Eden Valley Holdings Pty Limited v Blue Mountains City Council
[2014] NSWLEC 1258
•16 December 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Eden Valley Holdings Pty Limited v Blue Mountains City Council [2014] NSWLEC 1258 Hearing dates: 1-4 and 11 July 2014. Further submissions on 26 September 2014 Decision date: 16 December 2014 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed.
2. The development application (X/160/2013) for alterations and additions to an existing house for use as tourist accommodation at 19 Birdwood Avenue, Katoomba, is refused.
3. The exhibits, except Exhibit 23, may be returned.
Catchwords: DEVELOPMENT APPLICATION- alterations and additions to an existing house for use as tourist accommodation. Permissibility under heritage incentive clause (cl 25.6), impact on heritage significance, adequacy of bushfire management measures and impact of asset protection zone on native vegetation. Legislation Cited: Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Rural Fires Act 1997
Rural Fires Amendment (Vegetation Clearing) Act 2014
Rural Fires Act Regulation 2013
State Environmental Planning Policy No. 1 - Development Standards
State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011Cases Cited: Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70
MacDonald v Mosman Municipal Council (1999) 105 LGERA 49Category: Principal judgment Parties: Eden Valley Holdings Pty Limited (Applicant)
Blue Mountains City Council (Respondent)Representation: Ms S Duggan SC (Applicant)
Mr I Hemmings SC (Respondent)
McPhee Kelshaw (Respondent)
Conomos Legal (Applicant)
File Number(s): 10975 of 2013
Judgment
This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Blue Mountains City Council (council) of a development application (X/160/2013) for alterations and additions to an existing house for use as tourist accommodation at 19 Birdwood Avenue, Katoomba (site).
The key issues in the case are whether:
i. the proposed development is permissible as it relies on the heritage incentive clause (cl 25.6) of Blue Mountains Local Environmental Plan1991 (LEP 1991);
ii. bushfire management measures are adequate to minimise bushfire risk to an acceptable level;
iii. the Asset Protection Zone (APZ) will have an acceptable impact on native vegetation; and
iv. the loss of native vegetation will have an acceptable visual impact.
Site and locality
The site comprises three adjoining allotments, being lots 2, 3 and 4 in Deposited Plan 347417. It is located is approximately 1.5km south of the Katoomba town centre on the southern side of Birdwood Avenue and to the west of Lilianfels Avenue. It has a frontage of approximately 190m to Birdwood Avenue and an area of around 2.8ha.
The site is currently developed with a two storey dwelling known as 'Khandala' which is located on the eastern most allotment (lot 2). A tree lined drive provides access from Birdwood Avenue and a disused tennis court and croquet lawn are to the east of the house with landscape gardens and bush to the south. Lots 3 and 4 are vacant and vegetated. The landscaping around the house is run down and the vegetation has been effected by the recent bushfire in 2011.
The site is a heritage item under LEP 1991 and the Statement of Significance in the Heritage Inventory states:
Criterion (a) Historical
Khandala, more than any other country retreat in the Blue Mountains, presents today virtually all the attributes of a major estate of the late Victorian and Edwardian period. The contrast with its comparable and much better known neighbour, Sir Frederick Darley's Lilianfels (K 038), is very striking: All that has been lost at Lilianfels is still legible and meaningful at Khandala.
The association with the very wealthy, extended family which owned Fairymead in Bundaberg, and their deep involvement with evangelical Christianity, creating the Katoomba Christian Convention, which met at Khandala from 1903 until 1942, give the property high historical significance at the State level.
Criterion (c) Aesthetic
More than most surviving nineteenth- and early-twentieth-century summer retreats in the Blue Mountains, Khandala continues to represent many of the attributes sought out by those who could afford to develop a summer home in the mountains. The house is sited to take in broad and spectacular views over the edge of the cliffs into the World Heritage area. A substantial garden was laid out around the house including a tree lined drive and leisure was provided for with the croquet lawn and tennis court.
Designed by the well known architect and planner John Sulman, the house itself is a particularly fine example of the Federation Queen Anne style incorporating interesting roof forms, half timbered and shingled gables, verandahs, and well detailed chimneys.
