Cecil D Barker and Co v Blue Mountains City Council

[2001] NSWLEC 244

Land and Environment Court

of New South Wales

CITATION:	Cecil D Barker & Co v Blue Mountains City Council [2001] NSWLEC 244
PARTIES:	APPLICANT Cecil D Barker & Co RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	10915 of 2000
CORAM:	Sheahan J
KEY ISSUES:	Development Application :- major planning instrument amended while judgment reserved - reopening of case - compliance or consistency with plan objectives and requirements - flora and fauna - soil and water management
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Bendent Pty Ltd v BMCC [2001] NSWLEC 33; Coffs Harbour Environment Centre Inc v Coffs Harbour City Council & Anor (1991) 74 LGRA 185; Hawkes v BMCC (No. 10648 of 1997, 24 April 1998); John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs & Planning & Ors [1999] NSWLEC 213; J S Heap Constructions Pty Ltd v BMCC [1997] NSWLEC 170
DATES OF HEARING:	19/02/01-23/02/01, 4/4/01, 18/5/01, 15/6/01, 21/9/01, 2/10/01-4/10/01
DATE OF JUDGMENT:	12/21/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr J Webster (Barrister) Pike PIke & Fenwick (Solicitors) RESPONDENT Mr J E Robson (Barrister) McPhee Kelshaw (Solicitors)

JUDGMENT:

CECIL D BARKER & CO

Applicant

v

BLUE MOUNTAINS CITY COUNCIL

Respondent

JUDGMENT

Introduction

1. This is a class 1 appeal against the refusal by the Respondent (“Council”) of an application for subdivision of land at the eastern end of Heather Road, Winmalee (lot 41 DP 209343, sometimes identified as 35 Heather Road, Winmalee – “the subject land”).

2. Under the two relevant local environmental plans (“LEP”) the proposed subdivision is permissible with consent.

3. The appeal was lodged on 18 September 2000 and came before me for a five day hearing 19 to 23 February 2001.

4. A major issue at that hearing was the question of whether an important and highly relevant amendment (“Amendment 25” - Exhibit C7) to the more relevant of the two relevant LEPs, namely LEP 1991 (Exhibit C3), was “imminent and certain”.

5. I reserved my decision on the appeal on 23 February 2001, and, while the judgment was in preparation, Amendment 25 was made by the Minister, on 23 March 2001 (see now amended consolidated LEP in Exhibit C39).

6. Leave was subsequently granted to the applicant to reopen its case, and to rely on amended plans, and some additional expert evidence, and the hearing continued on 2 to 4 October 2001.

7. The applicant now seeks the court’s approval for subdivision of the controversial area of the subject land into 15 lots, instead of the originally proposed 19 (see amended plans in Exhibit A17).

8. Many of the issues raised at the February hearing remain unresolved between the parties (see final statement of issues in Exhibit C38).

9. The court had the benefit of a comprehensive site inspection during the February hearing, and has concluded that development consent should be refused.

Principal Witnesses

10. The following experts gave oral evidence on matters of contention between the parties to this appeal:

(1) For the applicant

Ian Maher , consultant town planner, and formerly manager of the Council’s town planning service for 11 years ( Exhibit A5 and Exhibit A19 ).
F Dominic Fanning , Environmental Scientist, and Principal of Gunninah Environmental Consultants ( Exhibit A11,Exhibit A20, and Exhibit A21 ).
Stephen Webb , Civil Engineer and Hydrologist, and Principal of Webb, McKeown and Associates Pty Ltd since 1983 ( Exhibit A6, Exhibit A7 and Exhibit A12 ).
Paul Hewitt , Principal Geotechnical Engineer for PPK Environment and Infrastructure ( Exhibit A18 ).

(2) For the Council

Neil Kennan , consultant town planner and Principal of Nexus Environmental Planning Pty Ltd since 1992 ( Exhibit C1, Exhibit C40 and Exhibit C42 ).
Paul Koen , Council’s Principal Development Engineer ( Exhibit C14, Exhibit C23, Exhibit C24, Exhibit C25, and Exhibit C26 ).
Peter Smith , Consultant Ecologist, specialising in the Blue Mountains area ( Exhibit C15, Exhibit C31, Exhibit C32, Exhibit C41, Exhibit C43 and Exhibit C46 ).
Rick Morse , Consulting Environmental Scientist, and Principal of Morse McVey & Associates Pty Ltd ( Exhibit C37, Exhibit C44 and Exhibit C45 ).
Geoff McVey , Consulting Civil and Environmental Engineer, and Principal of Morse McVey & Associates Pty Ltd ( Exhibit C19, Exhibit C27, Exhibit C37 and Exhibit C44 ).

11. Council also called a neighbouring objector, Greg Thompson (Exhibit C13 and Exhibit C28), and both parties tendered a substantial number of other expert reports.

The subject land, and its setting

12. The development site on the subject land is currently vacant land, and slopes generally to the east, with a gradient not greater than 20%. It is in a seriously disturbed state, with a medium cover of natural vegetation.

13. The subject land apparently has some history as an orchard, but an aerial photograph (in Exhibit A3), flown on 22 July 1995, shows that by then it had been cleared, apparently at least partly in consequence of fire in 1994. There is evidence of some (perhaps orchard) trees having been removed, and of the re-establishment of the understorey, but it would appear that no truly “significant” trees are affected by the proposed development (see Exhibit A10).

14. The subject land has a total area of 36.29ha, of which about 33.6ha is zoned “environmental protection” (“EP”).

15. About 2.3ha is zoned “residential bushland conservation” (“RBC”), and has a “zone subscript” indicating that it may be subdivided to a maximum of “8 lots per ha”.

16. That RBC land is the controversial area of the development site. There was some dispute during the February hearing about the actual location on the subject land of relevant zone boundaries, but, after a conference between surveyors, the parties agreed that the notional area of RBC land available for this proposed subdivision development, is 2.324ha.

17. A further 3,530m2 of the subject land is zoned “residential 2(a1)” under LEP No.4 (Exhibit C21).

18. Before the enactment of LEP 1991, the relevant areas of the subject land, including that area now zoned EP, were zoned “Rural 1(A1)” (see Exhibit C36).

19. Stormwater currently drains across the land and goes over the escarpment, but this development would put some control on that. Below the escarpment the land slopes steeply into the EP zone towards the upper tributaries of Fraser’s Creek. The subdivision proposal includes construction of engineering works which will direct site runoff to sediment basins at various points on the escarpment. Those basins will drain naturally over the ground to the valley floor. The perimeter road design includes a 10m additional visual buffer zone to the escarpment. The proposed road will be located within the EP zone and will operate also as a “fuel reduced” buffer zone.

20. There are rock outcrops throughout the site, and power lines also traverse the eastern and southern sections of it. The land is fully serviced with power, telephone, water and sewerage. It is bounded on the north and south by public reserve, and privately owned bushland zoned EP; on the east by crown reserve; and on the west by residential development. It is currently used as an informal recreation area by residents of the surrounding area.

21. Two rock overhangs with “potential archaeological deposit” from an Aboriginal point of view were found in the EP zone outside the development area, and, provided they are avoided, neither the local Aboriginal Land Council, nor the National Parks & Wildlife Service took any objection to the original proposal, or the later one.

22. An internal memo within the Council (Exhibit A2 fol 68) contained the following comment:

The site contains a form of shale-sandstone transitional forest - particularly the area proposed for subdivision, including specimens of Eucalyptus deanei, Mountain Blue Gum, on top of the ridge within the development area. If this area is to be developed, it would be preferable if the remaining vegetation - already recognised as significant through the EP zoning - be further protected by dedication as public reserve.

23. One of the experts relied upon by the applicant, but not required for cross-examination, was Dr Richard Lamb, who is well known to the court. Lamb says (Exhibit A9 p4):

The proposed site is located on the most eastern tip of the spur, before it descends to the vegetated valley below. Vegetated valleys also separate the site from adjacent residential areas, themselves located along ridges running generally in a east west direction.

