Bendent Pty Limited v Blue Mountains City Council

[2001] NSWLEC 33

Land and Environment Court

of New South Wales

CITATION:

Bendent Pty Limited v Blue Mountains City Council [2001] NSWLEC 33

PARTIES:

APPLICANT
Bendent Pty Limited

RESPONDENT
Blue Mountains City Council

FILE NUMBER(S):

10603 of 1999

CORAM:

Cowdroy J

KEY ISSUES:

Development :- subdivision - environmentally sensitive land - proposed subdivision inadequate for site constraints - non compliance with objectives of proposed draft local environmental plan

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 5A, s 79C

CASES CITED:

Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 ;
Edward Listin Properties Pty Ltd v North Sydney Council (No 2) [2000] NSWLEC 181;
Mathers v North Sydney Council [2000] NSWLEC 84;
Walker v North Sydney Council (2000) 110 LGERA 397

DATES OF HEARING:

1/12/00, 4/12/00, 5/12/00, 6/12/00

DATE OF JUDGMENT:

03/02/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Campbell (Barrister)

SOLICITORS
Craig Milne & Company

RESPONDENT
Mr J Robson (Barrister)

SOLICITORS
McPhee Kelshaw

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10603 of 1999
CORAM: Cowdroy J
DECISION DATE: 2/3/01

Bendent Pty Limited

v

Blue Mountains City Council

JUDGMENT

Introduction

1. This class one appeal arises from the refusal by the Blue Mountains City Council (“the council”) of development application No 9/99 dated 9 March 1999 (“the development application”) by Don Fox Planning on behalf of the owners Bendent Pty Limited (“the applicant”). The development application seeks approval for a subdivision to create 72 residential lots, road network and open space reserves on lots 400 and 401 DP 591224 being 25 The Mall and 292 Great Western Highway at Warrimoo (“the land” or “the site”). I have heard these proceedings with Commissioner Bly.

2. The subdivision is to include 72 residential lots having areas ranging in size from 576 m2 to 2637 m2 plus seven lots totalling some 4.72 ha described as public reserves (“the development”). These reserves are mainly located through the middle of the site and encompass lower lands traversed by watercourses. Vehicular access to the subdivision is provided by The Mall and the Great Western Highway. The proposed central road Olivieri Drive connects and forms a through route between these two roads.

The Site

3. The site is an irregular shaped vacant parcel of land having an area of 12.76 ha. It is situated to the west and south west of the Warrimoo shops beside the Great Western Highway. Adjacent to the site to the west is residential development mainly comprising detached dwellings.

4. Topographically the site comprises a deep gully and watercourse which extends from its north-western corner to its southern side. In parts it is steep with large areas exceeding 20% (1 in 5) with some areas exceeding 33% (1 in 3). The site is well vegetated predominantly with native trees and shrubs.

Statutory framework

5. Blue Mountains Local Environmental Plan 1991 (“LEP 1991”) is applicable to the site. Under LEP 1991 the site is mostly zoned Residential Bushland Conservation (RES-BC) and partly Residential 2(a1). In these zones, subdivision is permissible with development consent.

Clause 9.3 of LEP 1991 provides that:-

Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council has considered the objectives of this plan, the objectives of the zone and of any protected area in which the land is situated, and is of the opinion that the carrying out of the development is consistent with those objectives.

6. Relevant objectives of LEP 1991 for the City in cl 3.1 are:-

To identify and protect the Blue Mountains’ natural and cultural heritage, and the distinctive character and amenity of local communities; to recognise and maintain the positive qualities of the traditional lifestyle enjoyed by the residents of the City; and to recognise the importance of the Blue Mountains National Park as the setting of the City.

To concentrate and contain the spread of urban development

(c) Environmental sensitive design and bushfire protection.

(i) To locate, design, carry out and service development so that it does not exceed land capability and other physical constraints of the Blue Mountains.

