aesthete 2. Most changes relate to engineering and vegetation management changes which had arisen following discussion between the parties’ experts.
The Applicant initiated a Class 1 appeal against the deemed refusal by the Respondent of the Applicant’s modification application. I was appointed by the Chief Judge to preside at the hearing of the matter.
The matter commenced with hearings in Court on 24 and 25 August 2022, during which the parties presented openings and concurrent evidence was presented by the parties’ experts.
A site inspection was held on 31 August 2022. The parties’ legal representatives and experts were present. The inspection commenced at the existing termination of Luchetti Avenue. The vegetation of the whole site was observed, with assistance from Mr Whyte (the Applicant’s ecology expert) who, inter alia, pointed out the position of his sampling plots, and pointed out the difference in species composition of vegetation at different localities.
Inspection was also made of the planned location of the drainage swale to which the raingardens on the northern lots would connect and then discharge from the site, flowing north of Luchetti Avenue to the headwall for discharge into the existing east flowing natural creek.

Figure 2 Sheet CC004 Rev C dated 17/08/22 (from Ex A)

The plan above (from Ex A) shows the layout of the 21-lot subdivision, for which consent was granted following the s34 agreement between the parties (Aesthete 2). Lots 1-17 were approved by the consent granted in Aesthete 1. If approved the subdivision would have access to both Luchetti Avenue and Caratel Avenue. (Subsequently in this judgment, individual lots are referred to by the numbering in this Figure (Fig 2)). The discharge point from the drainage swale running on the northern side of the development to the existing headwall northeast of the crossing under Luchetti Avenue is indicated in Fig 2.
In previous proceedings involving the development, the Respondent had received a number of submissions from concerned residents, and the Court in those matters had been provided with the submissions and had heard on site from some of the authors of submissions. In 2019 Commissioner Chilcott was satisfied that the views of the only objector in those proceedings had been properly considered.
In the present matter there was some confusion initially as to whether there were objectors. The modification application had been notified (see map below of all properties notified), and during the hearing Mr Cork confirmed that a submission had been provided by Mr and Mrs Kelly, residents in Luchetti Avenue, whose property abutted the proposed development (Tcpt, 1 December 2022, p 56(27-40)). The notification of the modification application to residents, the Kellys’ submission and the Respondent’s notification of the Court’s site inspection and advice that the Kellys could address the Court about their submission are included in Ex 8.

Figure 3 Map of notified properties (Source: Ex C Tab 19)

The invitation to address was not taken up, but we were able to observe the Kellys’ property from across the boundary to the subject site, and also from Luchetti Avenue. It was also possible to observe the features of the subject site mentioned in the submission, including the nest boxes in a number of trees.

“COMMISSIONER: She [Mrs Kelly] also draws attention though to the existence of nesting boxes on a number of trees, and indeed we saw them when we visited them. Some of those trees might go. If they do, would the [nest] boxes be relocated to other trees?
PICKLES: I don’t remember anything specific; I do recall Mr [Whyte] saying something about that, on site or in his evidence. He did point out the nesting boxes and he did say that they have been installed already, with the express intent of transferring those to trees that are to be retained, in the MZ2 area presumably.
COMMISSIONER: Yes. Again, that might need to be sort of specified, which area they’re in, and somebody work out whether there were enough trees to put them all on.
PICKLES: Yes, quite. I don’t recall.”
(Tcpt, 1 December 2022, p 74(1-16))

During the hearing the Applicant tendered Ex D, the Statement of Facts and Contentions in Reply. Attached to Ex D was Annexure “D”, a letter on the letterhead of Blue Mountains Civil Contracting signed by Mr Jason Compton. When tendering Ex D, Mr Pickles referred to the content of Annexure “D” as including:

“PICKLES: This is the last document, it should be the last three pages, it's annexure D is a letter from Blue Mountains Civil Contracting and it identifies, by reference to figure 3-1 of the proposed VMP, the areas that would be required to be cleared based upon the understanding of the author of this letter who is obviously engaged in civil contracting works, but importantly makes the point at para 4 obviously, "All trees and shrubs and the road corridor will require removal" but then notes that in 5: "Road construction requires...and drainage systems." And then at 7: "The construction of...to reduce hazards." Nine: "The area along...operating and swing." And then para 10: "At the western...for safe access." And 11: "All vegetation will...they become dangerous."”
(Tcpt, 24 August 2022, p 17(21-31))

By virtue of being an annexure to Ex D, Mr Compton’s letter was in evidence, but was not in the form of an expert report.
On 28 September 2022 the Applicant submitted a notice of motion which sought that the Court make the following orders:

“1. Leave be granted to the Applicant to call evidence of an expert in the field of civil works and rely upon the report of Jason Compton dated 23 September 2022, as expert evidence in the field of civil works.
2. Any other order the Court deems fit.”

Mr Amirbeaggi in his submissions on the notice of motion explained why the Applicant wished the Court to receive evidence from Mr Compton:

“10. The Issue (particularly, the scope of work identified by Mr. Jason Compton and its consequence for the removal of vegetation) only emerged as a matter in contest when:
10.1 the joint experts in the field of engineering gave their evidence and in so doing provided to the Court a diagram said to depict the ‘Agreed Construction Zone’, and
10.2 the Respondent on 30 August 2022, served outside of the time prescribed draft Conditions of Consent which seek to condition the undertaking of works in a manner inconsistent with the statement of Mr. Jason Compton (submitted without concession as to whether service of Conditions by a Respondent is an appropriate course in an Appeal from a refused Modification).

11. Upon identification that the Issue was a matter in contest the Applicant promptly served a further detailed report of Mr. Jason Compton dated 9 September 2022.
12. Upon the Court’s further Order, the report was filed and served in the form of an expert report on 23 September 2022. That step in the proceedings was not opposed by the Respondent.
13. The Motion was filed in accordance with an Order made by the Court on 26 September 2022. That step in the proceedings was not opposed by the Respondent.”
(Applicant’s submissions on the Motion dated 17 October 2022)

What was described as “a further detailed report” from Mr Compton dated 9 September 2022 was not in the form of an expert report. I ordered that if the Applicant wished to rely on the material in the 9 September 2022 report it would be necessary for the report to include acknowledgment by Mr Compton of the obligations and requirements for expert reports (as all experts giving evidence are required to do) and also include his curriculum vitae. This was done, and a report was filed and served on 23 September 2022, unopposed by the Respondent.
For the Applicant to qualify Mr Compton as an expert, it was necessary for it to file a notice of motion seeking leave to call evidence from him. This was done in the notice of motion submitted on 28 September 2022.
I heard the notice of motion on 27 October 2022 (Aesthete No 9 Pty Limited v Blue Mountains City Council [2022] NSWLEC 1603 (Aesthete 4)) when I had regard to the reports and submissions noted in [25], and the affidavit of Mr Crompton sworn on 17 October 2022.
Mr Crompton was the Applicant’s civil and hydraulic engineer in the matter (in earlier years the Applicant had engaged different hydraulic engineering consultants).
Mr Crompton had given joint evidence with the Respondent’s engineer, Ms Hawken (Ex 5; Mr Phillips (Cardno) also participated in the joint expert conference as a stormwater and flooding expert for Council), and (Ex 6), a supplementary joint expert report by Mr Crompton and Ms Hawken) (Aesthete 4 at [26]). Ms Hawken gave evidence on two days:

“27 Much of the discussion on 24 August 2022 was in relation to drainage issues about which there was agreement between the parties. On 25 August 2022, when Mr Crompton was not present, Ms Hawken was questioned in relation to the machinery that could be used in site preparation works. She stated (Tcpt, 25 August 2022, line 14) that she had actually discussed these issues with Mr Crompton, and said on Tcpt, 25 August 2022, p 81(22-23) that ‘Mr Crompton is familiar with many excavators that can be 800 millimetre in width’.
28 Given that Mr Crompton was not present, he was not questioned as to whether or not he agreed with these statements of Ms Hawken. Whether or not he had made this comment in his discussion with Ms Hawken, in his affidavit of 17 October 2022, he said that he did not intend in the agreed construction zone plan to endorse any particular construction methods and machinery:
“3. When preparing the Plan, I intended to depict the general areas where services and drainage works would be installed in the undertaking of the subdivision works.
4. When preparing the Plan:
4.1 I did not intend the Plan to be to scale, provide measurements or widths of the works, nor to be exacting.
4.2 I did not have regard to the construction methodology required to undertake the subdivision works.
4.3 I did not have regard to the regulatory requirements / compliance necessary and the impact of those requirements on the type of machinery that is now intended to be used to undertake the subdivision works.

5. I have limited experience in the physical undertaking of civil works and do not possess expertise in that field or area.
6. Having regard to the above and the construction methodology / regulation identified by Mr. Jason Compton. The Plan does not now align with my opinion as to the potential areas of construction or areas in which vegetation may now need to be removed in order to carry out the subdivision works using the machinery proposed.”
(Aesthete 4 at [27]-[28])

The issues raised by Ms Hawken related to the types of machinery that would be used in the site works which were part of the subdivision. Mr Compton’s report addressed the machinery and methods that would, in his opinion, be necessary.
In the course of the hearing of the notice of motion the contentions that were in play in the main proceedings were discussed:

“29 The Respondent in its submissions on the Notice of Motion identified six contentions in the proceedings.
“4. The Respondent has identified 6 contentions in the proceedings, all nominated in the Respondent’s Statement of Facts and Contentions filed on 6 April 2022 (SOFC):
B1 – Insufficient Information
B2 – Vegetation Management Plan
B3 – Earthworks
B4 – Inappropriate location of flood mitigation stormwater and water quality infrastructure
B5 – Inappropriate configuration of water quality infrastructure – proposed by retention/detention basins and boundary retaining walls in Lot 12-16
B6 – Not substantially the same development”

but considered that contentions B1, B3, B4, and B5 had been substantially resolved (at par 5). The Applicant, in his Submissions in Reply, does not agree and considered that Contention B3 had not been resolved, but is, particularly given Mr Crompton's affidavit, very much alive. Contentions B4 and B5 have been resolved between the experts. Contention B1, as it stood in April 2022, has been substantially resolved through provision of information, but the changes that have taken place in a number of details have generated some other issues requiring further information. Contentions B2 and B3 are necessarily intertwined.” (Aesthete 4 at [29])

After the conclusion of the oral submissions, I adjourned to consider material, including the cases cited, which had been provided, and also to consider what had been said during the hearing after which I informed the parties that I would not grant the leave sought by the Applicant and gave brief reasons and indicated that I would provide written reasons in a judgment (Aesthete 4).
The Applicant’s notice of motion sought to introduce a new field of evidence. It was not a matter of introducing new evidence on issues that had already been discussed in joint conferencing between appropriate experts. Even reopening to permit existing experts to discuss new evidence would have required leave, and a compelling reason to justify allowing new evidence at that stage in proceedings. There might be some matters where it is obviously necessary to reopen (such as might arise were new analysis of forensic material alters the conclusions drawn) but in many instances granting leave would be discretionary.
Widening the field of enquiry would require both parties to utilise additional experts. By virtue of the inclusion of Annexure D to Ex D both parties were aware of Mr Compton’s opinions, but the Applicant had not sought prior to the hearing to qualify Mr Compton as an expert.
Mr Compton’s report raises a large number of issues. From a practitioner's perspective he would have knowledge of the machinery he routinely uses (and possibly of the availability of other machinery that may be available for specialist tasks). Council officers given their training and experience would have knowledge of machinery used at sites in the LGA, and in the Council’s own operations.
The Applicant in its oral argument on the notice of motion argued that the issue was not the practicality of the construction plan but its legality. There were workplace health and safety requirements which could not be met if the Respondent’s requirements for construction were imposed. Workplace health and safety are important matters and apply to all employers and all employees. The relevant legislation, however, does not fall within the jurisdiction of this Court, so if there were disagreement between relevantly qualified experts on the application of safety legislation the Court could not resolve them. Mr Compton in his report argued, at pars 163 and 164, that it would be necessary to remove “very thin narrow strips of vegetation” because it would be impossible to maintain them and the trees in such strips would be a risk to workers arising from the trees failing due to wind throw or weakened root systems. These are not issues upon which Mr Compton could give expert evidence; they would be matters that would necessarily require assessment by arborists. Neither party had qualified an arborist to give evidence. For the parties to engage experts in workplace health and safety matters could be expensive and time consuming particularly if it did not result resolution of issues and further hearings were required. Any modification of existing or new conditions would need to be compatible with the implementation of the unaltered conditions, which would require careful analysis of any proposed amendments.
In many Class 1 applications, joint conferencing has involved discussion between engineers and ecologists about the impacts of proposed development on aspects of biodiversity and the extent to which these impacts could be reduced. I am not aware, and no specific case was brought to my attention, of instances where discussions have involved the practicality/feasibility of construction and the expert witnesses involved included, as specifically identified categories of experts, contractors.
One (possibly the main or even only) reason for contractors not appearing as experts and why discussion of implementation of conditions is that in Class 1 cases the contentions do not raise issues which would require evidence relating to implementation.
The outcome of Class 1 appeals, whether achieved through a s34 agreement or in a judgment of the Court after a contested hearing, are attempts to balance competing issues and produce sustainable environmental (in the broadest sense of the term) outcomes. This is not to say that the outcome represents the best possible outcome but the outcome having been set at the end of proceedings, working out how to achieve that outcome is important.
Mr Compton's approach would operate in a reverse way to that conventionally applied. It starts from a position of knowing how to reach the end given the resources thought to be available in terms of machinery, expertise and personnel (and implicitly, if not explicitly, some idea of what the Applicant is prepared to spend). The approach more generally applied is for the conditions to be based on what is needed to achieve a particular desired environmental outcome. Each matter will differ in the issues involved, and in some instances the conditions may necessarily be more prescriptive than in others. In some instances, there may be constraints that would prevent the conditions being met in any circumstances - but necessity may prove to be the mother of invention, and an applicant may develop ways of satisfying the conditions in an environmentally appropriate and cost effective way. However there may be cases where at the time consent was granted an applicant could not meet the conditions.

