Dunlop v Coffs Harbour City Council

[2007] NSWLEC 646

Land and Environment Court

of New South Wales

CITATION:	Dunlop v Coffs Harbour City Council [2007] NSWLEC 646
PARTIES:	APPLICANT James Dunlop RESPONDENT Coffs Harbour City Council
FILE NUMBER(S):	10142 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application - Subdivision :- Endangered ecological communitiy Threatened species
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Native Vegetation Act 2003 North Coast Regional Environmental Plan 1988 Coffs Harbour Local Environmental Plan 2000
CASES CITED:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; Weal v Bathurst City Council (2000) 111 LGERA 181; Mison v Randwick City Council (1991) 23 NSWLR 734; Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46; Newbury District Council v Secretary of State of the Environment [1981] AC 578; Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472; Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	29, 30 and 31 August 2007
EX TEMPORE JUDGMENT DATE:	31 August 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr S Campbell, solicitor Fishburn Watson O'Brien RESPONDENT Mr J Mulder, solicitor MBT Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

31 August 2007

10142 of 2005 James Dunlop v Coffs Harbour City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act1979 (the Act) against the refusal of Development Application 1063/04 which was lodged with Coffs Harbour City Council (the Council) on 22 December 2003 and determined by refusal on 26 February 2004. The application proposes the subdivision into three allotments of the existing property at 590 Coramba Road, Karangi (the site) which is Lot 22 DP 853824.

2 Supplementary information submitted with the application states that:

Lots 22 and 24 are for the purposes of conservation. It is anticipated that this will be achieved by way of 88B instruments registered against the titles of the new allotments.

3 As I now understand it, all three allotments are to be so regarded and subject to the conditions which the applicant proposes and the management and other control measures advanced in support of the application.

The site

4 The existing single allotment is irregular in shape and has an area of 25.23 ha. It runs roughly northeast to southwest. It is partially zoned Rural 1A Agriculture and partially zoned Environmental Protection 7A Habitat and Catchment Protectionby the Coffs Harbour Local Environmental Plan 2000 (the LEP). These zones are roughly equally represented although not uniformly so across the existing allotment. The proposed subdivision would create two allotments of 4 ha with a residual allotment of 17.23 ha. Rather than referring to Lot numbers in the course of this judgment, I propose to refer to the eastern, central and western allotments with the western allotment being the 17.23 ha allotment.

Flora and Fauna

5 The site is heavily vegetated with both gully and re-entrant rainforest and somewhat more open eucalypt forest - predominantly on the ridge tops. In more technical terms the rainforest is lowland rainforest (which is an endangered ecological community) and the more open eucalypt forest comprises two forms of wet sclerophyll forests.

6 A variety of threatened species are known to be present on the site. Those that are recorded as being on the site are as follows:

• Rusty Plum (Amorphospermum whitei),
• Marsdenia longiloba,
• The Koala,
• The Grey Headed Flying Fox,
• The Stevens Banded Snake,
• Wampoo fruit pigeon,
• The Glossy Black Cockatoo,
• The Rose-crowned fruit pigeon; and
• The Little Bent-winged bat.

7 Mr Mullins, an ecological expert giving evidence for the Council, postulated that the site might also represent potential habitat for a variety of other species.

8 I propose to proceed on the basis of what has actually been identified on the site. The applicant has submitted a species impact statement prepared by Greenloaning Biostudies. I have been greatly assisted in my understanding of the ecological evidence by evidence given by Mr Mullins and by Ms Martin, the ecologist on behalf of the applicant.