(ii) To implement a bush fire management plan which will not cause unacceptable impact on Water Supply Catchment Areas or environmentally sensitive areas.

(iii) To ensure that new development is located and managed so as to reduce the threat from bushfire.

(d) Pollution and Erosion Control

(i) To achieve unpolluted streams, land and air as well as a stable, attractive landscape.

(ii) In the short term, to attain water quality appropriate for recreational use in the headwaters of the Blue Mountains’ streams.

7. Clause 11.3 of LEP 1991 applies to development in the Environmental Constraint Area (“the ECA”) and provides that:-

The Council shall not consent to development in a Protected Area - Environmental Constraint Area, unless it is satisfied, by means of a detailed environmental assessment, that the development will not compromise the objectives of the Protected Area and will comply with the Development Criteria in Clause 10.

8. In relation to the development, the relevant objectives of the RES-BC zone are:-

(d) To ensure that bushfire protection measures are contained within a perimeter road or property boundaries (and do not cause an adverse environmental impact on Water Supply Catchment Areas or an environmentally sensitive vegetation unit).

9. That part of the site which essentially follows the deep gully is also identified in cl 8 and on the zoning map of LEP 1991 as a Protected Area - Environmental Constraint Area. In addition, cl 10.5(e) designates land which is steeper than 33% as Protected Area - Environmental Constraint Area.

10. The objectives of the ECA are:-

(a) To protect environmentally sensitive land and areas of high scenic value in the City.

(b) To provide a buffer around areas of ecological significance.

(c) To restrict development on land that is inappropriate by reason of its physical characteristics or bushfire risk.

11. Pursuant to cll 8, 34.1 and 34.4 of LEP 1991 and applicable to that part of the site zoned RES-BC is a zone subscript which has the effect of limiting the subdivision yield to no more than 8 lots per hectare of useable land area on that part of a lot not zoned Environmental Protection or designated on the Map as an Environmental Constraint Area. The proposed development standard is exceeded by two lots and hence an objection pursuant to State Environmental Planning Policy No 1 - Development Standards has been made.

12. Clause 10.2(b) of LEP 1991 deals with access and provides that:-

(b) The Council shall not consent to development which requires an on-site access road unless such a road is designed and constructed to minimise grades, to suit contours, and to be stable, taking into account the characteristics of the site and the locality, and should avoid slopes of 33% or greater.

13. Clause 10(5) of LEP 1991 deals with environmental impact and subclauses (a), (c) and (d) provide that:-

(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.

(c) The Council shall not consent to development unless the development incorporates effective measures, within the boundaries of the site and satisfactory to the Council, to protect the development from bush fire.

(d) The Council shall not consent to development, other than the erosion of a dwelling house, unless the development incorporates effective measures, satisfactory to the Council, to ensure that no adverse environmental impact occurs in respect of:

(i) any environmentally sensitive vegetation unit (as listed in Schedule 3); and

(ii) any rare or endangered 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 any rock outcrops, rock ledges and cliffs.

14. Also applicable to this development are:-

· Blue Mountains Development Control Plan 27 - Subdivision (“DCP 27”)

· Blue Mountains Development Control Plan 10 - Character Guidelines (“DCP - 10”)

· Blue Mountains Development Control Plan 26 - Bushfire (“DCP 26”)

15. In March 1997 Council resolved to prepare draft Local Environmental Plan Amendment No 25 (“Amendment 25”) which involves substantial changes to the subdivision provisions of LEP 1991. Amendment 25 has since been advertised (on two occasions) and it is soon to be forwarded to the Department of Urban Affairs and Planning for finalisation in accordance with the Environmental Planning and Assessment Act 1979.