The garden of Khandala is of aesthetic significance as the developed setting for a large residence designed by a distinguished architect. It contains intact elements demonstrative of gardens of the period, particularly its well formed drive, with a low stone retaining wall and planted with Monterey Pines (Pinus radiate) which are now very mature; the small side driveway with remnant bridge supports diverging to the original coach-house; the level grassed platform to one side of the house indicating the location of the croquet lawn; and the garden terracing on the slope to the front of the house. The lowest branch of an old Pin Oak spans the driveway close to the house and provides a delightful natural gateway to the inner sanctum.
The entire estate has high State significance for its aesthetic values.
Criterion (d) Social
The Katoomba Christian Convention, which met at Khandala from 1903 until 1942 and thereafter at another Young property nearby, was 'one of the oldest annual fixtures of the Blue Mountains' (1942 news-clipping) and attracted delegates from all over the Christian world. As Canon Begbie said in 1962, the Convention 'is a nerve centre in a united way for evangelistic and missionary effort in the state' (S. Braga, A Century Preaching Christ, 151). Its social values are high at a State level.
Criterion (f) Rarity
Of the large nineteenth- and early-twentieth-century private retreats in the Blue Mountains, very few survive intact with most of the gardens and grounds that contribute to their setting. Khandala is one such rare example, at the State level.
Criterion (g) Representativeness
More than most surviving Victorian or Edwardian summer retreats in the Blue Mountains, Khandala continues to represent at the State level of significance many of the attributes sought out by those who could afford to develop a summer home in the mountains. The house is sited to take in the majestic views over escarpment of the Jamison Valley. A substantial garden was laid out around the house including a tree-lined drive and leisure was provided for with the croquet lawn and tennis court.
The house itself is a high quality representative example of the Federation Queen Anne style incorporating interesting roof forms, half timbered and shingled gables, verandahs and well detailed chimneys.
The site slopes from Birdwood Avenue towards the Crown Reserve, which forms the north western boundary of the site. It also slopes steeply from the house towards the escarpment of the Jamison Valley and the house has extensive views to the Three Sisters and the Jamison Valley. The Blue Mountains National Park adjoins the western and southern boundary of the site, which is listed by UNESCO as a World Heritage Site. Immediately below this boundary is the Prince Henry Cliff Walk, which links the Echo Point precinct to the east of the site with Katoomba Falls Reserve to the west.
Surrounding development is largely characterised by residential dwellings to the north and north east of the site, with a number of larger tourist accommodation buildings located further to the east of and above the site, including Echoes Guesthouse and Lilianfels. Katoomba Park is located across Birdwood Avenue to the north west.
Prior to the applicant's purchase of the site in 2011, it was used as a private dwelling house with limited ancillary use as holiday accommodation. The Young family owned the site in the period 1897 to 2011.
Proposal
The description of the proposal included in the Statement of Environmental Effects lodged with the development application is for the Proposed Conversion of an Existing Heritage Item for use as a Guesthouse and Construction of Associated Conference Facilities (Original Application). The function/conference facilities (camp house) and villa (building two) were deleted from the proposal during the assessment process due to bushfire issues (Amended Application).
The works to be undertaken to the dwelling house in the Original and Amended Application involved demolition of parts of the building, internal alterations and changes to room layouts. In response to the Contentions and expert evidence, the applicant, at the commencement of the hearing, sought and was granted leave to rely on amended plans which reduced the extent of demolition and changes to the existing dwelling (the Application).
The Application for which consent is sought includes alterations to the existing dwelling. The ground floor would be converted to office space, storage and guest facilities, including a library, sitting rooms and billiards room. The upper floor would be converted to provide two accommodation rooms with ensuites.
An addition would be constructed to the west of the dwelling with the hotel lobby/reception and bar area linking the existing dwelling to a new accommodation wing. That wing includes a proposed dining room and kitchen at ground level and two levels of accommodation at lower levels, described as Lower Ground Levels 1 and 2. A timber deck would be constructed along the southern side of the existing dwelling that would extend around the southern, western and northern sides adjoining the Ground Level of the new structure and forming the roof over Lower Ground Level 1. The lobby/reception area is designed as a light-weight glass structure linking the two buildings.