24. He described the existing development on Heather Road as of mostly modest single or two storey construction, dating to various periods in the mid to late 20th century, and displaying a range of architectural designs and styles. He also observes much variation in the design of the landscape treatment, both to the roadside and within individual residential gardens. “Roadside treatment varies from mature and remnant native tree species to open grassy verges. Many exotic tree species are also present” (Exhibit A9 p5).

25. He observes that the visual character of the proposed site is presently dominated by the existing woodland vegetation covering the land subject to the subdivision proposal. His vegetation is characterised by trees to a height of 20 metres, shrubs and small trees to a height of 5 metres and herbs, grasses and weed species to a height of 1.5 metres. Most of the trees on the site are between 8 and 12 metres high. Much of the site has been cleared in the past and as such, a majority of the trees growing on the land are young regrowth in a number of extensive areas of even aged stands. He concludes, inter alia (at pp 8-9):

Taken overall, the proposal would make significant changes to the intrinsic character of the site itself and lesser changes to the visual catchment overall.

The level of change to the intrinsic character of the locality was judged to be low on the following basis:

· The appearance of the site would be changed from its present condition, but not in a way that in (sic) unexpected in the locality:

· There would be few locations in which the changes to the site would be visible:

· The subdivision proposed is not of a design substantially different to that evident in other subdivisions constructed nearby recently, for example in Muru Avenue, Halcyon Avenue, Shakespeare Drive, Tristania Way and Syncarpia Way: and

· The development would be of a scale relevant to and already evident within the immediate visual catchment.

…
The capacity of the locality to absorb the development visually was judged to be high.

The subject proposal as amended

26. The 15 lots now proposed to be established on the RBC land will front the perimeter road, and their layout is best depicted in the revised bushfire protection map (Exhibit A16). During negotiations on fire issues, the basic layout of the RBC land subdivision and the building envelopes were agreed upon (see Exhibit A16). Only single detached dwellings will be built on these lots, and each will be the subject of an application under LEP 1991 and Development Control Plan (“DCP”) 26.

27. There will also be one non-controversial lot within the residential 2(a1) section of the subject land (proposed lot 16), which will front Heather Road west of the existing subdivision. Lot 17 (approx 33ha or more than 90% of the subject land) is, commendably, to be dedicated as public reserve. Lot 18 (50m2) will contain a sewer pumping station and be transferred to the ownership of Sydney Water upon completion of the subdivision.

28. Nine of the 15 lots on the RBC land will have some EP land within their configuration (see Exhibit A16, but c.f. Exhibit A19 pp 2 and 12 – the court includes lot 15 in that count).

29. Lot sizes vary markedly between 779.6m2 (lot 9) and 3587m2 (lot 16) with most between 800m2 and 1317m2 (Exhibit A19 p2).

The relevant planning instruments

30. The court must determine the amended application in accordance with the various planning instruments and controls as they now apply to the site.

SREP 20

31. Mr Kennan (Exhibit C1) draws attention to the fact that as the site is located within the catchment of the Hawkesbury/Nepean river, it is subject to Sydney Regional Environmental Plan No.20 (“SREP 20”), which requires the court to have regard to total catchment management, environmentally sensitive areas, water quality and flora and fauna. He opines that these matters are adequately covered in the assessment of the application against the provisions of the relevant LEPs and DCPs.

LEP 1991, as amended

32. LEP 1991, as amended (Exhibit C39), contains the following relevant “principal objectives for the City” (cl 3.1):

(a) Maintain the unique character of the City

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.

(b) Urban Containment

To concentrate and contain the spread of urban development.

(c) Environmentally 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.

(e) Town Character

To improve the physical quality of life to residents of the Blue Mountains.
…

33. Amendment 25

(Exhibit C7), now made by the Minister, had the following stated aims (cl 2):

(a) increase the strength of the objectives contained within that plan as a test against which development must relevantly be assessed, and
(b) improve the clarity of the objectives with respect to the Residential Bushland Conservation zone, and
(c) replace the definition of ‘Usable Land Area’ with two definitions, one relating to the area which may notionally be suitable for development, and the other relating to land that is unsuitable for development, and
(d) clarify the operation of building site cover and principal development area provisions, with particular regard to the potential for both to apply to a single lot or development, and
(e) alter the subdivision provisions, so that each new lot has suitable land for future development and so that the number of lots created by a subdivision in the Residential Bushland Conservation zone for which a zone subscript of (8/ha) is specified on the map supporting that plan, more directly reflects the environmental capacity of the land, and
(f) clarify the intent that the principal development area provisions do not apply to subdivisions.

34. In Mr Robson’s view, Amendment 25 elevated issues of general environmental concern to matters for specific and close consideration in the assessment process (T4.10.01 p55).

35. The LEP’s RBC zone now has the following objectives (Exhibit C7 cl 6.3):

(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 watercourse 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 bush fire 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.

36. The EP zone has the following objectives (Exhibit C39 cl 6.8):

(a) To protect environmentally sensitive land and areas of high scenic value in the City from development.
(b) To provide a buffer around areas of natural ecological significance.
(c) To restrict development on land that is inappropriate by reason of physical characteristics or high bushfire hazard.
(d) To encourage the restoration of disturbed bushland areas.

37. As defined by cl 8(b), the “zone subscript”, or endorsement, “8/ha”, on the zone map, indicates a density control provision expressed as lots per hectare (see par 15 above).

38. Under the heading “General Control of Development”, cl 9.3 now provides:

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 of 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. (emphasis added)

39. Prior to its amendment in March 2001, cl 9.3 concluded with the concept “consistent with … objectives”. Such wording has been defined in the case law as meaning “not antipathetic to”, and it is a serious issue between the parties as to whether the new wording has any substantive effect. See, e.g., Coffs Harbour Environment Centre Inc v Coffs Harbour City Council & Anor (1991) 74 LGRA 185, per Clarke JA at 190-3.

40. Clause 9.1 provides:

With the consent of the Council, development for the purposes of any activity, building, place or work specified in the Table may be carried out on land within a zone where ‘C’ is shown in the Table.

41. Those uses designated “C” in the Table, in respect of the RBC Zone, relevantly include bushfire hazard reduction, drainage works, dwelling houses, roads, subdivision, and utility installation.

42. Those endorsed “C” in EP zone are bushfire hazard reduction, drainage works, national park, recreation area, roads, subdivision, utility installation and walking track.

43. Among the provisions grouped (in cl 10) as “Development Criteria - General”, the following relevant provisions now occur:

10.2 Access
…
(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.
…

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 development 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:

(ii) mitigates the adverse environmental impacts of those measures to the maximum extent practicable.
(da) The Council shall not consent to development for the purposes 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 any 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 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.

44. Clause 10.9 deals in some detail with limitations on building site cover.

45. Schedule 3, under the heading “Environmentally Sensitive Vegetation Units”, includes the following:

(e) Open Forest, Tall Open Forest (Alluvial Forests)

These only occur along certain perennial streams in the lower Blue Mountains where the plant community is dominated, in terms of overall biomass and height, by substantially pure stands of Eucalyptus deanei (Round-leaved Gum or Deane’s Gum).

…
(h) Open Forests, Tall Open Forests

These occur on ridgetops and upper sideslopes and include -
(i) any open forest community and any tall open forest community dominated by Eucalyptus oreades (Blue Mountains Ash) and the associated understorey shrub and herb layers of that community; and
(ii) any open forest community and any tall open forest community dominated by Eucalyptus deanei (Round Leaved Gum or Deane’s Gum) and associated understorey shrub and herb layers of that community.

46. Clause 17.3 facilitates the “carrying out by persons carrying on public utility undertakings, being water, sewerage, drainage, electricity or gas undertakings, of any of the following development, being development required for the purposes of their undertakings …”

and lists relevant servicing works.