16. Amendment 25 will make numerous changes to LEP 1991 including more stringent objectives for the RES-BC zone as follows:-

(a) To ensue that all development including subdivision is environmentally sensitive and site responsive and maintains and facilities sustainable natural ecosystems and biodiversity within the Blue Mountains

- to protect and where practicable to improve, existing perennial and non-perennial watercourses and the associated riparian zones; and

- to protect, and where practicable to improve, water quality; 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 the development, are each appropriate for, and harmonious with, the bushland character of the area in which the development is to take place.

(e) To ensure bush fire protection measures are adequate to protect proposed development and are able to be implemented without unacceptable adverse environmental impacts.

17. The revised cl 9.3 of the LEP as amended by Amendment 25 is provided as follows:-

Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council has considered the objectives of this plan and the objectives of the zone and any protected area in which the land is situated, and is of the opinion that the carrying out of the development complies with the objectives that are relevant to that development.

18. The difference between LEP 1991 and Amendment 25 lies in the fact that the former required consistency with the objectives whereas the revised version requires compliance with the more stringent objectives.

19. Clause 34.1 is also to be amended pursuant to draft Amendment 25 and cl 34.1(b) and (c) are provided as follows:-

(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 area 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.

20. Relevantly, notional development area is to be defined as:-

Notional development area means that part of a lot not zoned Environmental Protection and not designated on the Map as a Protected Area - Environmental Constraint Area.

21. Additionally, cl 34.4(b) is to provide that:-

For the purpose only of clause 34.1, the notional development area of that part of a lot zoned RES-BC and subject to a Density Control Provision of (8/ha) shown on the Map shall not include any land which is steeper than 20%.

22. Also relevant is the proposed definition of development excluded land:-

Development excluded land means any part of a lot:

(a) that is land zoned Environmental Protection; or

(b) that is designated on the Map as Protected Area - Environmental Constraint Area together with any buffers required by the Council to protect any such areas; or

(c) on which any Schedule 3 environmentally sensitive vegetation unit is located, together with any buffers required to protect that unit; or

(d) that is the habitat of any threatened species, populations or ecological communities within the meaning of the Threatened Species Conservation Act, 1995, the development of which would have a significant effect on the threatened species population or ecological communities as determined in accordance with section 5A of the Act; or

(e) on which any rare species of flora is located, together with any buffers required by the Council to protect that flora; or

(f) that comprises a watercourse or any buffers required by the Council to protect that watercourse; or

(g) that has a slope in excess of 20%; or

Land that would otherwise be development excluded land because it is steeper than a nominated slope, but is:

(a) less than 100 square metres in area; and

is taken not to be development excluded land, on the basis only of its slope.

23. Other instruments applicable to the land include:-

· State Environmental Planning Policy No 11 - Traffic Generating Development (“SEPP 11”)

· Sydney Regional Environmental Plan No 20 - Hawkesbury - Nepean River (“SREP20”)

· Blue Mountains Development Control Plan 26 - Bushfire (“DCP26”)

· Blue Mountains Development Control Plan 27 - Subdivision (“DCP27”)

· Blue Mountains Development Control Plan 10 - Character Guidelines- (“DCP10”)

Advertising

24. The development application was advertised and some 121 submissions (including two petitions with a total of 167 signatures) objecting to the development were received. Matters of concern expressed in these submissions include:-

· Non compliance with council’s codes and policies

· The land is too steep for this subdivision

· Adverse impacts on flora, fauna and watercourses

· Loss of aboriginal sites which contain artefacts

· No resolution of the bushfire problem

· Loss of amenity for surrounding areas

· Traffic hazards resulting from increased traffic in surrounding residential areas

· Many lots are too small for the area

· Loss of natural bushland

· Likely pollution of Glenbrook Creek

Council’s decision

25. The development application was refused by council on 22 June 1999 for the following reasons:-

1. The proposed subdivision would have an unacceptable adverse environmental impact on the locality.

2. The proposed subdivision is inconsistent with the aims, objectives and relevant zone objectives of LEP 1991.

3. The proposed subdivision is inconsistent with LEP 1991 as it would be amended by adopted Draft Amendment 25 - particularly sub-clauses 34.1 and 34.4.