Site inspections

9 Two inspections were undertaken during the course of the hearing.

10 The first, at the commencement of the first day, was limited by the fact that the proposed building envelopes had not been marked by the surveyor instructed to do so. In order to permit Mr Dunlop to have a full opportunity to present his best case, the surveyor was instructed to re-mark three house locations with a building envelope of agreed dimensions of 20 m by 25 m. This was necessary as the initial proposed building zones on the plans accompanying the application (and the necessary attendant bushfire asset protection zones as required by Planning for Bushfire Protection) were unreasonably imprecise and, in some respects, unreasonably disadvantageous to Mr Dunlop. The version of the proposal showing the allotment boundaries, originally proposed asset protection zones and LEP zone boundaries is attached to this judgment.

11 Building envelopes were marked at the three proposed house sites. The Rural Fire Services officers who had attended as part of the hearing were asked to assess whether the asset protection zone dimensions that had previously been proposed by the Rural Fire Service required any revision in light of the actual building envelopes and adjacent topography. [I interpolate here that the site has a variety of slopes with significant elements of slopes over 18 degrees in the vicinity of each of the three proposed house sites and some slopes on the site of up to 50 degrees.]

12 While this process was being undertaken, I heard lay evidence from a variety of witnesses (being both supporters and opponents of the proposal).

13 The detailed outcomes of the Rural Fire Service asset protection zone defining and the ecological evidence will be considered further later in this decision.

14 However, it is appropriate to note that a second site inspection became necessary, toward the end of the second morning, in order to hear further on-site evidence about asset protection zones and ecological aspects. This further inspection was necessary as the Rural Fire Service officers and the ecological experts were unable to complete their assessments of the three asset protection zones during the first day. Indeed, although I do not consider it significantly relevant, they were unable to complete that task by the time of the second morning’s inspection.

15 I also had the opportunity to see some of the site management that Mr Dunlop has undertaken and heard evidence from him of the weed management and revegetation activities he has undertaken on the site during his 20 year ownership of it. The fact that he has done so is commendable but is not a matter of relevance in these proceedings.

16 I am obliged to assess the application against the relevant planning controls which are applicable and to consider the State Environmental Planning Policy No 1 (SEPP 1) objection to compliance with critical controls contained in the LEP relating to the minimum allotment size for subdivision purposes.

17 Although the Council has raised, in its Sixth Amended Statement of Issues, a range of specific matters, I put to Mr Campbell, solicitor for Mr Dunlop, and to Mr Mulder, solicitor for the Council, that, in my view, there were in fact three determinative groups of issues with which I was required to deal. They are:

• The acceptability or otherwise of the bushfire risk matters associated with the proposal;
• Should the SEPP 1 Objection to the lot sizes be upheld? and
• Is the proposal acceptable (if it passed the first two hurdles) against a general assessment against the grounds s 79C of the Act – including, relevantly, the ecological impact of the three house sites and the additional two households that would be necessary?

18 The difference between the number of households and the number of house sites arises of a consequence of my obligation to assume, prima facie, that the present unsubdivided allotment is capable of sustaining a dwelling and hence a household at some location whether or not at one of the three sites nominated in the application (see BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399).

19 As I indicated to Mr Mulder and Mr Campbell, I consider the appropriate sequence for determining these matters is bushfire risk; SEPP 1 objection; and then s 79C merit review as that is, in my view, the necessary sequential order in which the applicant must succeed if he is to succeed at all.

Bushfire risk

20 Mr Mulder submitted to me that I had inadequate information to give consent subject to conditions relating to bushfire issues. He pressed that to do so would offend against the decisions of the Court of Appeal in Weal v Bathurst City Council (2000) 111 LGERA 181 and Mison v Randwick City Council (1991) 23 NSWLR 734.

21 Setting aside, for the time being, broader issues of the adequacy of the species impact statement, I am prepared to extrapolate from the species impact statement its relevant applicability to adjacent lands in light of the evidence given orally by Mr Mullins and Ms Martin. I am, therefore, satisfied that I do have adequate information on bushfire matters which are relevant so that, if I were to do so, I might give a proper consent subject to conditions on bushfire issues.

22 On the question of bushfire risk, two merit matters require consideration. The first is the adequacy or otherwise of access to the three house sites and the second is the creation and maintenance of asset protection zones.