47. Clause 34 deals with “Subdivision”, and the following provisions, as they now occur, are noted:

34.1 General Provision
(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 m 2 , 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.
…

34.4 Residential Bushland Conservation Zone - Special Provisions
(a) Where a Density Control Provision is shown on the Map, subdivision of the land, in accordance with clause 34.1, to a density exceeding that shown is prohibited.
(b) 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%.
(c ) The Council may only consent to subdivision of land shown RES-BC (NS), RES-BC (CONS) or RES-BC with a Minimum Area Requirement on the Map if -
(i) it is for a boundary adjustment where no additional lots are created; or
(ii) it is for the purpose of providing land for public purposes.
…
34.9 Environmental Protection Zone - Special Provisions
The Council shall not consent to subdivision where any lot created consists entirely of land within the Environmental Protection zone unless the only purpose of the subdivision is to provide land for public purposes.

added to LEP 1991 the following definitions of “cluster housing development” and “development excluded land” (LEP 1991 sch 4, Exhibit C39 pp 92-3), and deleted a definition of “Usable Land Area”:

“ cluster housing development ” means the development of land, containing an area of development excluded land, designed and for which consent is granted as an integrated whole and involving:

that is subject to a scheme for joint ownership or a neighbourhood or a strata scheme.

“ Development excluded land ” means any part of a lot:

(h) comprising any significant landscape or special feature, such as rock outcrops and escarpments, which in the opinion of the Council is worthy of preservation.

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
(b) is not within 20 metres of other land steeper than the nominated slope,
is taken not to be development excluded land, on the basis only of its slope.

49. Schedule 4 to LEP 1991 (Exhibit C39 p 98-9) also contains the following definitions added by Amendment 25:

‘ 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.

‘ Rare species of flora’ means any flora species listed in the publication entitled ‘Rare or Threatened Australian Plants’, Briggs & Leigh, 1995 Revised Edition.

DCP 27

50. DCP 27 “Subdivision” (Exhibit C4) came into force on 6 January 1999, and its aims are set out in the following terms (in the Introduction):

1. Promote a high standard of subdivision and development that is environmentally, culturally and historically sensitive to the unique settings of the Blue Mountains and that enhances the natural values and cultural character.
2. Define appropriate forms of subdivision that satisfy the diverse needs of residents, land uses and a range of lifestyles that are in character with the existing surrounding subdivision pattern.
3. Ensure that subdivision matches the capacity of infrastructure services and community facilities and to utilise them in the most efficient and effective manner.
4. Encourage energy efficient design, that is safe from the relative bushfire threat, that is designed to give due consideration to soil erosion and sedimentation control and water quality.

51. The objectives of the “Site Analysis” section (Part A of the DCP) on flora and fauna are as follows:

· To conserve the biological diversity and promote the recovery of threatened species, populations and ecological communities

· To conserve any threatened species, populations and ecological communities

· To ensure the development does not adversely affect any environmentally sensitive and significant vegetation units

· To ensure the subdivision is carried out in an environmentally sensitive manner

· To minimise necessary site disturbance and loss of vegetation

· To ensure the retention and rehabilitation of significant natural bushland

· To remove and limit spread of noxious and environmental weeds

· To ensure the retention of potential habitats of native fauna

· To minimise impact of development upon all native flora and fauna

52. The relevant “performance standards” are:

…
1.2 A flora and fauna assessment may be required to cover land beyond the development site, particularly if establishing the extent of habitat in an area, or if the site is part of a natural corridor for flora and fauna.

1.3 If threatened species are known to be present on the site or are likely to use the site because suitable habitat occurs, then the significance of the impact of the proposed development on threatened fauna should be assessed.
…
1.5 If Council is of the opinion that the proposed subdivision is likely to have a significant impact on threatened species then a Species Impact Statement will be required.
…
1.7 Any processes which are related to the subdivision including bushfire mitigation measures, provision of utilities, roads, drainage and the like, are not to adversely impact on endangered flora and fauna or their habitat or any necessary buffers.
1.8 Buffers are to be of sufficient size to protect threatened species, population and ecological communities from impacts of development.

53. “Control” No. 2.4 is also relevant:

The study must cover the entire site, and land beyond the site particularly if establishing the extent of habitat in an area or site if the site is part of a natural vegetation corridor.

54. The “Site Analysis” part of DCP 27 also has sections on Aboriginal Archaeology and Watercourse Protection. Performance standard 1.1 of the Aboriginal Archaeology section provides:

Assessment of Aboriginal Archaeology is to form an integral part of subdivision design in order to adequately identify items of significance or potential significance, appropriately assess the impacts of the proposal on the items, where necessary formulate and implement Conservation Plans of Management and record historical data.

55. In the “Technical Design” section (Part B of DCP 27) the objectives of the “Allotment Design Principles” section are stated as follows:

· To create commercial and industrial allotments, that are of a suitable size and lot configuration for commercial and industrial uses permissible within the zone

· To create residential allotments that have adequate area for a dwelling, private open space, vehicle access, car parking and sufficient solar access

· To create allotments that are of reasonable slope and able to be protected from bushfire, without adverse impact to the environment

· To protect watercourses, sensitive vegetation units and rare and endangered flora and fauna

· To create allotments that respect the significant natural attributes of the site and the character of the area

· To create allotments that meet the objectives and provisions of the LEP of the subject site

· To create allotments that are adequately serviced, without adverse environmental impact.

56. Section 1.2 (p 9) provides as follows in respect of “Lot Shape and Size”:

1.2.1 All lots must have a suitable area of land in a reasonable contiguous configuration, capable of accommodating uses permissible in that zone. The area is not to comprise land that is:

§ Mapped Environmental Constraint Areas

§ Steeper than 1:5 (20%)

§ Zoned Environmental Protection

§ Containing Environmentally Sensitive Vegetation Units or their buffers.

§ Watercourses or their protective buffers

§ Habitat of threatened species that has been identified for retention.

§ Access corridor of hatchet shaped allotments

§ Within the minimum building setbacks requirements

1.2.2 All allotments are to be capable of accommodating a building envelope that complies with the minimum setback for that type of development, in accordance with the relevant LEP, policy or performance standard.
1.2.3 Lots within the commercial/business/industrial/employment zones are to have due regard to existing land-use patterns and will be determined on a ‘use specific’ basis.
1.2.4 Hatchet shaped lots in commercial/business/industrial or employment zones will only be supported in exceptional circumstances.
1.2.5 Frontage dimensions of lots within commercial/business/industrial/employment zones are to be designed on a merit basis, having due regard to the proposed land use, building envelope, access and egress, on-site manoeuvrability of vehicles and parking.
1.2.6 All proposed lots are to be designed to provide adequate on-site parking, manoeuvring and loading facilities in accordance with Council’s Car Parking DCP.

57. In the “Bushfire Management” section the following relevant controls are provided for:

2.1.3 Fire Protection Zones, Fire Trails and Perimeter Roads are not acceptable on land which is:

· Zoned Environmental Protection; or

· designated on the Map as Environmental Constraint Area, together with any buffers required to protect any such areas; or

· on land zoned under LEP 1991, which any Schedule 3 Vegetation Unit is located, together with any buffers required to protect that unit; or

· on land which is required to be excluded from development in order to protect the habitat of any endangered or vulnerable species of fauna or flora, as nominated under the Threatened Species Conservation Act; or

· on which any rare species of flora is found; or

· which comprises a stream or any buffer required to protect that stream; or

· has slope in excess of 20%.

58. Section 2.2 deals with the specifications for “perimeter roads” in the following terms:

2.2.1 Perimeter roads in subdivision are to have the following minimum specifications:

· 5.5m wide seal,

· vertical kerb and gutter on the fire source side of the road,

· roll top kerb and gutter on the development side of the road,

· 1 metre wide mountable verge,

· have adequate turning facilities for emergency vehicles.