4. The proposed subdivision is prohibited, in the absence of a SEPP 1 objection, by sub-clause 34.4 of LEP 1991.

5. The proposed subdivision does not comply with the provisions of DCP 27 - Subdivision.

6. The proposed subdivision is inconsistent with Sydney Regional Environmental Plan No. 20 Hawkesbury-Nepean River (No. 2 - 1997).

7. The proposed subdivision does not comply with the provisions of DCP 10 - Blue Mountains Town Character Guidelines.

8. The traffic generated from the proposed subdivision (and subsequent dwelling construction) would have an unacceptable traffic impact on surrounding streets.

9. The proposal would be a significant over-development of the site.

The evidence

26. On behalf of the respondent council, expert evidence was given by:-

· Mr N Kennan - town planner

· Mr G McVey - environmental engineer

· Mr P Koen - civil engineer

· Mr J Tolhurst - council’s deputy bushfire control officer

· Drs P and J Smith - ecologists

· Mr M Gronlund - geographic information systems analyst

In addition, evidence was given by:-

· Dr I McGregor - 10 Florabella Street, Warrimoo

· Ms A Kniha - 23 Florabella Street, Warrimoo

On behalf of the applicant, expert evidence was given by:-

· Mr R Lewis - town planner

· Mr G Pindar - traffic engineer

· Mr M Tooker - civil engineer

· Mr C Parker - engineering geologist

· Dr J McDonald - archaeologist

· Mr R Free - bushfire consultant

· Mr D Fanning - ecologist

The issues

27. A statement of issues was provided as follows:-

1. The proposed subdivision will have an unacceptable adverse environmental impact on the site.

(a) aims;

(b) objectives;

(c) relevant zone objectives;

(d) development criteria (Part 10);

(e) Environmental Constraint Area provisions of LEP 1991.

3. The proposed subdivision is inconsistent with LEP 1991 as it would be amended by adopted Draft Amendment 25, and in particular with sub-clauses 34.1 and 34.4 as proposed by the draft amendment.

4. In the absence of a SEPP 1 objection, the proposed subdivision is prohibited by sub-clause 34.4 of the LEP 1991.

5. The proposed subdivision does not comply with the provisions of the Respondent’s DCP 27 - subdivision.

6. The proposed sub-division is inconsistent with Sydney Regional Environmental Plan Number 20 Hawkesbury - Nepean River (No. 2-1997).

7. The proposed subdivision does not comply with the provisions of DCP 10-Blue Mountains Town Character Guidelines.

.

9. The proposal would be a significant over-development of the site.

10. The suitability of the site for the proposed development, given its topography, soil types and character.

11. The failure of the applicant to provide a detailed and comprehensive soil and water management plan to the Respondent with the Applicant’s development application.

28. The Court has assessed the points of contention between the parties having regard to the question whether the proposal is responsive to the constraints of the site and whether the impacts of the development would be significant and adverse.

Alleged site constraints include:-

(a) extensive rock outcrops and rock shelves

(b) watercourses (said to be rivers)

(c) the bushland setting

(d) threatened species

(e) archaeological sites

(f) the steepness of the site

(g) statutory requirements

It is submitted by the council that impacts arise from:-

(a) cut and fill associated with road and bridge/culvert construction

(b) works associated with drainage and sewerage

(c) the likely location of dwellings on some lots

(d) works associated with bush fire protection

Characteristics of the site

29. This site comprises two zones; namely the area upon which residential development can be reasonably expected to occur and the ECA which comprises a natural environment required by LEP 1991 to be protected. Some of the proposed residential lots are of concern because of impact upon rock outcrops and on archaeological sites whilst the principal concern involves impact on the ECA and the site generally.

