Duignan v Hornsby Shire Council

[2004] NSWLEC 356

Land and Environment Court

of New South Wales

CITATION:	Duignan v Hornsby Shire Council [2004] NSWLEC 356
PARTIES:	APPLICANT James Duignan RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	11143 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of existing dwelling subdivision into four lots erection of three dwellings bushfire protection riparian zone
LEGISLATION CITED:	Rivers and Foreshores Improvement Act 1948 Hornsby Local Environment Plan 1994 Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	02/06/2004
DATE OF JUDGMENT:	06/03/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr G McKee, solicitor SOLICITORS McKees RESPONDENT Mr A Galasso, barrister SOLICITORS Hornsby Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

3 June 2004

11143 0f 2003 James Duignan v Hornsby Shire Council

JUDGMENT

1 This is an appeal against the refusal of Development Application No. 1647/02 for the demolition of an existing dwelling, the subdivision of one lot into four lots and the erection of dwelling houses on three of the four new lots at 3 Cornwall Street, North Epping. The proposed development is integrated development as approval is required under the Rivers and Foreshores Improvement Act 1948 because of a watercourse that traverses the subject site.

2 The subject site is lot 21 in DP30286. It is a fan shape lot at the end of an existing cul-de-sac. It has an area of 3921 sq m. The subject site has a steep slope from the Cornwall Street frontage to the existing dwelling. Behind this dwelling the land drops sharply to a watercourse that traverses the site generally from east to west. The land then rises steeply on the southern side of the watercourse to sandstone ledges and outcrops. Dense vegetation is located on the banks of the watercourse with less dense but consistent vegetation over the remainder of the subject site. The predominant form of development in the area is low density detached residential dwellings of single and two storey construction.

3 The subject site is zoned Residential A (Low Density) under Hornsby Local Environment Plan 1994 (LEP 1994). The proposed development is permissible with consent within this zone.

4 The council filed a Statement of Issues containing 16 issues although not all issues were pressed at the hearing. The remaining issues can be conveniently grouped into the following main areas:

1. Whether the proposed development provides adequate bushfire mitigation measures,
2. Whether an adequate area has been provided for the riparian zone,
3. Whether the proposed development satisfactorily addresses the natural topography of the site, and
4. Whether the proposed development has an adverse impact on adjoining properties.

5 Issues raised by local residents that were not raised by the council included the impact on flora and fauna and traffic and parking.

6 While the issues of vegetation retention and bushfire protection are separate issues they are interrelated. Dr Peter Smith, an ecologist and Mr Roy Free, a bushfire consultant, provided evidence for the council and Dr David Robertson, an ecologist and Mr David McMonnies, a bushfire consultant, provided evidence for the council.

7 The major difference between the parties was the appropriate asset protection zone (APZ) for bushfire protection. The interrelated matter was the effect of the APZ on the need to maintain and supplement the vegetation in the riparian zone. Both parties relied on the document Planning for Bushfire Protection to support their respective and diverse opinions on the appropriate APZ. Clause A 2.3 in Appendix 2 of Planning for Bushfire Protection sets out the procedure for assessing whether a development is bushfire prone and if so, what setbacks (or APZ) are appropriate. The two major criteria are vegetation class and slope.

8 In his assessment Mr Free concludes that a 20 m APZ is required for the north and west and a 60 m APZ for the east. The effect of these restrictions is to make the area of the proposed dwellings undevelopable.

9 Mr McMonnies takes a different view. He sees no need for an APZ to the north or west and nominates a 20 m APZ to the east.

10 Dealing first with the easterly APZ. This is the most important as it represents the most likely path of travel for any bushfires. It was also the area that much of the evidence addressed. Mr Free adopts a Group 1 vegetation class of “forest” and a slope ranging from 10 degrees to 15 degrees. Mr McMonnies adopts a Group 2 vegetation class of “woodlands” and a slope ranging from 5 degrees to 10 degrees. Using Table A(2)(2) in Planning for Bushfire Protection, Mr Free’s classification generates an APZ of 60 m and Mr McMonnies’ an APZ of 40 m.

11 The proposed development provides a 20 m APZ, although I note that the deck and part of the proposed dwelling proposed on lot 214 even encroach within the 20 m APZ. Mr Free and Mr McMonnies assume different vegetation classes for the area to the east but both sought additional advice on the classification from Dr Smith and Dr Robertson. Ultimately each supported their respective bushfire consultants in their classification of the vegetation class.

12 Dr Smith and Dr Robertson explained to the Court the approach they adopted in assessing the vegetation class. Both relied on the requirements in Planning for Bushfire Protection that describes “woodland” as having a foliage cover of 10% to 30% whereas “forest” has a foliage cover of 30% to 70%. Both also used the Australian Soil and Land Survey Field Handbook published by the CSIRO although different techniques and transects were used to reach their respective conclusions.

13 While coming to the different conclusions it must be remembered that the type of assessment carried out by Dr Robertson and Dr Smith is far from precise. I accept that both Dr Smith and Dr Robertson fairly and properly conducted their surveys but different transects can quite easily produce different results.

14 In relation to the appropriate vegetation classification I accept that it should be classified as “forest”. I rely on the provisions in cl A(2)(3.2) of Planning for Bushfire Protection where it states:

“Where a mix of vegetation types exists the type providing the greater hazard is said to predominate”.

15 If the distinction is so fine between classifying the area as “forest” or “woodland”, the approach set out in Planning for Bushfire Protection should be adopted.