2.2.2 Long ‘dead end’ sections of road are not acceptable
...

59. Part B of DCP 27 also contains controls in respect of access, drainage, services, and open space. The Council’s particulars in respect of its Issue number 4 (p7) assert:

The provision of roads and internal lot access will have a significant environmental impact on land zoned Environmental Protection. The proposed development does not comply with the following objectives:
Public Access (page 13)

· To minimise environmental impact (page 13).

· To minimise environmental and visual impact (page 14).

(f) Drainage – page 15:

· (Objective) to maintain existing natural draining catchments.

· 1.1.7 – whether appropriate level of environmental assessment has been undertaken in relation to the impact of the required drainage works on the site.

(g) Services – page 17:
The provision of services within the site will have a substantial environmental impact and will not comply with the following provisions:

· (Objective) to minimise environmental impact.

· Clause 1.1.1, which requires the restriction of extension of mains through land zoned Environmental Protection.

(h) Open Space – page 18:
The proposed development does not provide adequate open space, with the proposed public reserve (lot 21) being inadequate.

60. Part C explains how to calculate maximum lot yield under LEP 1991. Each lot must contain more than 720m2 of land which is not “development excluded land”. Steep land of slope greater than 20% is excluded.

DCP 10 “Blue Mountains Town Character”

61. DCP 10 was adopted in 1991 (Exhibit C5), and sets out “Character Guidelines”.

62. In its introductory paragraphs it notes that “a unique cultural landscape has developed that is rich and diverse - and very different from the plains of suburbia”. “Growth and change will occur - but it must be compatible with the special and unique qualities of this ‘City within a National Park’”.

63. Under the title “Setting” the plan notes “The tree canopy and bushland vistas should remain. The setting should generally be more dominant than the buildings. Developments should be designed to fit the site - not the setting altered to fit the development”.

64. Under the heading “Building in Bushland” the plan notes:

The Mountains offers many opportunities to enjoy a unique relationship with nature by living within bushland. At the same time, it involves special responsibilities to protect the fragile ecology and bushland character…

It is preferable to fit the building to the land rather than attempt to modify the land to fit the building. The natural features that made the land attractive in the first place should be conserved. Development should value and respect that which has taken millions of years to evolve and adapt.

65. In the brochure regarding “Site Planning & Subdivision Design” it is noted:

The interaction of the built environment with the natural environment over the years of development has achieved residential environments where bushland, trees and vistas touch upon the majority of households.

66. Later, under the heading “Planning Qualities” the following is noted:

Dominance of nature over the built environment is a recurring ‘Mountains’ theme. Wherever one looks there are trees and bushland. Buildings rarely penetrate the tree canopy to become visible on the skyline. Buildings remain mere incidents in the total landscape. Soft natural edges should continue to predominate. Developments should remain visually unobtrusive.

DCP 26 “Building in Bushfire Prone Areas”

67. Council’s DCP 26 (Exhibit C6) sets out “Best practice landscape/garden design” which, in this case, are reflected in the agreed conditions regarding bushfire.

Council’s position and issues

68. The Council concedes that some form of development may be appropriate for the subject site, but contends that the impact of the subject application will be adverse and significant, representing an overdevelopment.

69. In 1994 Council approved a subdivision proposal, but that approval lapsed on 24 August 1997 (see Exhibit A2 folios 208ff). The planning instruments as they now stand make specific provision for cluster-type developments, but the Council does not submit that that is necessarily appropriate for the site (T4.10.01 L48-54).

70. The current application was lodged with the Council on 28 February 2000. This appeal was lodged against its deemed refusal on 18 September 2000, and the Council actually refused the application on 26 September 2000.

71. Council officer Johnson’s lengthy Assessment Report (Exhibit A2 fols 87-105) noted numerous public submissions covering matters such as loss of vegetation, out of character, traffic impacts, bushfire risk, impacts on flora and fauna, and pathogens from vent pipe. He noted that Sydney Water made no response to an inquiry regarding the vent pipe, but Sydney Water finally responded on 29 November 2000 (Exhibit A2 fol 106-116).

72. Johnson surveyed the relevant planning instruments and DCP, noted some inconsistencies with the zone objectives and their achievement (see fol 99), and recommended refusal.

73. He noted in his summary (Exhibit A2 fol 105) that “this is a very difficult site to achieve an acceptable development proposal”. He listed several reasons he considered the proposal inappropriate, including “out of character cf surrounding residential bushland character”, and “overdevelopment”. He concluded “In addition, non compliance with Clause 34.1 & Zone Objectives (and hence Clause 9.3). Council must refuse the application” and determined it accordingly, advising the following reasons (see Exhibit C2 fol 201):

Non compliance with the provisions of LEP 1991 (particularly in regard to Zone Objectives, Environmental Impact and Lot Yield),

Non compliance with the provisions of LEP 1991 as proposed to be amended by Draft LEP 1991 Amendment 25 (particularly in regard to Zone Objectives, Environmental Impact, Lot Yield, Minimum Area of each lot suitable for development and impact on Development Excluded Land),

Non compliance with DCP 27 - Subdivision (particularly in regard to Allotment Design Principles and Flora and Fauna impacts)

The proposal is considered to be an overdevelopment of the site,

The proposal, if approved, would be out of character with the surrounding residential bushland character of the area, and

The proposal is considered to have an unacceptable environmental impact on land zoned Environmental Protection.

74. The final version of the Amended Statement of Issues is essentially wider in ambit than the notice of refusal, and, in its final form (“Reconfigured Further amended statement of issues No.2” dated 20 September 2001 – Exhibit C38), raised the following matters:

(A) Issues affected by recent amendment of LEP 1991

1. The proposed development does not comply with LEP 1991 - clauses 3.1, 6.3, 6.8, 9.3, 10.5, 17.3, 34.1, 34.9, 10.5 (see issues 1(f), 1(g), 1(h), and 1(i) re flora and fauna matters.
2. Impact on the site of effective fire protection.
3. Configuration of the subdivision - substantial sections of access and perimeter roads adjacent to most lots are within environmental protection zones, as is the frontage of some lots themselves.
9. Limited useable land within some lots proposed for dwelling houses.
12. Unacceptable environmental impact on EP land.
13. Overdevelopment of site.
15. Impact of the endangered ecological community “ Blue Mountains Shale Cap Forest ”.

16. The circumstances of the case.

17. Whether the plant amperea papillata is a “rare species of flora” under LEP 1991.

18. Whether the papillata and any buffers to protect it are located on “development excluded land” under LEP 1991.

19. Whether “rock outcrops” are located on “development excluded land” under LEP 1991

.
(B) Issues not affected by recent amendment of LEP 1991

4. Proposal does not comply with DCP 27, in respect of:

(a) Flora and fauna objectives and performance standards.

(b) Aboriginal archaeology.

(c) Allotment design principles.

(d) Bushfire management.

(e) Access.

(f) Drainage.

(g) Services.

(h) Open space.

5. Adequacy of drainage system proposed.

6. Need for onsite detention, clean water separation and multiple dispersal discharge points.

7. Proposal does not comply with DCP 10.

11. Out of character with adjacent residential development.

75. In short, Council’s objections to the proposal, as expressed prior to the making of Amendment 25, still stand, despite the reduction in lot yield sought, in the light of the amendment.

The applicant’s position

76. The application was accompanied by a Statement of Environmental Effects (“SEE”) prepared by the applicant, together with traffic, etc. study material. Exhibit C2 contains a Town Planning Assessment from Mr Maher dated May 2000, an Amended Preliminary Flora and Fauna Assessment by Anderson Ecological Surveys, and other relevant reports including survey by Tessa Corkhill for Aboriginal Archaeological Sites, Geotechnical Report by Peter J Burgess, and a Habitat Assessment by Jonathan Webb.

77. Anderson’s amended report dated May 2000 (Exhibit A2 fol 21ff) examined only 3.5ha of land. No threatened species or endangered ecological community was located during that assessment. It concluded (Exhibit A2 fol 45) that “…there is unlikely to be a significant impact on any threatened species of fauna and therefore a Species Impact Statement will not be required”.