Mr Pickles said in his oral submissions:

“But just by way of some opening remarks Commissioner, indeed Mr Cork is correct that the main impetus for the modification of conditions was the stormwater drainage design that needed to be revised, and the revised vegetation management plan which, in large measure, comes as a consequence of the revised stormwater design but also, at a practical level, it was not seen as viable to maintain the vegetation management plan as approved by the council because it anticipated a level of selective tree removal in the area that had been identified as MZ3 under the earlier vegetation management plan which, one, was not viable as a consequence of the rain gardens and the revised stormwater works, but in consequence of the advice provided by the civil engineer in exhibit D, the VMP has been revisited by Mr Whyte.” (Tcpt, 24 August 2022 p 20(6-17))

During the hearing he was not subject to any questioning seeking clarification of this statement, What is meant by ‘revisiting the VMP’? Had Mr Whyte produce a version of the VMP reflecting Mr Compton’s recommendations for the clearing required?
In Mr Amirbeaggi’s affidavit of 27 September 2022 in support of the notice of motion to rely on Mr Compton's evidence, he gave reasons why leave should be granted.

“9. The Applicant says that in order to fully determine all matters in dispute it is necessary to resolve both the construction zone issues and the matters relating to the VMP. The two are fundamentally intertwined. It has only emerged as a matter of contest because of the evidence given at the final hearing by the engineering experts and the draft conditions of consent proposed by the Council.
10. The proposed construction zone is an important issue in the proceedings because without evidence concerning the way in which the subdivision may practically be completed, the determination of the appropriate VMP cannot be fully determined and determination of that issue the Court might be led to the making of Orders and conditions that cannot as a practical matter be carried into execution.”

In par 10 of his affidavit, stress was placed on practicality, and it was suggested that the Court might be lead into making orders and conditions which could not be executed.
Clearly, if the Court were aware that particular conditions could not be executed then the Court would not make orders imposing those conditions. If the reason advanced for not making an order is one of convenience – it would be inconvenient to the applicant if the condition were imposed – then that would not be sufficient for the order to be made. However, if the applicant can demonstrate that under no circumstance could the condition be applied, then that could be a valid reason for not imposing the condition.
Mr Amirbeaggi in his submissions of 17 October 2022 identified that the extent of removal of vegetation from the site had been an issue throughout the history of the matter.

“4. The removal of vegetation has been an issue (Issue) in these and earlier Appeal proceedings concerning the subject property. The first Appeal in which the removal of vegetation was in issue was filed on 17 June 2016. The parties have returned / engaged the Court on 3 earlier Appeals concerning the subject property and in particular the Issue.
…
6. The question, matter, or indeed the Issue for the Court to determine is what measure of vegetation must be removed to practically permit the approved subdivision work that is to be undertaken.”

In par 5 of the Applicant’s submissions, Mr Amirbeaggi wrote:

“The parties have both lead extensive expert evidence with respect to the Issue. The Respondent has by its’ own expert, namely Doctor Stephen Douglas, in an earlier Appeal conceded that there is no vegetation present on the property that is scheduled, or of a protected species or variety.”

Dr Douglas may have said this but whether there was vegetation on the site that was scheduled or that it contained protected species is not relevant, as it is the clearing of vegetation (bush in general) which is of concern, not what it contains. (If there were threatened species and communities present that would raise other issues for consideration).

The present case

The modification sought by the Applicant was described as: modify various conditions of consent related to engineering and vegetation management plans. The modification application was supported by a Statement of Environmental Effects (SEE) prepared by Vince Hardy (Ex C Tab 17). In section 4.1 (p 5) of the SEE, an overview of the proposal is described as:

“The development consent notice requires the preparation of numerous environmental management plans to be prepared and approved by Council. It also references engineering plans that are the focus of this proposed modification of the development consent notice”.

I note two changes to the context in which the matter is set: the first is to the physical appearance of parts of the site, and secondly, changes to the planning context.

On 15 February 2021 the RFS issued a Bush Fire Complaint (Ex E) to the Applicant pursuant to s 100G of the Rural Fires Act:

100G Bush fire hazard reduction certificates of certifying authorities
(1) Before a certifying authority carries out any bush fire hazard reduction work on land, the certifying authority must certify—
(a) that a bush fire risk management plan applies to the land, and
(b) that the certifying authority has taken into consideration the provisions of any bush fire code applying to the land and determined which of them should be complied with in carrying out the work and whether any conditions should be imposed having regard to any provisions of that code, and
(c) if the certifying authority is a local authority or a public authority, that the notice will be given to the fire control officer for the district in which the land is situated before the work is carried out and to any other person prescribed by the regulations.

(1A) In the case of a single bush fire hazard reduction certificate certified by a certifying authority in respect of several parcels of adjoining land, as referred to in section 100E (3), a reference in subsection (1) to the certifying authority carrying out bush fire hazard reduction work on land is taken to include a reference to any authority or person carrying out the work on any of the land.
(2) A bush fire hazard reduction certificate certified by a certifying authority must—
(a) specify the provisions of any bush fire code applying to the land that the certifying authority has determined should be complied with in carrying out the work, and
(b) specify any conditions that have been imposed by the certifying authority having regard to that bush fire code, and
(c) specify the period for which the bush fire hazard reduction certificate operates.

Attached to the letter from RFS was a Bush Fire Hazard Reduction Certificate- Environmental Approval for Works (certificate no. HR2102 59086 9-1) (BFHRC). Bush fire hazard reduction certificates are issued pursuant to s 100F of the Rural Fires Act:

100F Issue of bush fire hazard reduction certificates
(1) An application for a bush fire hazard reduction certificate in respect of work to be carried out on private land by a person other than a local authority or the Commissioner is to be made to the issuing authority in writing in accordance with the regulations (if any).
(2) An application may be made—
(a) by any owner or occupier of the private land, or
(b) if the work is to be carried out on the private land by a public authority responsible for managed or unoccupied Crown land in the vicinity of the private land—by the public authority.