23 I note that I have had significant assistance in dealing with bushfire issues from two local officers and one Headquarters officer of the Rural Fire Service.

Access

24 The primary access is along an unnamed crown road which runs generally parallel to the eastern edge of the site (although somewhat removed from it). It also provides access to two other existing dwellings. A separate access to the western lot and its proposed house site is available direct from Coramba Road.

25 The western lot will have, as its primary access, the direct path to Coramba Road which, according to the Rural Fire Service officers from their inspection of it, is acceptable with minor upgrading being required. It will also have a secondary access via the crown road.

26 The central and eastern lots will have their primary access via the crown road.

27 The central lot’s house site will have secondary access via the western lot and its access to Coramba Road.

28 The eastern lot will have a partial secondary access via the central and western lots, this secondary access being for approximately two-thirds of the distance from that house site to Coramba Road.

29 The Rural Fire Service evidence is that, with primary access for the western lot being direct to Coramba Road, as only four dwellings would have their primary access on the crown road, it fell within the Rural Fire Service definition of an internal access road and was constructed to an acceptable standard for this purpose.

30 As earlier noted, with minor upgrading capable of being dealt with by an appropriate condition of consent, the primary access for the western allotment is also satisfactory for bushfire purposes. As a result of the uncontradicted Rural Fire Service evidence, the access to all proposed lots is, I am satisfied, acceptable for bushfire purposes.

Bushfire asset protection zones

31 The Rural Fire Service and the ecological experts defined the trees which would need to be removed for the three asset protection zones (although they were unable to complete the task to finality).

32 There is now no disagreement, although, if consent were given, full detail of the tree identification would need to be completed because of time constraints preventing it during the hearing.

33 The three asset protection zones were each revised by being extended in one direction, in each case, as a result of the on-ground inspection by the Rural Fire Service officers.

34 All three asset protection zones include areas with slopes greater than 18 degrees. As a consequence, all three asset protection zones will require terracing and earthworks as part of their establishment.

35 In addition, all three asset protection zones extend onto property not owned by Mr Dunlop. None of the asset protection zones, however, extend onto the crown road reserve.

36 The question of asset protection zones on adjoining land is dealt with at p 13 of Planning for Bushfire Protection 2006 which notes as follows:

“Neither the RFS nor a Council has the power to impose an APZ on an adjoining landowner. It is therefore the developer’s responsibility to negotiate with adjoining landowners as part of the development application process. Details of the proposed easement and the adjoining owner’s consent should be submitted with the development application.”

37 It is certainly the position that I would not be able to grant a conclusive development consent absent landowners’ consent from the relevant landowners.

38 The asset protection zone for the western-most allotment extends onto a property where the owners have indicated a preparedness to permit the necessary works to be undertaken on their property. These owners, the Steels, have given an unconditional letter of consent to this effect – agreeing to an easement for these purposes. While detail would need to be provided, I am satisfied that this meets the requirements of the regulations and could be dealt with by way of condition.

39 The asset protection zone for the middle allotment would extend onto the Harwood’s property to the south-east. An exchange of correspondence between Mr Campbell and Mrs Harwood shows a preparedness to consider an easement but requires details to be provided.

40 The asset protection zone for the eastern-most allotment extends onto two other properties. I have no evidence that either property owner would consent to the necessary APZ on their property and grant an easement for maintenance and establishment purposes.

41 However, if otherwise approved, this should not result in a refusal at this stage – I would permit Mr Dunlop three months to complete the detailed marking out and obtaining owner’s consent for the granting of the necessary easements. In such an event, the easements would require registration to the satisfaction of the Council prior to the release of the linen plan. There are, therefore, in my view, no bushfire bases upon which the application should be refused.