78. Anderson provided supplementary advice to a representative of the owner on 16 August 2000 (Exhibit A2 fol 62). Inter alia, Anderson said:

Any potential impacts on vegetation off the development area in the neighbouring gullies will be highly dependent on the effectiveness of the Stormwater Controls for this development. The areas in the gullies off the development area are sensitive due to a number of waterway factors including the Schedule 3 vegetation mapped by BMCC as Alluvial Forest/Swamp (Category A) to the east. So long as the development does not significantly increase the levels of sediment thus increasing nutrient loads to these areas there is unlikely to be any significant effect. Heather Road itself is currently dispersing largely uncontrolled stormwater across the development site and erosion is present on the site, which would currently be contributing to nutrient loads and sedimentation in the gullies.

79. Corkhill adhered to her 1993 report on 1 November 2000 (Exhibit A2 fol 70).

80. Mr Webster drew attention to the 1992 vegetation survey, which noted (Exhibit A2 fol 153):

The margins of the site grade into a taller forest where the spur drops into steeper, more sheltered gullies with moister soils. Eucalyptus sclerophylla and Eucalyptus piperita dominate, with the understorey including small Allocasuarina torulosa and Hakea dactyloides in areas with a northerly to northeasterly aspect. The species variations across the site, however, are insufficient to warrant further splitting of the community into smaller vegetation units. No species of conservation significance were recorded on the site proposed for subdivision.

The site drains into an upper non-perennial tributary of Frasers Creek. The tributary and Frasers Creek support an alluvial forest community, which is listed in the LEP 1991 as an environmentally sensitive vegetation unit. The forest is dominated by Eucalyptus deanei, with an alluvial swamp unit in wetter areas along the creek.

The subdivision, being separated from the alluvial forest by slopes which will remain under native vegetation cover, will not have any direct impacts upon it. Potential indirect impacts may include excessive siltation during construction, water pollution and weed invasion…

(fol 40) also contains a useful item on the Powerful Owl (Issue 4(a)):

This species is one of the large owl species and is associated with forests containing ecologically mature trees. They occupy large territories of at least 770 ha within prime possum habitat with their prey being primarily the Greater Glider, Common Ringtail Possum, Brushtail Possum, Sugar Glider and birds. Preferred nest trees are within open eucalypt forest 9-37 metres above the ground with large hollows often 0.5 metres deep. Of the emergent trees, often the oldest are used and nests are often located in gully lines. Preferred areas for foraging include wet and dry eucalypt forest however it also uses rainforest and woodlands fringing these habitats. There is potential foraging habitat for this species on the site however no suitable nest trees were located. If this species does occur it is unlikely that its life cycle will be disrupted such that it is likely to be placed at risk of extinction as the site only presents potential foraging habitat and this species can forage over a large area in the order of 1000 hectares.

The objectors

82. One of the principal objectors to the proposal was Greg Thompson, who resides at No.79 Heather Road, Winmalee, with his wife and two children, and has done so for 13 years. He holds a Bachelor of Science degree and a certificate in horticulture, and is a schoolteacher at Cranebrook. Thompson’s block is the last on the southern side of Heather Road just before one enters the subject site immediately east of him (see Exhibit C10 and Exhibit C28).

83. He and his wife Meg are the authors of several submissions to the Council (Exhibit C12 fols 1-19, 50, 85-134 and 166-169 and his statement of evidence Exhibit C13). Their lot has an area of 1730m2, and he notes (Exhibit C12 fol 5) that the existing residential blocks in Heather Road have areas of approximately 1700m2 with a significant amount of 40%-70% of bushland maintained, compared with the size of blocks and layout of the proposed subdivision which will (Exhibit C12 fol 7) force most of the houses to be double storey. “Large double storey houses on small blocks will greatly lessen the visual amenity of the local community by this subdivision dominating the natural attributes of the site”.

84. Thompson moved from the suburban sprawl of western Sydney to raise his family in an area of predominantly natural bushland character that he thought would be maintained and protected (Exhibit C13 par 2.6) “The new subdivision will enjoy the bush backdrop provided by our blocks while robbing myself and other residents of the very same bush outlook”.

85. He insisted he was not against the development of the site and was sure that Mr Barker could do a good design for fewer lots. He acknowledged the positive environmental benefit of the dedication of 32ha (sic) out of the 37ha. He acknowledged that the public ownership of the Aboriginal sites could be a positive and that the lot sizes of the new proposal were an improvement on the old.

86. Thompson says (at Exhibit C12 fol 10):

This style of subdivision - small cleared blocks, large houses, large amounts of hard surface (driveways, roofs, roads), little natural vegetation, ring road above a cliff line. This development design combined with the road, road verge, footpaths, mostly laying within the Environmental Protection (EP) zone will cause the greatest disturbance in terms of siltation, increased water flow, weed infestation, water pollution and waste pollution into the sensitive closed forest (rain forest) alluvial benches and alluvial swamps.

87. Thompson’s photographs appear at folio 90 (of Exhibit C12), depicting the streetscape of “modern houses located on small blocks in the mountains”. One picture shows the backyards of at least 8 houses. “There is not one significant tree in any of them because of the size of the blocks. Our house will look into and over a similar scene of 21 blocks while providing houses similar to this with a bush backdrop”.

88. At fol 105 Thompson says, in introducing some bushland photographs:

These pictures were taken from the back deck of 79 Heather Rd. This subdivision is approx 20-25 years old. The blocks shown are 1700 sq m or larger with the home located on the high side. The points to notice are maintenance of large stands native vegetation which has never been cleared, screening vegetation from neighbours and the ridge across the valley. The presentation is dominated by a quiet, peaceful bushland setting, with uninterrupted bush views, privacy, large trees that screen our houses from the other ridge as well as provide movement/shade and a leafy green outlook. This is consistent with the ‘Living Conservation’ zoning of Heather Rd.

89. One of the photographs shows “a view into and over the proposed subdivision from this position nearly all the native vegetation will be removed and at least 7 houses/yards similar to the ones above will be looked into or over depending if they are double storey”. The reference there is to a repeat of the photographs at 104.

of 16 Heather Road is critical of the Syncarpia Way subdivision (Exhibit C12 fols 27, and 159-60):

This area had a good tree cover before the subdivision. The design and construction of the subdivision were reasonably sensitive to the natural and built environment, but what has happened since has been not sensitive to either. All except one of the lots are over 800 square metres, yet the new owners have had most of the remaining trees cut down to build their houses. Incredibly one new owner has cut down every tree on their lot. People can now afford to build houses that are considerably larger than most of the 1960s-1980s houses in the surrounding area, built in the on (sic) similarly sized lots.

The new owners in the Syncarpia Way subdivision are also building 1.8 metre high Colorbond fences along their side and back boundaries. Most of the fences in the surrounding area are nominal wire fences with the boundaries being defined by shrubs and small trees. No doubt in time many of the new owners will similarly define their boundaries, but will find it difficult to grow plants in the shade on the southern side of the solid Colorbond fences. (fol 27 )
…
All except one of the lots are over 800 square metres, yet the new owners have had most of the remaining trees cut down to build their houses. Incredibly one new owner has cut down every tree on their lot . (fol 159)

91. Among the concerns raised in a lengthy submission of 18 April 2000 by the Blue Mountains Conservation Society Inc (fol 54ff), the Society says this:

The existing Heather Rd residences disperse their stormwater on site and must at least run through 50-100 metres of native vegetation buffer zone which is maintained on existing blocks before it reaches steeper slopes.

The Society has been advised that at present, road stormwater is dispersed through the proposed development area which may not be desirable but at least provides a dispersal zone. Once the subdivision is developed, this absorptive area will be no longer available, but the additional hard surfaces will be adding to the velocity and volumes of stormwater to be dispersed. (fol 58)

92. The Glazier Family of 48 Heather Road are the authors of several submissions. Mrs Fran Glazier also sent one to the court (added to Exhibit C12 as fol 156A).