(3) A single application may, with the consent of all owners or occupiers of the land concerned—
(a) be made for land owned or occupied by more than one person, or
(b) be made by a public authority on behalf of those owners or occupiers.

(4) A bush fire hazard reduction certificate must not be issued unless—
(a) a bush fire risk management plan applies to the land, and
(b) the issuing authority has taken into consideration the provisions of any bush fire code applying to the land and determined which of them should be complied with in carrying out the work and whether any conditions should be imposed having regard to the code.

(5) The issuing authority may determine an application—
(a) by issuing a bush fire hazard reduction certificate, or
(b) by refusing to issue a bush fire hazard reduction certificate.

(6) A bush fire hazard reduction certificate must—
(a) specify the provisions of any bush fire code applying to the land that the issuing authority has determined should be complied with in carrying out the work, and
(b) specify any other conditions that have been imposed by the issuing authority having regard to that bush fire code, and
(c) specify as a condition of the issue that notice be given to the fire control officer for the district in which the land is situated before the work is carried out and to any other person prescribed by the regulations, and
(d) specify the period for which the bush fire hazard reduction certificate operates.

(7) The determination of an application must be completed within 7 days (or such longer period as may be agreed to by the applicant) after lodgment of the application.
(8) There is no right of appeal against the determination of, or a failure or refusal to determine, an application for a bush fire hazard reduction certificate.
Note—
If a bush fire hazard reduction certificate is not obtained, bush fire hazard reduction work may still be carried out but only if any approvals, consents or other authorisations that would have been required to be obtained but for section 100C are obtained.
(9) A public authority, a local authority or the Commissioner must not charge any fee in respect of an application for, or the issue of, a bush fire hazard reduction certificate.

The BFHRC applies to two areas of the site: one being an area of 12.98 x 151.00 m on the southern boundary of the site and the second to an area of 6.00 x 243.50 m on the northern boundary of the site adjacent to existing dwellings on Luchetti Avenue.
The original approval for the construction of the dwellings which are adjacent to both the northern and southern boundaries of the site occurred before he RFS existed, and Planning for Bush Fire Protection 2006 had not yet been published. (Prior to the establishment of the RFS, responsibility for establishing and maintaining rural fire services lay with the local government within the area of the State in which RFS now operates). There are now standard procedures and processes, and coordination of active fire management and control.
The BFHRC required that the two areas identified were to be slashed and trittered to reduce the fuel load. The Applicant has carried out the required works and as a consequence is obliged to maintain the fuel load in both areas at a low level. The obligation to maintain the APZs lies with the Applicant, but as the 21 lots created by the subdivision are sold, the obligation would pass to the new owners of the individual lots, but there would be a period during which the Applicant will be responsible managing for fuel load over a diminishing area of the current site, until such time as all the lots are sold and individual owners will be responsible for their own lots.
The Applicant had been required to apply to RFS for a bush fire safety authority under s 100B of the of the Rural Fires Act:

100B Bush fire safety authorities
(1) The Commissioner may issue a bush fire safety authority for—
(a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or
(b) development of bush fire prone land for a special fire protection purpose.

(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.
(3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1).
(4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations.
(5) Development to which subsection (1) applies—
(a) does not include the carrying out of internal alterations to any building, and
(a1) does not include the carrying out of any development excluded from the operation of this section by the regulations, and
(b) is not complying development for the purposes of the Environmental Planning and Assessment Act 1979, despite any environmental planning instrument.

(6) ...

Under Standards for Asset Protection Zones (February 2014), (a publication of the RFS) – that was included in Ex E – the APZ should be located on the land on which the asset that is to be protected is situated.

“The APZ should be located wholly within your land. You cannot undertake any clearing of vegetation on a neighbour’s property, including National Park estate, Crown land or land under the management of your local council, unless you have written approval.”

APZs wholly or partly on adjoining land, will only be approved under exceptional circumstances – the reason why this is so, and examples of exceptional circumstances are discussed in Planning for Bush Fire Protection 2006, NSW Rural Fire Service in Chapter 3 Section 3.3 pp 13-14, NSW Rural Fire Service Community Resilience Practice Notes 1/12, March 2012 (‘Establishment of Easements for the Purpose of Asset Protection Zones’), and Planning for Bush Fire Protection 2019 NSW Rural Fire Service Chapter 3 Section 3.2.5 p 26.
The Bush Fire Safety Authority issued for the proposed development requires that the whole of the area be managed as an Inner Protection Area (IPA).
The currently applicable APZ requirements are Appendix 4 to Planning for Bush Fire Protection 2019. The specification for IPAs is in A4.1.1.

The compatibility of the IPA requirements and the objectives of the LEP and zone aims is an issue in this case.

The planning regime

The relevant local environmental plan is LEP 2015. However, the original development consent was granted while the relevant LEP was LEP 1991. The current application is to modify the original consent, but not to replace it, so that the structure of the whole of the consent still reflects the requirements of LEP 1991.
The aims of LEP 2015 are laid out in cl 1.4. These are broader and more extensive than those of many other LEPs, with considerable stress on the importance of protecting the natural environment within the LGA. At a more focused scale, the objectives of the individual zones are more directly relevant to consideration of individual development applications.
Under LEP 2015 the subject site is wholly within zone C4 Environmental Living. In the Land Use Table, the objectives of the zone are listed under four dot points:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
• To ensure that residential development does not have an adverse effect on those values.
• To preserve and re-establish native bushland in those areas that exhibit a predominantly bushland character, where consistent with the protection of assets from bush fire.
• To ensure that the form and siting of buildings are appropriate for, and harmonise with, the bushland character of the locality.

Land subject to LEP 2015 may only be subdivided with development consent.

2.6 Subdivision—consent requirements
(1) Land to which this Plan applies may be subdivided, but only with development consent.
Notes—
1 If a subdivision is specified as exempt development in an applicable environmental planning instrument, such as this Plan or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, the Act enables it to be carried out without development consent.
2 Part 6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 provides that the strata subdivision of a building in certain circumstances is complying development.

(2) Development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots are not less than the minimum size shown on the Lot Size Map in relation to that land.
Note—
The definition of secondary dwelling in the Dictionary requires the dwelling to be on the same lot of land as the principal dwelling.

Subdivision of land within zone C4 is governed by cl 4.1E.

4.1E Subdivision of land in certain conservation zones
(1) The objectives of this clause are as follows—
(a) to ensure that the subdivision of land in certain conservation zones is consistent with a land capability assessment that identifies and conserves the ecological values of that land,
(b) to ensure that lot sizes and subdivision patterns for residential accommodation conserve and provide protection for the environmental values of the land by encouraging buildings to be appropriately sited.