SEPP 1 objection

42 I turn to the SEPP 1 objection.

43 The LEP was made under the umbrella of the North Coast Regional Environmental Plan 1988 (the REP). Two clauses of the REP are relevant in these proceedings. They are clause 21(1)(a) which reads as follows (under the heading Plan preparation – dwelling on rural lands):

(1) A draft local environmental plan which permits the erection of dwellings on rural land should
(a) in the case where only one dwelling may be erected on an allotment
(i) identify a minimum allotment size which is suitable for the erection of a dwelling and
(ii) provide that a dwelling may only be erected in an agricultural protection zone if in the opinion of a Council the erection of the dwelling will not adversely affect the use of the land for commercial farming purposes.”

44 The second clause which is relevant is under the broader Part 3 heading of Conservation and the Environment. It is cl 29 entitled Plan preparation—natural areas and water catchments. Clause 29(c) says:

“A draft local environmental plan should
(c) include significant areas of natural vegetation including rain forest and literal rain forest, riparian vegetation, wetlands, wildlife habitats, scenic areas and potential wildlife corridors in environmental protection zones.”

45 The LEP contains three relevant provisions whose objectives require to be considered in this matter.

46 The first is cl 18 Subdivision - the objective of which is to allow the subdivision of land in accordance with the land’s environmental capacity and zone objectives.

47 Three detailed provisions of the clause are relevant in these proceedings.

48 The first is clause 18(2) which reads as follows:

“Consent shall not be granted to the subdivision of land within a zone specified in the first column of the table to this clause which will enable creation of an allotment smaller than the area specified for that zone in the second column in the table.”

49 The next provisions that are relevant are the provisions of the table which appears after 18(6). The relevant areas are, for the Rural 1A Agriculture zone, an area of 40 ha and, for the Environmental Protection 7A Habitat and Catchment Protection zone, an identical area of 40 ha.

50 Also relevant are the provisions of clause 18(4)(a) which deals with the question of composite allotments. 18(4)(a) reads:

“Regardless of sub clause 2(a) if land in zone 1A adjoins land in zone 7A consent may be granted to a subdivision of the composite parcel provided each resultant allotment contains at least 40 hectares of land within zone 1A.”

51 The other two clauses that are relevant are the provisions of the zoning table applying to the Rural 1A Agriculture zone, the aim of which is to provide for the preservation of existing or potentially productive agricultural land and the objectives of this zone are to enable development which is compatible with agricultural practices with the amenity and character of the rural environment of the area [there is a second irrelevant objective].

52 The Environmental Protection 7A Habitat and Catchment zone has, as its aim, to protect and enhance sensitive natural habitat and waterway catchments. The zone objectives are:

• to protect habitat values and water quality and enable development which does not adversely impact on these; and
• to enable development that is within the environmental capacity of the land and can be adequately serviced.

53 I do not understand there to be any dispute in these proceedings that the proposed allotments can be adequately serviced.

54 Before turning to the SEPP 1 process, I should, for completeness, note that tendered, on behalf of Mr Dunlop, is correspondence between the New South Wales Department of Agriculture and Fisheries and the Town Clerk of Coffs Harbour Shire Council (as the Council was then known), dated 2 July 1991 which notes, inter alia, as follows:

“At the insistence of the owner a subsequent inspection was carried out which indicated that some of the steep north facing slopes could be cleared of vegetation and used for banana growing.”

55 I do not understand there to be any development consent either at that time or still in existence which would be applicable and which would incorporate any right to clear any area that had been identified as part of that inspection in 1991.

56 To assess an objection pursuant to SEPP 1, Lloyd J set out, in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46, the five questions that are posed by SEPP 1 that require to be addressed by the decision maker.

57 On this issue, I have had the benefit of oral evidence, both in court and informally on site, from Mr Lamont, a town planner on behalf of Mr Dunlop, and Mr Blackburn, a town planner on behalf of the Council.