93. Quite a number of the objectors showed a detailed knowledge of LEP 1991, summarised by one (at fol 161) as “to not only preserve the character and living standards of residents but to improve them”. That summary is repeated in several letters.

94. Some submissions claim that the Syncarpia Way development has resulted in rubbish and siltation in the river.

95. Many of the objectors’ letters refer to the poor design and narrow nature of Heather Road. They mention the dangerous dog-leg bend near the Gospel Chapel. Many deal in particular with the history of representations over a long period of time for improvements to Heather Road and its intersection with Hawkesbury Road. There is concern about the road’s capacity to withstand increased traffic flow. Their letters also express concern about a repeat of the 1994 bushfires.

The town planning evidence

said of the proposal, as it stood in February 2001 (Exhibit C1 p8 par 4.8ff):

4.8
I am of the opinion that some form of development could be possible on the Site, however, that development must have regard to the environmental constraints which have been identified and provide for a design which is responsive to those constraints. The Applicant has provided a design which has little regard to the constraints of the Site to a point where the cumulative impact of that development will be significant and adverse. Having regard to sub-clause 9.3 of LEP, 1991, I am of the opinion that the proposed development is not consistent with the objectives of LEP, 1991, the objectives of the RES-BC zone or the objectives of the EP zone.

4.12
… the proposed development will not meet the various requirements imposed by sub-clause 10.5 of LEP, 1991. In particular, the comments of Dr Smith concerning the impact of the proposed development on:

· Amperea xiphoclada variety papillata,

· Powerful Owl habitat, and

· Blue Mountains Shale Cap Forest and Sydney Coastal River-flat Forest

are of concern and as such I am of the opinion that the development would not accord with sub-clause 10.5(d)(ii)….


4.13
The provision of underground services, and the construction of the access road and right of carriageway, will have a significant impact on the integrity of many of the natural features of the Site. The potential impact on these natural features has resulted from poor design of the subdivision and indeed the approach adopted by the Applicant which seeks to maximise lot yield from the Site with little or no regard for the environmental consequences of that development. In this regard … there is insufficient information in the documentation provided by the Applicant to enable the Court to adequately determine the impact of the proposed soil and water management measures on the environment of both the Site and the downstream watercourse. … I am of the opinion that the proposed development will not accord with sub-clause 10.5 (a)(iii) of LEP, 1991.

4.14
With regard to clause 10 of LEP, 1991, whilst some form of development may be appropriate for the Site, the development proposal which is now before the Court displays many design faults which both individually and cumulatively lead to the conclusion that the impact of the development as proposed is of such significance that the application should be refused.

4.26
I am of the opinion that a subdivision design could be developed for the Site which would have better regard to the environmental constraints of the Site.

4.32
On the basis of the above criteria, I am of the opinion that many of the proposed lots contain land of slope 1 in 5 and above and as such do not contain sufficient area for the establishment of a dwelling house and development ancillary to a dwelling house. I am of the opinion that these are inappropriate lots.

4.36
In light of the above, I am of the opinion that the Applicant has not taken ‘into account the characteristics of the site and the locality’ when designing the proposed access with the consequence that the proposed access road will have a significant and adverse impact on both the vegetation on the Site and the integrity of the watercourse below the Site.

4.37
In addition to the above, as discussed in other sections of my Statement, the impact that the proposed road will have on the environment of the Site will be of such adverse significance that the conclusion must be drawn that the design of the proposed access to the lots is unacceptable. The location and design of the proposed access road is a function of the Applicant seeking to overdevelop the Site.

4.42
… I am of the opinion that significant environmental impact will result from the construction of the subdivision as proposed and as such the proposed development is contrary to the provisions of DCP 27 and should be refused.

4.47
Much of the content of DCP No.10 has been covered in the more recently adopted DCP 27, however, the DCP reinforces the controls contained in DCP 27…

4.48
… the design of the proposed development does not integrate well into the bushland. Rather, it will result in the removal of significant areas of bushland which have been identified as containing significant flora species. The development will not minimise the impact of roads, services and any subsequent buildings on the proposed lots and will be contrary to the aim of DCP No.10. Indeed, many of the proposed building envelopes are partly located within the EP zoned land.

4.50
The provision of services will require the disturbance of the Site and indeed in some cases the disturbance of significant sections of the natural environment. In light of the above, I am of the opinion that the provision of such services cannot be provided in a satisfactory manner to each lot in the proposed subdivision.

97. Kennan went on to discuss the implications of Amendment 25 in some detail. That amendment having now been made, Kennan has prepared further expert reports for the resumed hearing. In his report of 18 September 2001 (Exhibit C40), he comments (in the Executive Summary) that the:

… amended subdivision design … has little regard to the constraints of the Site to a point where the cumulative impact … will be significant and averse.
…
The environmental constraints of the Site, together with statutory requirements for non development of steep lands, the retention of vegetation (including rare species of flora) and natural features of the Site, all lead to the conclusion that a number of lots within the proposed subdivision do not have sufficient unconstrained land to provide for a dwelling house and associated structures and services.

I am of the opinion that the proposed development does not comply with the relevant provisions of LEP, 1991, the relevant objectives of LEP, 1991, or of the RES-BC or Environment Protection zones, has significant non-compliance with DCP 27 and DCP 10, and as such the application should be refused by the Court.

98. In the body of that report, Kennan comments:

4.7
The Statements of Evidence relating to flora and fauna, the provision of engineering services, and soil and water management have been filed with the Court with the general conclusion that the proposed development:

· will have a significant and adverse impact on the significant vegetation on the Site;

· does not provide for sufficient buffers to the significant vegetation units;

· does not provide for sufficient buffers to the watercourse below the Site;

· will not provide an adequate buffer between the development area and an important patch of Powerful Owl habitat;

· will result in bushfire management practices which will clear large areas of vegetation, some of which is significant vegetation;

· will result in adverse impact to the rare species of flora Amperea xiphoclada variety papillata, and

· will not encourage the re-establishment of bushland areas.

…
4.12
The contents of my original Statement of Evidence, and the Statements of Evidence prepared by other experts, support the conclusion that the proposed development will not meet the various requirements imposed by sub-clause 10.5 of LEP, 1991. In particular, the comments of Drs Smith concerning the impact of the proposed development on:

· Amperea xiphoclada variety papillata,

· Powerful Owl habitat, and

· Blue Mountains shale Cap Forest and Sydney Coastal River-flat Forest

are of concern.
4.13
The provision of underground services and the construction of the access road will have a significant impact on the integrity of many of the natural features of the Site. The potential impact on these natural features has resulted from poor design of the subdivision and indeed the approach adopted by the Applicant which seeks to maximise lot yield from the Site with little or no regard for the environmental consequences of that development.
4.14
With regard to sub-clause 10.5(c) of LEP, 1991, as amended by Amendment 25, the development relies upon a perimeter road for bush fire protection. That perimeter road will be constructed in large part on land which is zoned Environmental Protection and is thus development excluded land. The Statements of Evidence of both Mr Koen and Mr McVey have demonstrated that a significant level of engineering works will be required to effect the construction of the proposed perimeter road. I am of the opinion that such engineering works will have an adverse environmental impact on the development excluded land and as such do not accord with sub-clause 10.5(c).
…
4.23
The Amended Plan retains substantial sections of the access road and its associated cut and fill located within the EP zone and will require construction on land which contains significant numbers of Amperea xiphoclada variety papillata (development excluded land) with commensurate impacts on the environment which that zone and sub-clause 10.5 have been designed to protect.
4.24
The location of the proposed building envelopes in close proximity to the EP zone will mean that bushfire protection measures will be employed in close proximity to or within that EP zone. Many of the proposed building envelopes also contain significant numbers of Amperea xiphoclada variety papillata. I am of the opinion that such a development proposal has had little regard to the impact it will have on either the environment of the EP zoned land or the significant numbers of Amperea xiphoclada variety papillata and is completely at odds with sub-clause 10.5(c) of LEP, 1991.
…
4.34
… proposed lots 7, 8, and 9, and possibly others, do not have sufficient land available to accommodate the ancillary uses which would normally be associated with the erection of a dwelling house on an allotment of land. The rear of these lots is narrow and constrained by slope and rock outcrops. These and many other lots in the proposed development are also be (sic) constrained by the presence of Amperea xiphoclada variety papillata. I am of the opinion that the design of these lots is unacceptable.