(2) This clause applies to land in the following zones—
(a) Zone C2 Environmental Conservation,
(b) Zone C3 Environmental Management,
(c) Zone C4 Environmental Living.

(3) Development consent must not be granted to the subdivision of land to which this clause applies if any of the lots resulting from the subdivision will only contain land in Zone C2 Environmental Conservation unless any such lot is to be provided for a public reserve, public road or other public purpose.
(4) Despite clause 4.1, development consent must not be granted to the subdivision of land in Zone C3 Environmental Management or Zone C4 Environmental Living unless the consent authority is satisfied that each lot resulting from the subdivision will contain land (other than environmentally sensitive land) that has an area of at least 750 square metres and is suitable for the erection of a dwelling house (a development space).
(5) Subclause (4) does not apply to a subdivision of land that is—
(a) a minor realignment of boundaries that does not create an additional lot, or
(b) a reservation or dedication of land for creating or widening a public road or public reserve or for another public or environment protection purpose.

(6) …

The objectives of the C4 zone are not readily interpreted. The first objective refers to ‘areas of special ecological, scientific or aesthetic values.’ The meaning of ‘special’ in relation to characteristics of the values, either individually or collectively, is not defined. However, the ecology experts were in agreement that there were no species or ecological communities present on the site that were listed on the schedules of the Biodiversity Conservation Act 2016 (BC Act).
The ecological values of the site would include any values identified under s 1.5(2) of the BC Act:

1.5 Biodiversity and biodiversity values for purposes of Act
(1) …
(2) For the purposes of this Act, biodiversity values are the following biodiversity values—
(a) vegetation integrity—being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state,
(b) habitat suitability—being the degree to which the habitat needs of threatened species are present at a particular site,
(c) biodiversity values, or biodiversity-related values, prescribed by the regulations.

Section 1.5(2)(a) relates to the extent to which the ‘original’ condition (near natural state) of vegetation has changed, and not the value which could be recognised in the vegetation in its present condition. Section1.5(2)(b) addresses habitat needs of threatened species on the site, but does not require consideration of what could be considered to be the ongoing functional values of the site.

The conditions imposed in Aesthete 1 reflected the then applicable LEP – LEP 1991. The current matter is to be assessed under the provisions of LEP 2015. While the wording of the LEPs has changed, the objectives and intent of the two LEPs remain very similar.
The major differences between the parties relate to Condition 18, directly or indirectly, regarding whether the drainage works in what will become the 21 individual lots should be constructed by the Applicant or by the future owners of individual lots.
The Applicant considers that, on grounds of practicality and efficiency, the works on the integrated drainage system should be constructed by the Applicant prior to the issue of the subdivision certificate as summarised at par 17 in the Applicant’s submissions.
Importantly, the development consent sought by the Applicant will have a limited life. Once the subdivision certificate has been issued the consent ceases to require any practical works the Respondent requires that the Applicant would be responsible for monitoring for three years after the subdivision works have been completed although the VMP specifies two years of monitoring. The owners of the individual lots will not be carrying out any work under the consent, but will be required to obtain separate approval for the construction of a dwelling. Although the dwelling is required to be within the development outline, which is within the larger lot, conditions will be imposed applying to the management of the whole of the lot.
An important aspect of the subdivision stage will be the consequences of being required to manage the whole area as an IPA. This will have implications for the ground and litter layers as well as the shrub and tree layers.
The need for canopy reduction to meet the RFS requirements limits the number of trees that can be retained across the whole site. Mr Whyte, influenced by the views of Mr Compton, considers that very few trees can survive, but that reflects Mr Compton’s perceived needs for access.
There has been no assessment by an arborist and/or ecologist that has examined in detail which trees could be retained while still satisfying the RFS requirements for management of IPAs. As the Respondent has emphasised there is no mapped inventory of trees across the subject site which accurately shows the position of every tree and its species identity.
I require that the VMP be modified to identify the trees that can be retained while still satisfying the Bush Fire Safety Authority requirements. This will require further field work by Mr Whyte and/or a qualified arborist (with at least AQF Level 5 qualification). The VMP is also to include details of fauna management requirements (as specified in [253] above).
The Applicant’s proposed wording of Condition 19 (Weed Control Strategy) requires invasive plants species to be carried out in accordance with the VMP, subject to section 3.8.1 of the VMP being amended so that ‘Primary weeding is to be carried out over the entire area of the VMP prior to works commencing and prior to mulching’.
The clearing and mulching will provide conditions which may stimulate regeneration of weeds and/or provide conditions for invasion by propagules of existing and new weeds.
The Respondent proposes that the approved VMP be referred to in a positive covenant in favour of Council pursuant to s 88E of the Conveyancing Act 1919 which will be required under Condition 83. Within the residential lots, APZs are to be implemented in accordance with the approved VMP, until development consent for the construction of a dwelling has been granted. Following the granting of a development consent to an individual landowner, landscaping and vegetation management would be conducted in accordance with the consent conditions imposed on development within the single lot.
The Applicant agreed that the covenants proposed in Condition 83 ‘to the extent they are imposed would be the only legal means of binding future owners to any part of the consent conditions’.
The Applicant does not consider it appropriate for future landholders to be bound by the VMP which applies to subdivision works as they cannot carry out any works under that consent.

What conditions are imposed on individual owners would nevertheless be appropriately subject to a s88E covenant and be binding on subsequent owners. It is likely that elements of the vegetation management requirements will reflect the need to maintain the IPA and would reflect the covenant imposed on the subdivision works, but could be modified to include other relevant changes necessitated by changed circumstances.

Conditions of consent

The parties have each provided draft version of conditions of consent and a table in which they provide reasons for favouring one version over the other.
The outstanding differences between the differences are as follows:

Condition 1 “Confirmation of relevant plans and documents”

Condition 1 relates to the table of plans and documents. The Applicant seeks to include the VMP prepared by Mr Whyte in December 2021; the Respondent wishes to retain the 2021 VMP which Council approved on 18 March 2020. I have determined that the VMP needs to be amended as required above. The revised 2021 VMP is to be submitted to the Court for approval.
If the version of the VMP referred to above is approved, Condition 18 is deleted.
I consider that the more recent plan for the drainage swale and raingardens is to be included, but that further changes to the VMP are required in relation to determining which trees should be retained.

Condition 5 “Limits of vegetation removal”

The Respondent seeks to add an additional sentence to the first paragraph:

“Limited removal of trees and other vegetation is permitted by the consent.”

A correct statement, as is clear from the rest of the condition. The Applicant does not incorporate the sentence in its version of the condition, but the VMP will establish what areas may be cleared, and what trees are retained, so the Respondent’s inclusion is not added to the condition.