30. The site comprises an attractive natural bushland setting with extensive rock outcrop and rock shelves, three watercourses and is well vegetated with numerous large trees and other native vegetation. Much of the site has gradients less than 20% but there are numerous locations where gradients of 33% exist with some instances of 45% in the vicinity of cliffs. Overall this is a sensitive site.

Engineering

31. Two important engineering considerations would affect the site as follows:-

a) Roads

32. Pursuant to the proposal the roads and the residential lots will not directly affect the ECA. However the main loop road surrounds this area and roads do cross the watercourses. Works directly associated with the subdivision which will affect the land comprise the roads and associated box culverts and works associated with sewerage, drainage and bushfire protection.

33. The proposed roads and associated bridges/culverts which will provide access through the site and to the proposed residential lots will result in the clearing of vegetation, extensive cut and fill, including removal or modification of significant rock outcrops and rock shelves. They will also traverse steep gradients in excess of 33% and three watercourses.

34. In conjunction with an extensive site inspection the Court considered plans showing the impact of these works. In summary the proposed box culvert crossings of the watercourses will require extensive fill materials; the 10 m wide road reserve may need to be widened by 2 m to provide an adequate verge on the low side; many batters will extend beyond the road reserve and into the lots; there is likely to be some 8,000 m3 of cut and some 4,500 m3 of fill; and some 240 m of retaining walls will be required.

35. Mr Koen (civil engineer) for the council was concerned that the road layout had not been designed to avoid steep grades, rock outcrops, watercourse crossings, to decrease road gradients, or to minimise site disturbance and reduce cut and fill.

36. On behalf of the applicant, Mr Tooker (civil engineer) and Mr Parker (engineering geologist) provided detailed engineering evidence in relation to engineering practices to demonstrate the means by which such a site could be developed, including such matters as geology, slope, stability, drainage and siltation. Construction techniques and site management methods relating to cliffline instability, runoff controls and sediment collection were described.

37. Mr Parker noted that the site had overall slopes of about 10% to 15% but there were benched areas and cliffs of up to 3 m in height resulting in slopes of up to 45%. The site does not have inherent instability problems and good engineering practices could avoid any risks associated with steeper slopes and the particular geological characteristics of the site.

b) Sewerage

38. The applicant proposed a pressurised system which would pump sewage from all lots to a single pumping station which would in turn pump to Sydney Water’s sewers. Sydney Water has advised that it does not favour the applicant’s system which would be owned and operated by the lot owners. Instead Sydney Water prefers provision of a conventional sewerage system which it would control thereby ensuring its effective long term management and maintenance.

39. Mr McVey, environmental engineer for the council had numerous concerns in relation to the development of this site. In particular he considered that the stormwater management plan is unsatisfactory or incomplete in relation to downstream nutrient pollution, erosion and sediment controls and watercourse protection. He regarded the cut and fill and site disturbance as excessive and the proposed development of watercourses and steep slopes inappropriate.

Bushfire considerations

40. Mr Tolhurst (bushfire control officer) was of the opinion that the overall fire rating of the site was “high”, taking into account the slope, aspect adjoining bushland fuel loadings and the nature of adjoining development. It presently carries maximum fuel loadings.

41. After development bushland would remain on the reserve land (ie. ECA) within the site and thus the bushfire threat would remain. As a consequence and consistent with the approach in DCP 27 fire protection zones (“FPZ”) are required.

42. In this case, according to DCP 6 the FPZ should be at least 25 m and comprise a 10 m fuel free inner zone (“FFIZ”) and a fuel reduced outer zone (“FROZ”). Allowing for the standard 8 m building setback and the 10 m road reserve the FROZ required would extend some 7 m into the ECA. Mr Tolhurst explained that it is not appropriate for such reserves to be utilised for this purpose because of the significant burden this would place on council resources. He acknowledged that there are areas in the suggested FROZ in the ECA which feature large areas of rock where fuel loadings would not be excessive.