16 In terms of slope both parties carried out different assessments. The applicant provides three different assessments over a maximum distance of 69 m from the edge of the proposed dwelling on lot 214. The slope varies from 7.5 degrees to 13.3 degrees. Mr Free also provides three different assessments but over 100 m. The slopes fall predominantly within the 10 degrees to 15 degrees range.

17 Relevantly, Planning for Bushfire Protection categorises slope range as either 5 to 10 degrees or 10 to 15 degrees. Mr McMonnies adopts the former and Mr Free the latter. Clause 2.3(3) states that the slope should be measured “over a distance of at least 100 m” so I accept that the appropriate classification is within the 10 to 15 degree range. Mr Free’s assessment is based on the 100 m requirement and also relates more closely to the likely path of travel for any bushfires.

18 Having agreed with Mr Free on his assessment of slope and vegetation classification, Planning for Bushfire Protection requires a 60 m APZ. Mr McMonnies argued that there were mitigating circumstances that would allow this APZ to be reduced. Specifically he relies on (1) the limited nature of the hazard being a small slither of bushland, (2) the philosophy in Planning for Bushfire Protection as it is based on a maximum fire danger index of eighty, (3) the provision of bushfire managed land nearby, (4) the undulating slopes will allow fire progression to spread, and (5) the level of construction for the dwelling on lot 214.

19 While I accept the general proposition of Mr McMonnies that a merit assessment of this specific application is necessary, I am not convinced that such an assessment would result in an APZ of 20 m. Even using the lesser criteria for slope and vegetation classification a 40 m APZ is still required. I do not accept that the mitigating circumstances suggested by Mr McMonnies warrant the APZ to be further reduced to 20 m. While the Rural Fire Service in correspondence to the council have accepted that a 20 m APZ is appropriate, this conclusion was based on an early bushfire assessment that has since been amended to provide less protection for the proposed dwellings.

20 For these reasons the appeal must be dismissed, however I will deal briefly with the other issues raised in the proceedings.

21 In relation to the appropriate APZ to the north and west, I accept Mr McMonnies’ evidence that the potential fire risk from rainforest type vegetation is less than from the east because of the type of vegetation and its damp environment. There seems a valid basis for a variation to the specific requirements in Planning for Bushfire Protection for these areas. The northern and western APZ suggested by Mr Free is based strictly on the requirements in Planning for Bushfire Protection although the potential bushfire threat from these directions is clearly considerably less than from the east.

22 The extent of the riparian zone was the subject of considerable evidence before the Court. The responsible officer for enforcing the requirements in the Rivers and Foreshores Improvement Act 1948 from the Department of Infrastructure, Planning and Natural Resources, Mr Michael Perdicaris provided evidence to the Court. While providing general terms of approval to the proposed development, he later provided a plan showing the specific area that was required for the riparian zone.

23 The council raised the issue of a 2004 publication titled Managing Urban Stormwater, Soils and Construction that requires a larger riparian zone than originally nominated by Mr Perdicaris. When asked about this document he was unaware of its existence although he maintained that the previously nominated area was still acceptable.

24 On this issue, I accept that the area nominated by Mr Perdicaris is an acceptable riparian zone. It is based on a specific site assessment rather than a nominated distance from the creek bank. In my view this is a more preferable way to assess the appropriateness of a riparian zone. Additionally I see no conflict with a nominated area when compared to the objectives in the Managing Urban Stormwater, Soils and Construction.

25 The conflict between the need to retain and supplement vegetation in the riparian zone and the need to provide an appropriate APZ in the same area is a fundamental problem with the application. I note that the general terms of approval require that the APZ is not to impact on the riparian zone. The Court was unclear as to the suitability of the Vegetation Management Plan prepared on behalf of the applicant. Mr Perdicaris stated that he had not fully assessed the document. In any event it is based on the 20 m easterly APZ that has been found to be unacceptable.

26 In relation to the impacts on adjoining properties, particularly the property of Mrs Cowan, I accept Mr Kennan’s evidence that greater attention should be paid to the relationship between the proposed dwellings and this property. The setback of the proposed dwelling to Mrs Cowan’s property is acceptable as this area consists almost solely of driveways and turning areas with no opportunity to provide some landscaping to screen the proposed buildings. Mr Kennan’s evidence that the proposed development exceeds “the environmental capacity of the subject site” also has some merit when considering the constraints imposed on the site by the need to protect dwellings from bushfire, maintain the riparian zone and protect endangered species.

27 Mr Kennan honestly admitted that some development could be constructed but not to the level imposed by this application. I concur with this conclusion. I also accept Mr Kennan’s evidence that there is insufficient detail on proposed lot 211. This lot contains the existing dwelling that is to be demolished. The lot is constrained by easements, topography and natural features and prior to the creation of the lot I accept it is not unreasonable to indicate how a dwelling can be constructed on this new lot.

28 Of the matters raised by the residents, the impact on flora and fauna has been extensively assessed by Dr Smith and Dr Robertson. It was not found to warrant the refusal of the application.

29 Traffic and parking was raised as an issue by a number of residents, however I accept that the additional vehicles would not be that significant to warrant the refusal of the application for this reason.

30 For these reasons the orders of the Court are:

1. The appeal is dismissed.


2. DA1647/02 to demolish the existing dwelling, subdivide the land into 4 lots and erect 3 new dwellings on the new lots at 3 Cornwall Street, North Epping is refused.

3. The exhibits are returned with the exception of exhibits 1 and 2.

__________________________
G T Brown
Commissioner of the Court
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