Condition 5(a)

In Condition 5(a) the Respondent seeks to limit the conditions to the ‘footprint of the approved subdivision construction works’, from which it would exclude work on the drainage swale and raingardens.
The Applicant seeks to amend (a) to within the approved subdivision works and drainage infrastructure works which would include the drainage swales and raingardens.
I have already indicated (at [200]) that I prefer the Applicant’s position regarding the swale and raingardens.

Proposed Condition 5(d)

The Applicant also wishes to add a new (d) ‘within the approved building envelopes’.
The building envelopes are within the IPA so that the Bush Fire Safety Authority would already require substantial reduction in vegetation.
However, in case there was any scope for ambiguity I would include the Applicant’s proposed (d).

Condition 6 “Submission of Amended Civil and Drainage Plans”

Condition 6(a)

In Condition 6, the Respondent wishes to amend (a).

“a)   The plans shall be generally in accordance with the approved plans, the approved Vegetation Management Plan referred to in condition 18, and the other conditions of this consent. The following works must not be completed prior to the issue of the Subdivision Certificate and are to be deleted from the plans:
i.   earthworks outside the construction zone footprint;
ii.   individual stormwater connections from each lot to the street gutter; and
iii.   lot-scale raingardens.

The works referred to in i., ii. and iii., above are to be carried out by the owners of the new lots to be created by the subdivision and are to be the subject of a development application seeking a grant of consent for the construction of a dwelling house on the lot concerned.”

I have already indicated that the Applicant’s inclusion of the swale and raingardens is to be preferred (see [200]).

Condition 6(b)

In Condition 6 (b) in the Respondent’s version, the vii should be corrected to v.

Condition 10 “Construction Management Plan”

I had raised with the parties the wording of the preamble, and the Applicant had agreed with my interpretation of what was the intended outcome. The Respondent raised a broader issue:

“The Respondent notes that a Subdivision Works Certificate has been issued for the works originally contemplated under the development consent granted by the Court, prior to the modification of that consent. The parties must determine whether the existing certificate may lawfully be amended or whether a new certificate, for the works now proposed, must be issued.”

In the question I had raised with the parties regarding this condition I sought clarification as to how the condition should be read. The Applicant agreed with my suggestion – that the wording should be ‘for the amended plans’. I had assumed that a new certificate would be issued, and the matters raised by the Respondent were not in my mind when I sought clarification.
If a new certificate were to be issued, rather than the existing certificate be amended, would that be lawful, even if it were not essential?
The parties are requested to make either an agreed or competing submission on the resolution of this condition – would the rewording I originally suggested, and agreed to by the Applicant, be lawful, or is the condition to be worded so as to require a new subdivision works certificate be issued?

Condition 10(c)

I had suggested to the parties during the hearing that a detailed plan would be preferable to the sketch plan prepared by the joint experts in addition to the areas included in the sketch plan. I direct that a detailed plan be provided and it be included in Condition 1.
However, I do not accept that the civil contractor should be accepted as providing the last word on the extent of clearing of vegetation and I require that the trees which will need to be cleared to meet the IPA requirements should be determined following examination by Mr Whyte and an arborist and the incorporation of findings in the VMP (see [269] above).
The VMP is to be submitted to the Court for approval and the VMP be incorporated in Condition 1.

Condition 10(g), (h) and (i)

Condition 10(g), (h) and (i) should be amended to reflect the agreement between the parties.

Condition 18 “Vegetation Management Plan – Preparation”

The fundamental difference between the parties is shown in the competing versions of Condition 18.

Applicant’s Condition 18
“Vegetation removal shall be carried out in accordance with the Vegetation Management Plan prepared by John Whyte dated December 2021 as identified in Condition 1, however with amendment to the requirements for weed management as specified in Condition 19.”
Respondent’s Condition 18
“The development shall be carried out in accordance with this consent and with the Vegetation Management Plan prepared for the site and approved by the Council on 18 March 2020 (VMP), which is to be amended pursuant to this consent and, following those amendments, is to be submitted to and approved by the Council.
The VMP has been prepared for the site in accordance with Council’s Guidelines and submitted to and approved by Council. The VMP shall be amended in accordance with this condition 18 prior to the amendment of the Subdivision Works Certificate.
The VMP was prepared by persons with professional qualifications and/or demonstrated knowledge and experience in bushland rehabilitation practices.
The VMP was prepared to demonstrate compliance with Residential – Bushland conservation zone objectives in LEP 1991.Management strategies outlined within the VMP are to address the protection of bushland values while implementing the approved development and its asset protection zones, and specify landscape restoration requirements.
The VMP addresses and must continue to address:
a)   protection of native vegetation located beyond the footprint of approved works;
b)   establishment and maintenance of the required bushfire asset protection zones in an environmentally sensitive manner* (*see condition titled “Vegetation management within asset protection zones”);
c)   tree retention within the asset protection zones: significant trees with a diameter greater than 300mm are to be prioritised for retention, in conjunction with a mix of smaller trees to achieve/retain the 15% tree canopy cover within the Inner Protection Area (IPA).
Trees to be retained are to be identified on site with a weather proof label and shown on a plan (as part of the VMP) with their survey location and details of size, health, habitat value, and SULE rating.
d)   provision of native vegetation retention for screening along street frontages and lot boundaries;
e)   provision of street trees and appropriate ground cover within the new road reserve. Plantings are to be advanced or super- advanced stock comprising local indigenous tree species such as Corymbia gummifera, Angohpora costata, Eucalyptus piperita, and Eucalyptus sieberi), at minimum 25m spacings.
f)   vegetation rehabilitation of degraded or disturbed surfaces, including areas impacted by earthworks and erosion and sediment controls;
g)   vegetative components of stormwater conveyance, water quality treatment, infiltration devices and outlets.
h) control of invasive plant species within the site as identified under the provisions of the Biosecurity Act 2015 and the Blue Mountains DCP 2015 Part 2.3 (see condition titled: “Weed Control Strategy”).
i)   the manner in which trees within the Inner Protection Area are proposed to be removed to prevent significant damage to the root zones of trees that will be retained within that Area.

The VMP includes a written report with an annotated site plan / aerial photograph and shows the entire property including all development and environmental features covered by these conditions.
The VMP includes objectives, identifies management zones, defines and describes tasks and provides a timeframe for task implementation, performance targets, on-going monitoring and maintenance of the above works.
Note: Council   Guidelines for the preparation of VMPs are available at:

The VMP provides clear specifications and supporting illustrations regarding trees and other vegetation to be retained/removed, the existing and proposed structure, density and percentage cover of vegetation for all stratum (groundcover, shrub and canopy) within the required APZ inner and outer protection areas with reference to current NSW Rural Fire Service standards, guidelines and conditions relating to the provision of APZ’s.
The relevant diagrams and figures within the VMP are to be amended and updated to reflect the modified subdivision works approved under this consent, including:
i.   any minor changes to the construction works footprint for area MZI, as depicted in sketch entitled “Agreed Construction Zone Footprint” superimposed on J Wyndham Prince Drawing CC010;
ii.   the installation of fence netting (such as the fence netting supplied by Seton Australia) or the installation of high visibility bunting (both as referred to in condition 31 of this consent) in the locations identified in Section 3 paragraph 8 of the joint expert report of Bronya Mach and John Whyte dated 18 August 2022 (Joint Report); and
iii.   the installation of steel fencing in accordance with AS4970-2009, as specified in Section 3 paragraph 9 of the Joint Report and in condition 31 (third bullet point paragraph) of this consent.”