99. In his “report in reply”, dated 1 October 2001 (Exhibit C42), Kennan comments, inter alia:

2.3
I am of the opinion that the amended subdivision layout, although having been reduced with regard to the number of lots proposed in the RES-BC and Environmental Protection Zones, still proposes to develop the same section of the Site as did the original design, and has not been amended to account for the substantial changes made to LEP, 1991 following the gazettal of Amendment 25.
2.4
The development as now before the Court is, in my opinion, an unsuccessful attempt to retrofit the originally proposed development to the current restrictions on development imposed by the gazettal of Amendment 25.
…
2.16
… I am of the opinion that the applicant has not attempted to identify a residential development form which is suitable for the Site and will accord with the above objective of the RES-BC zone. In particular, the development option of cluster housing development on the Site has not been explored.

100. Mr Kennan, in his oral evidence in both February and October, made a couple of additional points. Lots created by subdivision must not facilitate buildings which are environmentally negative. The LEP carefully uses the words “significant” and “adverse”, and capability and land suitability must be separately assessed. The road and bushfire measures in this proposal will remove natural bushland when the priorities should be to regenerate it (cl 6.3(c) and 6.8(d)). The LEP requires the consent authority to regard a rock outcrop on a site as a “significant landscape feature” within the terms of cl 10.l5 whether or not the outcrop is itself a “significant” one. In the subject proposal destruction of native bushland is encouraged rather than discouraged. The terms of cl 10.5 (c) and (db) must be applied, and not cl 10.5 (dc).

101. The applicant’s planner, Maher, who worked for the Council 1981-1992, points out that the application is not for an integrated development involving subdivision and the design and building of dwellings. The determining authority needs to be satisfied only that each lot created by the subdivision is capable of being built upon. Issues of building form, landscaping, colours and materials can be determined in respect of each lot on their respective merits. He accepted that the bushfire hazard rating of the subject site is “high”.

102. It is noted that no development is to occur below the escarpment, the area below remaining undisturbed and in its natural state.

103. In the expert report tendered at the February hearing, Maher says (at p16 of Exhibit A5):

… Heather Road reflects a typical established residential precincts. It is doubtful whether Heather Road could be classified as having a bushland character due to varying building designs and differing landscape treatments. This area is zoned residential 2(a1) under Blue Mountains Local Environmental Plan No 4 and has been developed as a residential precinct over a number of years.

The proposed development retains existing mature vegetation where possible and will not impact upon the Environmental Protection Zone below the escarpment. Existing natural features will be retained to the fullest extent possible.

104. Then, (at p18):

The proposed development has not been designed to replicate the character of Heather Road. The layout of the proposal has been influenced by the RBC zone objectives, merit based criteria of Blue Mountains Local Environmental Plan 1991 and the relevant Development Control Plans.

It is common practice in the Blue Mountains to provide fire protection zones particularly in Bushland Conservation and Residential Bushland Conservation zones. This is a matter of necessity having regard to the fire prone nature of the Blue Mountains. The real issue is to strike a balance between bushfire and environmental factors …

The proposed development will not adversely effect the existing character of Heather Road.

105. In his supplementary report following the amendment of the LEP (Exhibit A19), Maher acknowledged (p1) that “the subdivision layout is substantially the same as the original application … with the main changes relating to a reduced lot yield and amendments to lot sizes”. He did not distinguish between land capability and land suitability, and asserted (p4) that:

The land capability has been determined by:

· Calculating the notional development area.

· Determining those parts of the site which are to form the ‘development excluded area’.

· Identifying slopes that exceed 20%.

· Providing in excess of 750m2 of contiguous area in each lot, none of which contains any ‘development excluded land, and has been configured so as (sic) being capable of siting a dwelling house, and development incidental to a dwelling house. (sic)

106. On the question of “cluster housing development”, Maher says (p 8):

Whilst the application before the Court is not for an ‘Cluster Housing Development’ the proposal would satisfy the intent of the definition of ‘Cluster Housing’ in that:

· The development is concentrated on land that is most suited to development,

· The subdivision is in excess of 5 lots,

· The consolidation of the major section of development excluded land, (33.015ha of open space) is being undertaken,

· The proposal will create fire protection zones that would promote and enhance the environmental value of the major component of the development excluded land.

In making the reference to Cluster Housing it is recognised and understood that such proposals are subject to schemes for joint ownership, or neighbourhood or strata schemes.

107. In his report of 1 October 2001 (Exhibit C42) Kennan says, in response to Maher, inter alia:

2.7 Mr Maher, at page 4 of his Statement, provides details of the means by which the development capability of the site has been determined, and concludes that:
‘… the outcome being the site having a land capability of fifteen (15) lots’.
2.8 Mr Maher then translates that ‘land capability’ to mean that the site is also suitable for such a lot yield. Whilst it is agreed that the land capability of the site is 15 lots based on the determination of the maximum or notional lot yield contained in LEP, 1991, Mr Maher ignores the fundamental planning principal that capability does not necessarily translate to suitability.
2.9 It is a fundamental planning practice that, in the determination of the capability and suitability of a particular site for development, a number of iterations or a sieving process is undertaken. In the subject case, the first stage in the sieve process is the determination of the maximum lot yield, or the notional development area of Site. Mr Maher, correctly determines that 15 lots is the maximum lot yield or notional development area in the RES-BC section of the Site.
2.10 Having determined the notional development area of the site (15 lots), the next stage in the development process is the determination of the suitability of that section of the Site for the proposed development. It is at this stage of the development process that the site specific constraints to development are identified and the sieving process eliminates those sections of the Site which are so constrained that they are not suitable for the development form proposed, in this case subdivision and residential development.
2.11 Mr Maher has ignored the fundamental components of LEP, 1991, as amended by Amendment 25, which have been inserted into the LEP to assist the Council, or in this case the Court, in the determination of the suitability of the Site to accommodate the possible maximum lot yield of 15 lots. As noted at paragraph 3.2 of my Supplementary Statement of Evidence, one of the aims of Amendment 25 to LEP, 1991 is to:
‘(c ) replace the definition of “Useable Land Area” with two definitions, one relating to the area which may notionally be suitable for development, and the other relating to land that is suitable for development.’

Town planning considerations

108. The applicant, both in its response to the amendment of the LEP (that response being to keep the same basic design for its subdivision, but reconfigure the subdivision of the RBC land to produce four fewer proposed lots), and in the arguments presented on its behalf by Maher’s evidence, and its counsel’s submissions, seriously downplays and oversimplifies the effect of the amendment of the LEP by Amendment 25.

109. I have earlier quoted the stated objectives of that amendment. I agree with Mr Robson that it is positively aimed at the better environmental protection of land such as the subject site, and so prescribes stricter tests for new subdivisions than those it prescribes for the erection of dwelling houses on past subdivisions (T52 L1-10). As Cowdroy J observed in Bendent Pty Ltd v BMCC [2001] NSWLEC 33, Amendment 25’s objectives are “more stringent” than those in the LEP in respect of the RBC land.

110. Council resolved to seek such an amendment to its LEP in March 1997 and pursued it despite a plethora of legal argument and a successful class 4 challenge to part of the process it followed. See John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs & Planning & Ors [1999] NSWLEC 213.