43. Mr Tolhurst was also concerned that a number of proposed lots (ie. lots 1, 26, 27, 28, 37, 43, 44, 45, 46, 47, 54, 57, 68 and 69) variously have potential fire problems. He identified the need to reduce fuel loadings in adjoining reserves to reduce fire threat. However the provision of an appropriate FPZ on the lot might result in insufficient area for construction of a house. In some places there would be inadequate access and turning areas for fire fighting vehicles.

44. For the applicant Mr Free (bushfire consultant) explained that the site currently represented a bushfire threat to the adjoining residential properties which would be significantly reduced by the proposed development. Moreover, after development there would remain a relatively low threat of bushfire because the resulting urban/bushland interface would not have the existing dangerous north, north-west and south-west exposure. He considered that this development has the characteristics of infill development.

45. Mr Free accepted that the FPZ needed to be as wide as that specified by Mr Tolhurst which would include a 7 m wide fuel reduced area in the ECA. However he said that taking into account the width of the road and the house setbacks therefrom a FFIZ much wider than the 10m would be created. Further, because much of the ECA will be bordered by a road which would provide access and water supply fire fighting would be safer and more effective.

Flora and fauna

46. On behalf of the applicant, Mr Fanning (ecologist) provided a report which detailed the results of flora and fauna investigations conducted on the site and elsewhere in the vicinity in addition to a Flora and Fauna Assessment which he prepared in January 1999.

47. It was Mr Fanning’s opinion that the proposal would only remove a small area of vegetation. Habitats which are widely distributed, common and extremely well conserved would remain. The impacts would therefore be small in extent, localised in effect and acceptable in terms of biodiversity conservation because significant areas of bushland would be retained.

48. Mr Fanning did not agree that the site contained environmentally sensitive vegetation units or had high visual significance, nor did he consider that it supported areas of ecological significance. He did acknowledge however that two rare plant species may be removed. However such species are not listed as threatened under the Threatened Species Conservation Act 1995. Despite the existence of numerous rock outcrops and ledges on the site he did not accept that these were significant features.

49. In summary, Mr Fanning believed the development proposal constituted an appropriate balance between development and conservation. He opined that the proposed subdivision would be site responsive and would not impose any significant adverse environmental impacts on the natural environment. He said that the Blue Mountains region is characterised by extensive areas of the same or similar natural resources as are present on the site and which are protected within national parks.

50. Mr Fanning also carried out an analysis pursuant to s 5A of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) and concluded that the development of this site is not likely to impose a significant effect on any threatened species or populations or ecological communities or their habitats and no species impact statement is required.

51. Drs Smith (ecologists) who testified for the council were critical of the Fanning reports for several reasons. A viable local population of Red Crowned Toadlets, a threatened species, was discovered on the site. As a consequence, an 8 part test as stipulated by s 5A of the EP&A Act was required. It was their opinion that the removal of bush rock, watercourse degradation and urban development generally comprised threatening processes that could result in a significant impact on the species. They also expressed concerns regarding the existence on the site of other vulnerable species being the Yellow-bellied Glider, the Squirrel Glider and the Eastern Pygmy Possum which has been the subject of a preliminary determination and which is listed as a threatened species. Accordingly they believed that a species impact statement is required.

52. In addition Drs Smith were concerned about a number of unusual plant species on the site as well as the nationally rare plant species, Lomandra fluviatilis, Lissanthe sapida and the regionally significant plant species, Gratiola penduculata.

53. They were also generally concerned as to the removal of some of the extensive rock outcrops and rocky escarpments that characterise the site and which comprise valuable habitat.

54. In a supplementary statement, Mr Fanning rejected the criticisms of Drs Smith. In relation to the Red Crowned Toadlet, the Yellow-bellied Glider, the Squirrel Glider and the Eastern Pygmy Possum he acknowledged possible impacts but argued very strongly that in terms of s 5A of the EPA Act the development was not likely to have a significant effect on these species. In the circumstances he considered that a species impact was not required.