The Respondent points out that Condition 18 has applied to the development since the development consent was granted in 2017 (Aesthete 1). In 2019, the parties reached a s34 agreement which included agreed conditions (Aesthete 2).
The Respondent, in the table of responses submitted that the RFS ‘does not require that only a small number of woody specimens can be retained within the site’. I have indicated that the requirements may allow more trees than the Applicant now proposes to retain and the Applicant’s position results from its response to Mr Compton’s report which was driven by his views on access requirements rather than the RFS standards for an IPA.
However, the Respondent’s position does not, in my opinion, reflect the RFS requirements for management of the ground and litter layers which will have effects on the long-term sustainability of not only those layers, but the shrub layer, and over a longer term, the canopy.
I have determined that the subdivision works include work on the drainage swale and raingardens. The subdivision works will be completed in a relatively short time, after which individual lots will be sold and responsibility for the lots will transfer to the new owners, although the Applicant will still have responsibility for the unsold parts of the site until they are sold.
I require that the VMP be revised to make the changes as discussed above, and the revised VMP be submitted to the Court for approval, so that Condition 18 can be deleted.

Condition 19 “Weed control strategy”

The Applicant proposes to carry out primary weeding across the whole site prior to the work commencing.
Regeneration of weed species in situ, and invasion by propagules from areas external to the site will commence almost as soon as the initial weeding has been completed. Invasion may include propagules of species not currently recorded from the site, additional species may be declared to be weeds and techniques for managing weeds continue to evolve.
Given that the Applicant will continue to have responsibility for areas which it owns, there should be capacity for incremental amendment of the weed management strategy to reflect changing circumstances and I have required in [256] that provision for adaptive management should be included in the VMP.

Condition 20 “Vegetation management within asset protection zones”

Condition 20(a)

The Respondent proposes to add “complete removal of vegetation within the asset protection zone (APZ) is not permitted”.
Given the requirements of Condition 20(a)-(i), these additional words are unnecessary and should not be included.

Condition 20(b)

In view of the standards for IPAs imposed by the RFS, and the more detailed provisions in other parts of Condition 20, Condition 20(b) is not to be included.

Condition 20I

This is to be amended to include the words suggested by the Respondent.

Condition 20(d)

It is possible to relate growth form with age in some species but not all. Even some ground layer herbs may be very long lived, and ground layer prostrate shrubs may also have long lifetimes.
There may be areas within the site where not all the strata are present. Although the intent is appropriate, it will, to the extent possible, be met by other parts of Condition 20. Condition 20(d) should not be included.

Condition 20A “Provision of Street Trees”

The Respondent proposes that if I approve the 2021 VMP that water gums not be included in street plantings. No explanation is provided for not including water gums. Water gums, in my opinion, could be planted but that would not be essential.
I have determined that a revised 2021 VMP should be submitted to the Court for approval. The wording of the revised 2021 VMP in relation to the street tree planting should be determined by Mr Whyte following consultation with, and advice from, an arborist.

Condition 31 “Exclusion zone and Tree Protection Zones”

The Respondent has suggested a number of amendments to wording and these should be adopted. The remaining point of difference is whether fencing barriers should be required, or whether high visibility bunting is appropriate.
I consider that the VMP should contain reference to high visibility bunting and also contain a requirement that work should not occur internal to the bunting. This, coupled with regular inspection to ensure the integrity of the bunting will meet the desired objective.

The site is relatively small, and the number of workers present, at any one time, is likely to be relatively few, so that, provided workers are instructed not to cross the bunting boundaries, the condition will provide appropriate protection. The VMP should contain the necessary wording.
In the table of responses to the alternative conditions, there is agreement regarding the need for a number of changes and/or additions to the conditions. These should be incorporated in the final version of the conditions.

Condition 80 “Lots adjacent to overflow channel”

The parties have different levels in (a) and (b). The Applicant proposes lower levels than does the Respondent. However, these levels do not relate to any required for subdivision works but will apply to the levels of any future dwellings. The condition requires a s88B instrument under the Conveyancing Act to be registered on the title for all the lots that contain or have the potential to be impacted by water flowing from stormwater drainage channels.
The Respondent explained that the levels included in the conditions were those agreed between the engineering experts in the joint expert report.
The Applicant offered no explanation for wishing to set lower levels.
Noting that the condition will only come into play when individual owners lodge development applications for construction of dwellings, I consider that the Respondent’s version of Condition 80 should be adopted.

Condition 83 “Section 88B or 88E - Positive covenant”

I accept the position adopted by the Applicant, discussed above at [267], but note that both parties agree that the terms of the s88 positive covenant ‘not be limited to’ – so that some refining of the wording may be appropriate when the wording of the VMP is determined.

Other changes to conditions

The table of responses includes agreement between the parties on a number of matters – those agreements should be incorporated where relevant in the modified conditions, along with any changes agreed during the hearing. The parties are directed to address the matters identified in this judgment and those referred to above including that raised in [295] regarding Condition 10.
There are a number of other changes which I direct be included in the VMP.

Section 3.2

Dot point 4 – the last sentence refers to inspection, but a requirement for inspection is not raised earlier in the paragraph. Wording along the lines of:

“All vehicles and other equipment to be used in weed works are to be inspected prior to entering the site to ensure that they are completely free of soil, seeds, and plant material, to minimise the risk of introduction of exotic or weedy plant species and pathogens. Equipment failing inspection must be sent away for cleaning.”

should be included. [I suggest that known weeds should be mentioned as well as exotics, as while exotic would be interpreted as referring to introduced non-native species, there are some native species which can be serious weeds such as Cootamundra wattle.]

Where will inspections take place? Is there a suitable location either near the site or if it is in the site, be right on the edge, with any drainage directed away from the subject site?
Who will carry out inspections? There needs to be a more than cursory look. Will the person be required to undergo training before starting inspections?

Section 3.2.2 extends controls to construction vehicles

Will there be a routine requirement for workers to step through a disinfectant bath before entering the site? Dot point 2 in 3.2.2 partly covers the point, but not fully.
Second sentence should be more than a hope, and should be worded as mandatory.