58 The original application was accompanied by a SEPP 1 objection which has now been replaced by two documents. These are:

• A SEPP 1 Objection contained in a statement of evidence from Mr Lamont (dated November 2006); and

• A second, supplementary document (dated August 2007) which specifically deals with the provisions of clause 18(4)(a) of the LEP [after I had raised with the solicitors for the parties my concern that the earlier SEPP 1 objections did not adequately deal with the issue of consent for composite allotments – should that be necessary to be considered in this matter].

59 Mr Lamont, in his 2006 statement, notes, on p 7, the dual objectives of clause 18 of the LEP – they being to permit subdivision in accordance with the land’s environmental capacity and, secondly, to do so consistent with the objectives of the zone. Mr Lamont. in this statement of evidence. primarily deals with the question of the objectives of the 1A zone from p 7 onwards and then on p 10 says as follows:

“It is clear that the subject lot does not, in the opinion of the Department of Agriculture, contain existing or potential agriculturally productive land. The aims and objectives of the Rural 1A Agricultural zone is to protect something that the land does not possess.”

60 In oral evidence, Mr Lamont and Mr Blackburn agreed that there was no viable agricultural potential of the land.

61 As a consequence, the otherwise helpful table that they had prepared dividing the land area of the proposed allotments between the 1A and 7A zones, although informative, has proved to be of little assistance.

62 I note that, in addition to the broader constraints that apply to the 1A zoned land, Native Vegetation Act 2003 approval would be required (except for the limited range of activities permitted by s 11 of that Act - including s 22 of that Act which would have the effect of permitting fencing to be carried out on those portions of the site that were zoned agriculture 1A). In passing, however, I also note that clearing for fences requires development consent under the provisions of the Coramba, Karangi and Upper Orara Development Control Plan (the DCP) as it is not exempt development according to that development control plan and a tree preservation order applies to 7A zoned land, see p 37 of the DCP.

63 The tests that are required under Winton are to identify, first, Is the planning control a development standard? There are two development standards that are relevant, both of which are minimum 40 ha allotment sizes and there is no dispute that they are, in fact, development standards for SEPP 1 purposes.

64 What is the underlying object or purpose of the standard? is the second question posed by Winton. Mr Lamont has addressed, primarily, Agriculture 1A issues including when that land is attached to 7A zoned land. Mr Lamont concluded in the second of his statements that the land was in effect entirely to be classified as land capable and desirous of being regarded as land which has conservation values rather than being land which should be regarded as for agricultural purposes. The precise words he used were as follows:

“The subject land has little if any existing or potential agricultural production value but on the other hand it has very high vegetation and habitat value. It is in the community’s interest to ensure that the land is utilised for its highest and best use which in this particular case is conservation not agriculture.”

65 That is consistent with the written evidence he gave in his statement of November 2006 and is consistent with the oral evidence which he and Mr Blackburn both gave.

66 I am satisfied that the question of the agricultural capacity of the land as a zone 1A objective is clearly irrelevant in these proceedings.

67 The tests that are then put by the third Winton question relevantly in these proceedings are whether or not compliance with the development standard would tend to hinder the attainment of the objectives specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979, those objects are as follows:

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

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

68 In this case, I have had the evidence of Mr Mullins and Ms Martin concerning tree removal that would be necessary for the purposes of establishing the asset protection zones.

69 Although their survey was incomplete, I was given tallies with respect to the three house sites, as far as they had gone, for three koala habitat trees being Tallow-woods, Forest Oaks and Blackbutts with Tallow-wood being the most important of the three.

70 I have aggregated the information that they have provided to me and it is as follows. Sixty-eight Tallow-woods under 10 cm in diameter at breast height would be required to be removed, eleven Tallow-woods of between 10 and 20 cm at breast height, twelve Tallow-woods at between 20 and 40 and seven Tallow-woods at greater than 40 cm at breast height.

71 For Forest Oaks for the same four categories the numbers are 67, 10, 4 and zero and, for Blackbutts, the numbers for the same four categories are 9, 8, 4 and 2.