55. Mr Fanning concluded that even though there would be site disturbance and native vegetation removal it was not a matter of critical concern. He also noted that the vegetation communities on the site are abundant in the locality and the region and are extremely well conserved.

Archaeology

56. For the applicant Miss McDonald (archaeologist) referred to aboriginal sites on the land namely; a camp site and two axe grinding groove sites. The camp site is described as an open artefact scatter and is the only site which is likely to be impacted. It is located across the boundary of proposed residential lots 18 and 24. The two grinding groove sites would be located in open space.

57. These sites were identified in a 1998 report prepared by Miss McDonald’s consulting company which recommended that the camp site needed to be further investigated to determine the significance of the site. This work has not been completed. Once it has been completed and the likely impacts of the proposal determined, management recommendations could then be made and an application lodged with the National Parks and Wildlife Service (if necessary) for a consent to destroy or interfere with the site.

Planning overview

58. For the applicant Mr Lewis (town planner) considered the expert reports which dealt with drainage, sedimentation, geotechnical, topographical, flora and fauna, bushfire, archaeology and was satisfied that all of these matters had been properly addressed and the application could proceed to approval.

59. Mr Lewis also considered site density in terms of cl 34.1 of LEP 1991 and concluded that because the proposed density was only marginally greater than is allowed by LEP 1991 this was not a matter of concern. He referred to the SEPP No 1 Objection which states that the development standard would allow 70.39 lots and that the proposal exceeds this standard by 1.61 lots or 2.29%. He considered that non compliance was minor and strict compliance would be unreasonable and unnecessary. In further support he explained that no additional road or drainage works are required; the proposal represents the proper management and development of the land; the subdivision has had full regard to the particular aspects of the land; it makes optimal use of existing infrastructure; it is a natural extension of the village of Warrimoo; and it is consistent with the underlying purpose of the development standard being to allow a reasonable density having regard to the constrains of the site.

60. For the council Mr Kennan (town planner) was concerned that the applicant seeks to maximise lot yield with little or no regard for the environmental consequences. He was especially concerned in relation to the conflict with cll 34.1 and 34.4 of Amendment 25 which when applied to this subdivision resulted in 65 of the 72 lots not complying with the proposed requirements.

61. Mr Kennan also considered the expert reports and believes that they demonstrate the potential impacts on flora and fauna, natural features and archaeological deposits are significant and adverse. He considered that the integrity of the site’s bushland setting will not be maintained by the proposal. These impacts arise from the subdivision, its services, bushfire mitigation and the resultant erection of dwelling houses.

62. Significant and adverse impacts on the environment of the site would arise as a result of the following matters which he identified and conveniently summarised by him as follows:-

(a) There has been no attempt to reduce the adverse impact on the vegetation on the Site;

(b) Adequate buffer zones have not been provided to protect the integrity of the significant vegetation on the Site or the watercourses which traverse the Site;

(c) The proposed subdivision would have a major impact on the population of identified threatened species over the longer term;

(d) The impact of the development will not be confided to the development site itself but can be expected to extend well beyond its boundaries;

(e) Bushfire protection measures necessary to protect the residential development which will result from the proposed subdivision will involve clearing or thinning of native vegetation within the lots and also probably beyond the outer edge of the development. The bushfire protection measures will have an adverse impact on the vegetation units both within and beyond the Site.

(f) The construction of the proposed roads within the subdivision will have a significant impact on the environment of the Site and the downstream water quality due to the extensive engineering works involved in constructing those roadways.

(g) The construction of the proposed watercourse crossings will result in a significant disturbance to the environment of the Site with a commensurate impact on the major unnamed gully traversing the Site.