111. Mr Webster sees no difference between a requirement to “comply” with objectives and one to be “consistent” with them, but I respectfully disagree. The various dictionary definitions upon which he relied do not support his submission. Consistency has been interpreted in this court as “not antithetical to”, but “comply” requires action “in accordance with” a stated object or command. As Cowdroy J observed, in Bendent (at par 18), the LEP “required consistency with the objectives whereas the revised version requires compliance with the more stringent objectives”. Bendent was decided while judgment was earlier reserved in this matter. His Honour gave considerable weight to the then “draft” Amendment 25 and dismissed a similar appeal to this. I was coming to the same view when the Amendment was in fact made and this hearing was reopened.

112. As noted in Lenton (at par 44) even Parliamentary Counsel observed, on 10 December 1998, that Amendment 25 as it was then framed, before its draft provisions were strengthened, contained many “highly unusual” provisions, “would impose very considerable constrictions on the carrying out of development”, and gave the consent authority “extremely wide discretions”.

113. While I am now firmly of the view that some aspects of this proposal are somewhat “inconsistent” with the plan as it now stands, I have also concluded that some aspects of it clearly do not “comply” with some of its objectives, and so require that the court refuse consent.

114. I am fortified in this conclusion by the conservative approach taken by this court in the application of the tests in the LEP even before Amendment 25 was drafted, let alone made. See, e.g., The Chief Judge’s application of clauses 10.5 and 11.3 in J S Heap Constructions Pty Ltd v BMCC [1997] NSWLEC 170 (but c.f. assessor Hussey’s decision in Hawkes v BMCC (No.10648 of 1997, 24 April 1998)). As Mr Robson submitted, Amendment 25 fortifies the approach taken in Heap, and reflects the local community’s view of subdivision of such sites as that in question here.

115. Perimeter roads may have come to be regarded as acceptable for sites like this under the former planning regime, but the perimeter road and the proposed sedimentation basins in this case are largely to be constructed on EP land, and as such could not possibly “comply” with the LEP’s objectives as they are now expressed. Maher conceded in his evidence that the applicant did not even consider developing this site in any other way despite the very substantial change in the planning regime brought about by the making of Amendment 25.

116. The court will, therefore, dismiss the appeal and refuse the application on town planning grounds.

Merits issues

117. As the Council and the objectors concede that some development can take place on the subject land I should, in fairness to the time, expense, and effort of the parties, deal shortly with the other issues raised in opposition to this proposal.

118. Visual impact, open space and bushfire management aspects of an appropriate development on the subject land could be adequately addressed by conditions, as could aboriginal and water management (on site), but two major areas remain in contention among the issues.

(1) Flora and Fauna issues

119. The Powerful Owl is an urban bird that likes the gullies and has only once been seen by the Smiths in a tree on the site. No roosting site was discovered, and there is no evidence of “wash” to show regular presence on the subject land. It would likely use the general locality more if development on the subject land avoids use of the EP land.

120. The Blue Mountains Shale Cap Forest (Exhibit C33) and Sydney Coastal River Flat Forest (Exhibit C34) community is more than 60m away from the proposed development and certainly not adjacent to the development or in the direct line of any impact.

121. In terms of the presence on the site of the papillata variety of Amperea xiphoclada, the Briggs & Leigh “publication” Rare or Threatened Australian Plants” (“ROTAP” - Exhibit A13) now has specific application to the development of this site (see par 49 above).

122. ROTAP is an indicator of conservation imperatives and affords papillata (at p 57) the “risk code” “3KC-“, which is interpreted as follows (see pp 6-11 of Exhibit A13):

Distribution category “ 3 ” includes “ Rare or Threatened plants with relatively wide geographic ranges. … [A]t each locality there may be fewer than 100 plants spread over an area of less than a few hectares…” .

Conservation status “ K ” covers taxa “ seldom collected and for which the conservation status cannot be reliably determined until more field survey information is available ”, and those “ known to be rare, but for which there is uncertainty about the level of threat to which they are subject ”.

“ C ” indicates taxon is reserved in an area somehow “ dedicated for the protection of flora ”, in this case Ku-ring-gai Chase National Park, but the “ minus ” symbol indicates that the population sizes within the Park is “ unknown ”.

123. While there is still a dispute between the parties’ experts about various specimens observed and/or sampled, there is substantial papillata on the subject land, both in the EP zone and in the RBC area.

124. The Council’s experts, Drs J and P Smith, opine (in the last paragraphs of both Exhibit C41 and Exhibit C46):

Our recommendation is that buffers at least 60 m wide are needed around the core habitat of variety papillata at the site. However, we recognise that this may not be feasible. A possible alternative is for narrower buffers (and the absolute minimum width should be 10 m) if these are combined with other measures to protect the core habitat from long-term degradation, such as fencing and an on-going bushland monitoring and management program. We would stress that we consider this a poor alternative to wider buffers because it requires an on-going commitment to active bushland management, and such a commitment cannot be guaranteed over the long term. It is far better to provide buffers of sufficient width that the core area does not require active management. (Exhibit C41).

The presence of good numbers of papillata plants away from the development site means that the proposed development would not result in the elimination of variety papillata from the general vicinity of Heather Road. However, the high risk of long-term elimination of the papillata population from the development site itself still represents a significant adverse environmental impact on development excluded land, given the large number of plants that occur at the site. There has been no attempt to address this issue in the planning of the development. A disproportionate effort has been devoted to off-site searches for variety papillata, while the survey and mapping of variety papillata on the development site itself has been inadequate (only 20 of the 209 plants present were identified and mapped), and has had no influence on subdivision design. (Exhibit C46).

125. The amount of papillata threatened by the proposal as it currently stands is unacceptable, and not adequately addressed by the suggested conditions. However, if no development works were to be carried out on the EP lands, and the papillata thereon were to be protected, I would not have required the suggested buffers of 5 or 10 metres to be implemented on the RBC lands, and would have imposed Mr Fanning’s suggested condition requiring conservation and translocation where specimen were threatened.

(2) Soil and Water Management

126. The court accepts Koen’s evidence (Exhibits C23 to C26) that substantial disturbance would occur to the EP lands if the current proposal proceeded.

127. Morse and McVey, jointly and severally, opined that proposed erosion control measures were “grossly inadequate” (see their exhibits listed in par 10 above).

128. One of Council’s major complaints was that the applicant’s “environmental investigation” was and remained inadequate, despite the opportunity presented by the re-opening of its case. Mr Robson submitted (T 4.10.01 p47 LL4-9):

If you can’t understand the extent of the disturbance in relation to the location of roads and the amount of fill and where the basins are going to be, how could … a consent authority be it court or council, determine what the effect will be.

and urged the court to apply the “precautionary principle”.

129. Webb calculated the size of sedimentation basin required, but McVey suggested a 50% greater size was required, and some uncertainty remained as to their location, size and adequacy. At the second hearing there was a substantial dispute about the basis for size calculation, relying as it does on conclusion as to the most significant soil type found “over a significant portion of the basin catchment” (T 4.10.01 p36 L14), indicating the expected dispersibility of the soil on site.

130. At the second hearing the court heard evidence from Morse and Hewitt on the question of soil type, after the experts had conferred (Exhibit A22) and continued to disagree.

131. Morse thought the predominant soil type was probably “D” or “F”, that more testing was needed, which should be carried out in accordance with s 2.2.1 of the “Blue Book” (Exhibit C30).

132. On the other hand, Hewitt carried out his own tests, reviewed Burgess’s earlier material, and concluded that the predominant soil type was “C”, such that Webb’s specifications for the basins were satisfactory.

133. As Mr Webster pointed out during submissions, Council officers thought that soil issues could sensibly be left to conditions (see Exhibit A2 fol 91 s 10.5(a)(i)), but the court would, on balance, accept that Hewitt’s opinion is probably correct as a starting point to concluding the issue.

Conclusions

134. For all the above reasons the court has determined that the appeal should be dismissed, and the subject development application determined by refusal of consent.

135. All the exhibits may be returned.