72 Mr Mullins also gave evidence as to his concerns about the proximity for the asset protection zone for the eastern most allotment to (i) the endangered ecological community; (ii) the Rusty Plums in the vicinity; and (iii) one species of Marsdenia. Ms Martin concurred in elements of concern but indicated she was of the view that these could be significantly ameliorated by adjusting the actual design of a house to optimise protection within the proposed building envelope.

73 Mr Mullins also expressed general concern relating to the effect of clearing of the understorey and its attendant leaf litter on species which he believed were likely to exist or did exist and which used that area of the zone. Ms Martin gave evidence that she did not consider this to be of major concern.

74 Mr Mulder drew to my attention the fact that Ms Martin expressed a preference for management of the site as a single unit. However, I understood that to be a statement in support of a single coordinated plan of management managing the site as a single unit (even if in multiple ownership) and I decline to take that as evidence contrary to the interests of Mr Dunlop.

75 Mr Mullins and Ms Martin also gave evidence about the rehabilitation prognosis for the three existing cleared or at least partially cleared house locations. They agreed on what was likely to be the range of long-term rehabilitation scenarios possible if no development were to be undertaken on any of those three sites.

76 It is fair to say that they differed significantly in their respective degrees of pessimism about the desirability or otherwise of the outcomes for each house site. Mr Mullins was more confident of a very positive likely outcomes despite the presence of lantana and Parramatta Grass and the likelihood that, in a significant and shorter term period of time, there would be significant weed growth but in the longer term he expressed the view that there was a significantly high prospect of functional rehabilitation. He expressed the view that the likelihood of that decreased, as I understood his evidence, as one moved from the eastern-most housing site to the western-most housing site. Ms Martin was significantly less positive about the likely outcomes.

77 Evidence was given about what were put as the desirable outcomes from the proposal if it were to be consented to. This evidence was given by Mr Lamont as an expert and by Mr Dunlop, Mr Jockel and Mr Armstrong as lay witnesses (their evidence was partially in writing and partially oral). All put, effectively, that the benefits could be as summarised by Mr Lamont in his second statement where he describes these as follows:

“The proposed development will encourage the proper management, development and conservation of the natural and artificial resources of the site by the imposition of an environmental management plan addressing a range of environmental matters including koala and vegetation management, soil and water management, on-site effluent disposal, bushfire control, pet control fencing and associated issues. These matters will be reinforced by the imposition of appropriate restrictions on use, easements and positive covenants on title.”

78 Many of the amelioration measures proposed in the species impact statement have also been included in the “without prejudice” conditions prepared by the Council which essentially reflect the matters outlined in Mr Lamont’s second statement of evidence.

79 I asked Mr Campbell, on the first day of the hearing (and repeated it to him prior to closing submissions), why would it not be possible (and achieve a better outcome) if:

• there were only one house on the site at some location; and
• two (or if a different site were chosen to all those identified for this application, all three - none, however, being suggested) of the house sites were left to revegetate; and
• would it not be possible to deal with that by imposing all of the matters that Mr Lamont canvasses by conditions of development consent attaching to a single house on the site?

80 I asked him to consider whether or not such a process would be consistent with the principles enunciated in Newbury District Council v Secretary of State of the Environment [1981] AC 578 which are:

1. the conditions must be imposed for a planning purpose;
2. the conditions must be fairly and reasonably relating to the development for which permission is being given; and
3. the conditions must be reasonable.

81 Mr Campbell’s answers to these were twofold, as I understood them. First, the practical proposition that three pairs of hands or families or households would be much more likely to achieve functional and proper attainment of the various environmental benefits – particularly given the topography of the site and the unusual shape and distance from one end of the site to the other. Second, he questioned whether or not the second of the tests posed in Newbury would permit such conditions to be attached to an application for a single dwelling as they would necessarily require to fairly and reasonably relate to the application for consent for the construction of such a dwelling.