Lower Ground Level 2 of the new wing would have eight accommodation rooms and Lower Ground Level 1 contains a further nine rooms, spa area and plant rooms. The spa room is designated as a bunker room for occupants in the event of a fire.
A two storey 2 bed villa is also proposed and would be constructed to the north of the existing tennis court and croquet lawn (both of which are to be re-established) and setback 1.5m from the eastern property boundary in the vicinity of an adjacent house.
The Application includes construction of car parking areas, driveway access, stormwater infrastructure and site landscaping. To address bushfire issues, a bush fire APZ is to be implemented as an Inner Protection Area (IPA) which would extend for 50 metres to the east, south and west of the proposal.
Vehicular access would be provided off Birdwood Avenue and pedestrian access from a pathway that links to the intersection of Birdwood Avenue and Katoomba Street. Parking is provided for 21 cars to the north of the existing dwelling with a loading bay provided adjacent to the proposed new building. Two accessible parking spaces are provided adjacent to the main entry resulting in a total of 23 on site spaces. Additional and replacement tree planting is proposed to line the driveway areas.
Planning Framework
The site is subject to two different zones under LEP 1991. The part of the site on which the Khandala house is located (being part Lot 2) is zoned Residential Bushland Conservation (RES-BC) under LEP 1991. The remainder of Lot 2 and the remaining lots making up the total site are zoned Environmental Protection (EP). The proposed use is prohibited in each of those zones.
Clause 9.3 of LEP 1991 states:
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.
The principle objectives of the plan are found at cl 3 and those relevant to the application are:
(a) Maintain the unique character of the CityTo 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.
....
(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.
....
(f) Economic Development and Employment
To encourage tourism and other economic enterprises and the creation of employment opportunities which are sympathetic to the Blue Mountains' character, and promote long term sustainability in the use of resources.
Additional objectives for the Blue Mountains Ridge also apply and those relevant to the application are:
(a) To maintain and enhance the natural bushland buffer zones between towns.
(b) To ensure that development for tourism and recreation is consistent with the conservation of the natural landscape, the cultural heritage, the environment and the Blue Mountains National Park.
....
(i) To minimise the impact of development on the Blue Mountains National Park by providing appropriate buffer areas and protecting wildlife corridors.
The objectives of the RES-BC zone are:
(a) To ensure that all development including subdivision is environmentally sensitive and site responsive and maintains and facilitates sustainable natural ecosystems and biodiversity within the Blue Mountains.
(b) To utilise best practice water management techniques:
· to protect, and where practicable to improve, existing perennial and non-perennial watercourses and the associated riparian zone, and
· to protect, and where practicable to improve, water quality, and
· to maintain pre-development downstream flow patterns, and
· to promote ecologically sustainable water and land management practices.
(c) To establish an appropriate landscape character by encouraging the preservation, regeneration and re-establishment of native bushland, where practicable.
(d) To ensure that the form and siting of development, and the building materials, colours, and landscaping utilised in that development, are each appropriate for, and harmonise with, the bushland character of the area in which the development is to take place.
(e) To ensure bushfire protection measures are adequate to protect proposed development and are able to be implemented without unacceptable adverse environmental impacts.
(f) To ensure that non-residential land uses are compatible with the residential character of the area in which development is proposed.
The objectives of the EP zone are:
(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.
Under clause 10.5(e), that part of the site which is steeper than 33% (1:3) is, for the purpose of LEP 1991, deemed to be a Protected Area - Environmental Constraint Area and the objectives under cl 7.2 are:
7.2 Environmental Constraint Area
(a) To protect environmentally sensitive land and areas of high scenic value in the City.
(b) To provide a buffer around areas of ecological significance.
(c) To restrict development on land that is inappropriate by reason of its physical characteristics or bushfire risk.
The site is identified as a Protected Area - Escarpment Area and the objectives under cl 7.3 are:
7.3 Escarpment Area
(a) To preserve and enhance the natural environmental and visual significance of the escarpment system of the Blue Mountains.
(b) To limit the presence of buildings and works in the escarpment area and to limit the impact of buildings on the perception of the escarpment as a significant natural feature.
(c) To limit the proportion of hard surfaces in the escarpment area and to provide for the restoration of all degraded areas and their return to a natural habitat.