“The following simple procedures to reduce the chance of transferring diseases should be applied at all times:”

Globally new plant diseases are becoming problems very rapidly – so wording should be:

“Transfer of plant diseases including but not restricted to Phytophthora or Myrtle Rust.”

Section 3.8.2

Rather than “it is recommended”, the sentence should read:

“Secondary weeding should be conducted every two weeks (weather permitting)…”.

The public interest

The consent authority in evaluating a proposal is required to consider, under s 4.15(1)(e) of the EPA Act, ‘the public interest’. This includes upholding the objectives of legislation (Carstens v Pittwater Council (1999) 111 LGERA 1, per Lloyd J). This requires giving appropriate weight to the objects of zones within local planning instruments. McLellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 (BGP) said, at [118]-[119]:

“118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.
119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.”

That the zoning of an area permits a particular category of development does not mean that consent for an example of that category of development will automatically be forthcoming (BGP at [118]).
An application will be considered in the light of its environmental impacts and other provisions in legislation and planning instruments, and that could result in either refusal (in whole or part) or being approved but with conditions. In the present case the conditions applied reflect both the aims of the C4 zone to promote (in broad terms) protection of biodiversity and the need for protection of life and property required by the RFS.
The initial approval in 2017 (Aesthete 1) and the modification application in 2019 (Aesthete 2) considered the requirements for assessment under the EPA Act. In Aesthete 2, the brief formulaic discussion, typical of s34 judgments at that time, provides little information about the matters considered. As I discussed (at [120]-[156] above) there are inherent conflicts between protecting the bushland character of the site and applying the management regime required in an IPA. Public interest consideration would give priority to protection of life and property, although the VMP aims to secure to the maximum possible, subject to implementing the RFS requirements, protection of biodiversity.
The Applicant’s SEE, prepared by Vince Hardy (at Tab 17 of Ex C) had a minimal discussion of public interest.

“6.6 THE PUBLIC INTEREST
The modified development proposal does not generate any development outcomes that would be considered to be not in the public interest.”

Orders

The Court orders:

The parties are directed to address the matters raised in this judgment and provide to the Court an agreed set of modified conditions that will form Annexure A, and a consolidated set of conditions that will form Annexure B in Word format on or before close of business on 15 December 2023. An electronic copy of any relevant documents referred and attached to the consent is to be provided to the Court on or before close of business on 15 December 2023.

The Applicant is directed to submit a revised version of the Vegetation Management Plan (VMP), and to provide an electronic copy of the same, to the Court before close of business on 15 December 2023.

The parties are directed to provide by 15 December 2023 either an agreed submission or competing submissions on the resolution of Condition 10 (refer to [295] of the judgment).

Liberty to reapply if Order (1) is not met.

……………..

P Adam

Acting Commissioner of the Court

**********

Decision last updated: 24 November 2023

Medium Neutral Citation:	Aesthete No.9 Pty Limited v Blue Mountains City Council [2023] NSWLEC 1711
Hearing dates:	24-25, 31 August 2022; 17 October 2022; 3 November 2022; 1 December 2022; 22 March 2023; 18 May 2023
Date of orders:	24 November 2023
Decision date:	24 November 2023
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	The Court orders: (1) The parties are directed to address the matters raised in this judgment and provide to the Court an agreed set of modified conditions that will form Annexure A, and a consolidated set of conditions that will form Annexure B in Word format on or before close of business on 15 December 2023. An electronic copy of any relevant documents referred and attached to the consent is to be provided to the Court on or before close of business on 15 December 2023. (2) The Applicant is directed to submit a revised version of the Vegetation Management Plan (VMP), and to provide an electronic copy of the same, to the Court before close of business on 15 December 2023. (3) The parties are directed to provide by 15 December 2023 either an agreed submission or competing submissions on the resolution of Condition 10 (refer to [295] of the judgment). (4) Liberty to reapply if Order (1) is not met.
Catchwords:	APPEAL – modification application – deemed refusal – 21-lot residential Torrens title subdivision and associated infrastructure work – whether proposed development substantially the same as that originally approved – site is bush fire prone – bush fire safety authority (BFSA) issued – whole site to be managed as an Asset Protection Zone (APZ) and categorised as an Inner Protection Area (IPA) – whether implementation of requirements specified in BFSA compatible with maintaining the bushland character and biodiversity of the site – redesigned drainage system – whether all of drainage system should be constructed by Applicant before subdivision certificate is issued – how many trees can be retained – requirement for vegetation management plan (VMP) – when should VMP be prepared – conditions
Legislation Cited:	Biodiversity Conservation Act 2016, s 1.5 Blue Mountains Local Environmental Plan 1991, cll 6.3, 10.5, 34.1, Sch 3 Blue Mountains Local Environmental Plan 2015, cll 1.4, 1.8A, 2.6, 4.1E Blue Mountains Local Environmental Plan 2015 (Amendment No 8) Conveyancing Act 1919, s 88E Environmental Planning and Assessment Act 1979, ss 79C, 91, 102 (repealed); 4.15, 4.46, 4.55, 8.9 (current) Land and Environment Court Act 1979, ss 34, 34C Rural Fires Act 1997, ss 100B, 100F, 100G Standard Instrument (Local Environmental Plans Amendment (Land Use Zones) Order 2021 State Environmental Planning Policy No 1—Development Standards Uniform Civil Procedure Rules 2005, rr 36.16, 36.17
Cases Cited:	Aesthete No.9 Pty Limited v Blue Mountains City Council [2017] NSWLEC 1199 Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 1178 Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 81 Aesthete No 9 Pty Limited v Blue Mountains City Council [2022] NSWLEC 1603 Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No.3) [2015] NSWLEC 75 Arrage v Inner West Council [2019] NSWLEC 85 BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Carstens v Pittwater Council (1999) 111 LGERA 1 Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Texts Cited:	Blue Mountains Development Control Plan 2015 Franks, A & Franks, S 2011, Nest boxes for wildlife: A practical guide. Corrected edn. Bloomings Books Macquarie Dictionary, online NSW Rural Fire Service, Community Resilience Practice Notes 1/12, March 2012 (‘Establishment of Easements for the Purpose of Asset Protection Zones’) NSW Rural Fire Service, Planning for Bush Fire Protection 2006 NSW Rural Fire Service, Planning for Bush Fire Protection 2019 NSW Rural Fire Service, Standards for Asset Protection Zones, February 2014
Category:	Principal judgment
Parties:	Aesthete No.9 Pty Limited (Applicant) Blue Mountains City Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) T Cork (Solicitor) (Respondent) Solicitors: Yates Beaggi Lawyers (Applicant) McPhee Kelshaw (Respondent)
File Number(s):	2022/44512
Publication restriction:	Nil