82 I turn, first, to the question of the second of the Newbury tests in this context.

83 Any single dwelling on the existing allotment, whether at one of the three sites identified in this application or at some other site, is going to require clearing and impacts on the environment of a kind that would make a very broad range of environmental conditions appropriate to be imposed as a consequence of the application and consistent with the tests contained in Newbury.

84 I am satisfied that, given the correct characterisation (despite the legal zoning of the site) of the site as being almost entirely environmentally sensitive land, it would be possible, on such a house development application, to impose the range of conditions that are proposed by Mr Lamont on activities in the vicinity of that house site.

85 Indeed, although one might speculate that, had the Council had greater regard to the provisions of the second of the two clauses in the REP to which I adverted, this might have led to a broader application of the 7A zoning in this vicinity (and not merely to this site), thisis not presently relevant.

86 I am satisfied that, under circumstances of one dwelling only, it would probably not be appropriate to impose such conditions with respect to the other unused housing locations. However, given that no development would be permitted of any significance on any such unused site, I am unable to accept that there would necessarily be benefits denied from the absence of such controls - any benefits would not flow from an absence of such controls on the other two sites but from the longterm revegetation process.

87 As to the three households as opposed to one household argument, I cannot accept that the first of the alternatives (a maximum of one house and Newbury-compliant conditions plus revegetation occurring at either two or three of the presently identified house sites) is not preferable to the impacts of three households.

88 The first clearly leads to a better environmental outcome given Mr Lamont and Mr Blackburn’s characterisation of the totality of the site and the ecologists prognosis for recovery – even at its lowest.

89 I cannot be satisfied, therefore, that requiring adherence to the development standard is either unnecessary or unreasonable.

90 Requiring retention of the existing already now non-compliant lot is, in my view, both reasonable and necessary, for the attaining of the objective that is set out at the commencement of clause 18, that is the first of the elements of that clause - to have regard to the environmental capacity of the land.

91 In addition, with respect to those portions of the land that are zoned 7A, I am satisfied that it is also necessary and reasonable to require adherence to the standard for those.

92 Having said that, I therefore do not need to consider the degree of non-compliance with the minimum lot size with two of the lots only being ten percent of the minimum that is provided for in either zone under the LEP and the other being significantly less than half of the minimum that is provided for in either zone under the LEP.

S 79C issues

93 I turn to the question of s 79C of the Act.

94 Given the conclusions that I have already expressed about the failure of the SEPP 1 objection, the only comment I need to make, in detail, concerns the eastern-most allotment which is Lot 24.

95 Mr Mullins’ evidence concerning the Rusty Plum; the Marsdenia; and the proximity of the lowland rain forest endangered ecological community to the necessary asset protection zone for this site is such, coupled with the fact that there was a degree of uncertainty in Ms Martin’s approach (but taking her view at its most positive) that I am satisfied a precautionary approach to the possible impact on the two threatened species and the endangered ecological community would render this an unacceptable location for a house.

96 As a consequence of the immediately foregoing, I would also refuse the application on that s 79C basis alone.

Omitted matters

97 As a consequence of my conclusions above, there are two other matters with which I do not need to deal.

98 The first is the question of the Council’s subdivision moratorium policy which I understand continues to apply (and as I also understand it has applied consistently in accordance with the principles discussed by McClellan CJ in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472).

99 The second is that I do not need to deal with questions which could arise from my obligations, set out by the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, to consider any other matters possibly arising out of the Subdivision Development Control Plan or any other detail arising from any other development control plan.

100 The orders of the Court will be as follows:

1. The appeal is dismissed;
2. Development Application 1063/04 for subdivision of 590 Coramba Road, Karangi into the three allotments is determined by the refusal of development consent; and
3. The exhibits, other than Exhibit 13, are returned.

Tim Moore

Commissioner of the Court