Additional development criteria for Protected Areas are provided in clause 11, those relevant to the Application are:
11.3 Environmental Constraint AreaThe Council shall not consent to development in a Protected Area - Environmental Constraint Area, unless it is satisfied, by means of a detailed environmental assessment, that the development complies with the objectives of the Protected Area that are relevant to the development and will comply with the development criteria in clause 10 that are relevant to the development.
11.4 Escarpment Area
(a) The Council shall not consent to any development involving the clearing of vegetation in an area designated as Protected Area - Escarpment Area, unless it is satisfied, by means of an assessment of the landscape and environmental impact of the proposed development, that the visual and ecological effects of the proposed clearing will not compromise the Protected Area - Escarpment Area objectives.
(b) No building, other than of single storey construction, shall be erected in a Protected Area - Escarpment Area if it protrudes above the vegetation canopy of the immediate locality, or the height of adjacent buildings.
General development criteria are contained in cl 10 of LEP 1991 which include: cl 10.2 Access; cl 10.4 Design and Character; cl 10.5 Environmental Impact; cl 10.6 Height of Buildings; cl 10.7 Heritage; cl 10.8 Services and cl 10.9 Site Coverage.
Clause 10.5 - Environmental Impact relevantly provides:
10.5 Environmental Impact
(a) The Council shall not consent to development unless the development:
........
(ii) avoids unnecessary clearing of indigenous plants, and
(iii) minimises site disturbance and soil erosion, and
....
(v) incorporates best practice water management techniques to protect the surface and groundwater regimes and water quality for the site.
....
(ca) The Council shall not consent to development, other than subdivision, unless the development:
(i) incorporates effective measures, within the boundaries of the lot concerned, and satisfactory to the Council, to protect the development from bushfire, and
(ii) mitigates the adverse environmental impacts of those measures to the maximum extent practicable.
(da) The Council shall not consent to development for the purpose of a dwelling house, or to development ordinarily incidental and ancillary to a dwelling house, on any lot created otherwise than in accordance with clause 34.1 (c), unless the development incorporates effective measures, satisfactory to the Council, to ensure that the development has no significant adverse environmental impact on:
(i) any environmentally sensitive vegetation unit (as listed in Schedule 3), and
.....
(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.
....
(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.
.....
Significant parts of the site are 'Development Excluded Land', which is defined in Schedule 4 of LEP 1991 to relevantly include:
Development excluded land means any part of a lot:
(a) that is land zoned Environmental Protection, or
......
(c) on which any Schedule 3 environmentally sensitive vegetation unit is located, together with any buffers required to protect that unit, or
......
(g) that has a slope in excess of 20%, or
......
Environmentally sensitive vegetation units in Schedule 3 of LEP 1991 include (2G) Eucalyptus oreades Open forest/Tall Open forest (Tall Open Forest), (5A) Blue Mountains Heath and Shrub (Heath and Scrub) and (7) Blue Mountains Escarpment Complex (BMEC). The parties disagree on which, if any, vegetation community is located on the site and whether the proposal satisfies the requirements of cl 10.5(db), which is discussed later in this judgment.
Clause 10.6 of LEP 1991 includes development standards for height in the following terms:
(a) The Council shall not consent to development for the purpose of a building which exceeds two storeys.
(b) The Council shall not consent to development for the purpose of a building which exceeds 8 metres in height above natural ground level at any point measured to the highest point of the roof.
(c) The Council shall not consent to development for the purpose of a building the maximum height of which, when measured at the eaves, gutter line or any equivalent building element to a point on the natural ground level immediately below, exceeds 6.5 metres.
The application does not comply with the development standards for height and an objection to that development standard has been lodged under the provisions of State Environmental Planning Policy No. 1 - Development Standards (SEPP1). The council did not contend that the SEPP 1 was not well founded or that the application could not be approved on the basis of the SEPP 1 objection.
Clause 10.9 restricts the total building site cover on the site depending upon its notional development area. The development does not comply with the site coverage standard and a SEPP 1 objection was lodged during the hearing which addressed Contention B12 and council did not submit that the SEPP 1 was not well founded or that the application could not be approved on the basis of the SEPP 1.