Court’s findings

63. The Court has been persuaded by the evidence of the respondent that on balance the proposal is not sufficiently responsive to the constraints of the site and as concluded by Mr Kennan it would have significant and adverse impacts on the site caused by engineering requirements especially for road and culvert construction and removal of rock outcrops and vegetation. In summary the proposal should be rejected for the reasons set out hereunder.

a) Engineering aspects

i) Whilst adequate roads can be provided and safely constructed and bush fire protection provided, the impacts, particularly upon the ECA will be unsatisfactory. This would be inconsistent with objective (a) which seeks to protect environmentally sensitive land and areas of high scenic value.

ii) In addition, the significant extent to which the roads and the likely of some of the lots would involve steep land and rock shelves and outcrops would be inconsistent with cl 10.2(b) and 10.5(d)(v) of LEP 1991. Significant amounts of cut and fill are a relevant consideration as well as the removal of an estimated 3,500 m3 of surplus fill.

iii) One of the particular concerns of the council was the impact of the proposal on the three watercourses which traverse the site. Three box culverts are proposed to provide road crossings but the proposed methods of construction have not been finalised. Given the nature of such box culverts and especially considering the likely size of the culvert between lots 24 and 25, significant works including fill and or retaining walls will be required. Such works would be contrary to cl 10(5)(iv) of LEP 1991. The council would have preferred that bridges be provided. Given the sensitive nature of this site, the details provided for such important infrastructure is clearly inadequate.

iv) The applicant’s proposals for sewerage disposal are unsatisfactory. The disposal of sewerage by a system of privately operated and controlled pumps is contrary to accepted practice as recommended by Sydney Water. Such proposal is novel and in the absence of support from the relevant authority, that is, Sydney Water and in the absence of any precedent for such system the proposal is rejected.

v) Regarding drainage and sedimentation, while such matters potentially could have significant effects the Court concludes they could have been dealt with by the provision of more detailed plans and conditions of consent.

b) Fauna and flora and bush fire considerations

i) The Court accepts the evidence of Mr Tolhurst that to achieve an appropriate FPZ part of the ECA would need to be subject to fuel reduction. Given the existence of significant outcrops the suggested 7 m may not however be required. Nevertheless it would result in an impact on the ECA in terms of loss of natural vegetation which should be avoided. Such impact would be compounded by Mr Koen’s requirement for the main road through the site to be widened and the need to extend retaining walls or batters and associated cut and fill into the ECA. These impacts would no doubt result in interference with vegetation and the topography including rock shelves and rock outcrops. Such works will, according to Drs Smith, result in the loss of valuable habitat.

ii) As for the matter of threatened species I have been persuaded by the evidence of Mr Fanning that the proposal is not likely to have a significant effect thereon. Accordingly this aspect would not have been critical to the application. Despite this, greater attention could have been given to the rare or unusual species of plants which were discovered on the site by Drs Smith.

c) Draft Amendment 25

i) Amendment 25 was the subject of much debate. Mr Robson for the council submitted that the plan was “certain and imminent” but even if it were not, its objectives are clear and there is no suggestion that these are not being pursued by the council. Such objectives are clearly relevant to this site. The Court is required to take into consideration the requirements of the draft Amendment 25 pursuant to the provisions of s 79C of the EP&A Act. In view of the almost certain prospect that the draft will be adopted, the Court must pay regard to the fact that there will be non compliance with the proposed standards by 65 of the 72 lots as detailed by Mr Kennan. While not being determinative, this consideration adds to the unacceptability of the proposal, in accordance with the principles referred in Walker v North Sydney Council (2000) 110 LGERA 397 at 404; Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138; Edward Listin Properties Pty Ltd v North Sydney Council (No 2) [2000] NSWLEC 181; Mathers v North Sydney Council [2000] NSWLEC 84.

Orders

64. Having taken into consideration all of the relevant matters required by s 79C(1) of the EP&A Act, it is the decision of the Court that the present proposal is unacceptable and that the appeal should not be upheld, for all of the above reasons.

65. The Court therefore orders:-

1. The appeal be dismissed.

2. Exhibits be returned.