Khandala is a heritage item (KA001) under LEP 1991 and is within the Jamison Valley Heritage Conservation Area (K007) (HCA). The Prince Henry Cliff Walk is a heritage item (K14) within the vicinity of the site. Clause 25.3 provides:
25.3 The Council shall not grant consent to a development application in respect of:
(a) a heritage item, or
(b) development likely to affect a heritage item, or
(c) development in a Heritage Conservation Area,
unless it has assessed the effect that the development would have on the heritage significance of the heritage item or Heritage Conservation Area.
Note. The website of the Heritage Branch of the Department of Planning has publications that provide guidance on assessing the impact of proposed development on the heritage significance of items (for example, Statements of Heritage Impact).
The development is not permissible under the RES-BC or the EP zones and relies on cl 25.6 for its permissibility which provides:
25.6 The Council may grant consent to development, other than subdivision, for any purpose, of a building that is a heritage item or is within a Heritage Conservation Area, or of the land on which the building is erected, even though development for that purpose would otherwise be prohibited by this plan, if it is satisfied that:
(a) the proposed development would not adversely affect:
· the heritage significance of the building or any Heritage Conservation Area within which the building is situated, or
· the amenity of any Heritage Conservation Area within which the building is situated, or
· the heritage significance and amenity of the surrounding neighbourhood, and
(b) when the building is a heritage item:
· the heritage item will be most appropriately conserved if used for the proposed development, and
· a conservation plan, prepared for the heritage item, supports the proposed development.
A threshold issue is whether the proposal meets the requirement in cl 25.6(b), which is discussed later in this judgment.
Clause 30 of LEP 1991 requires that the proposed development be contained within a Principal Development Area (PDA) which, under cl 30.3, does not include any Development Excluded Land. The applicant has lodged an objection under SEPP 1 to the development standard and council accepts that some departure from the PDA requirements may be acceptable, and did not press this as a reason to refuse the application.
The site is mapped as bushfire prone land. Section 100B of the Rural Fires Act 1997 (RFA) provides:
100B Bush fire safety authorities
(1) The Commissioner may issue a bush fire safety authority for:
(a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or
(b) development of bush fire prone land for a special fire protection purpose.
(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.
(3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1).
(4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations.
(5) Development to which subsection (1) applies:
(a) does not include the carrying out of internal alterations to any building, and
(a1) does not include the carrying out of any development excluded from the operation of this section by the regulations, and
(b) is not complying development for the purposes of the Environmental Planning and Assessment Act 1979, despite any environmental planning instrument.
(6) In this section:
special fire protection purpose means the purpose of the following:
(a) a school,
(b) a child care centre,
(c) a hospital (including a hospital for the mentally ill or mentally disordered),
(d) a hotel, motel or other tourist accommodation,
(e) a building wholly or principally used as a home or other establishment for mentally incapacitated persons,
(f) seniors housing within the meaning of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004,
(g) a group home within the meaning of State Environmental Planning Policy No 9-Group Homes,
(h) a retirement village,
(i) any other purpose prescribed by the regulations.
The proposed development is identified as a Special Fire Protection Purpose (SFPP) under the RFA and requires a bush fire safety authority (BFSA). The proposal is Integrated Development under s 97 of the EPA Act and s 91A requires that before granting consent, general terms of approval (GTA) must be obtained from the Rural Fire Service (RFS). Clause 44 of the RFA Regulation 2013 (the Regulations) specifies the matters that an application for a BFSA must include, such as an assessment against Planning for Bushfire Protection 2006 (PBP).
The RFS undertook a merit based assessment of the development and on 6 August 2013 issued a deemed BFSA as required under s 100B of the RFA, subject to advice and conditions. A key dispute between the parties is whether a development constructed and conducted in accordance with the BFSA would ensure adequate safety, which is discussed later in this judgment.
A Hazard Reduction Certificate (HRC) under s 100F of the RFA was issued on 23 May 2011. This allows for clearing around the existing building (20m north, east and west and 30m south), which has generally occurred.
On the 1 August 2014, the Rural Fires Amendment (Vegetation Clearing) Act 2014 commenced. Under the amendment, Part 4, Division 9 of the RFA now makes provision for vegetation clearing work. Section 100 R relevantly provides:
100R Carrying out vegetation clearing work
(1) The owner of land situated within a 10/50 vegetation clearing entitlement area may carry out any of the following vegetation clearing work on that land despite any requirement for an approval, consent or other authorisation for the work made by the Native Vegetation Act 2003 or the Environmental Planning and Assessment Act 1979 or any other Act or instrument made under an Act:
(a) the removal, destruction (by means other than by fire) or pruning of any vegetation (including trees or parts of trees) within 10 metres,
(b) the removal, destruction (by means other than by fire) or pruning of any vegetation, except for trees or parts of trees, within 50 metres,
of an external wall of a building containing habitable rooms that comprises or is part of residential accommodation or a high-risk facility.
(2) Vegetation clearing work carried out pursuant to subsection (1) must be carried out in accordance with the 10/50 Vegetation Clearing Code of Practice.
The site is within a 10/50 vegetation clearing entitlement area and both the existing house and the proposed tourist and visitor accommodation are 'residential accommodation' as defined in s 100P. 'Tree' is defined to mean:
tree means a perennial woody plant having a single stem or trunk and which is 3 or more metres in height and the trunk of which has a circumference at a height of 1.3 metres above the ground of more than 0.3 metre. A tree does not include a shrub, which is a small, low growing, woody plant with multiple stems, nor a vine, which is a woody plant that depends on an erect substrate to grow on.
Section 100Q of the RFA provides for the making of the 10/50 Vegetation Clearing Code of Practice (Code), which has been prepared by the RFS.
Clause 7 of the Code makes provision in relation to vegetation clearing. Clause 7.1 repeats the requirements in cl 100R(1)(a) and (b) that all vegetation (including trees) may be removed or pruned within 10m and that all vegetation (excluding trees) may be removed or pruned between 10m and 50m. Under cl 7.5, tree removal or pruning (more than 75% of the canopy) is not permitted on slopes greater than 18 degrees, except in accordance with conditions identified in a geotechnical engineering assessment report.
After the hearing, the parties were granted leave to provide further submissions on the operation of the amendments to the RFA. An agreed Statement of Facts and Issues on the RFA, as amended, was filed on 26 September 2014 (Agreed Facts).
The site is located within the Warragamba Catchment identified under State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 and development within the Catchment requires the concurrence of the Sydney Catchment Authority, which has been granted.
Blue Mountains Development Control Plan No. 5 - Echo Point Katoomba (DCP) applies to the site. It is located in the area identified as Area 6 Residential Precinct - Escarpment Controls. The Area 6 controls primarily apply to residential development but the following objective in cl 3 is relevant to the application:
(a) to ensure new development is compatible with the existing built form, and in particular that tourist orientated development permissible under existing zonings is of minimal impact and of low visual intrusiveness in the precinct.
Draft Blue Mountains Local Environmental Plan 2013 (Draft LEP) has been exhibited and, at the time of the hearing, the parties agreed that it was not imminent or certain. Under the Draft LEP, the site would be zoned Environmental Living E4 (Lot 2) and Environmental Conservation E2 (Lots 3 and 4). The proposed use would remain prohibited in these zones and would rely on cl 5.10 - Heritage for its permissibility.
Evidence
The Court visited the site and surrounding area. No objectors gave evidence but a submission in response to the notification of the development application was in evidence. This generally reflected the council contentions, and emphasised that further development along the escarpment would have an adverse visual impact on the Jamison Valley and World Heritage listed Blue Mountains, particularly through loss of vegetation.
The Court heard the following expert evidence:
On behalf of council
Mr C Aitken, heritage architect
Mr D Fanning, ecological consultant
Mr G Swain, bushfire consultant
Mr J Travers, bushfire consultant
On behalf of the applicant
Mr R Staas, heritage architect
Mr L Smith, ecological consultant
Mr M Taylor, landscape architect
Mr W Tucker, bushfire consultant
Quantity surveying evidence was tendered from Mr C Bylett, for the council and Mr P Elphick, for the applicant, on the refurbishment cost of the existing dwelling and its grounds. A Statement of Evidence was provided on behalf of the applicant from Dr R Lamb on visual impacts and Mr A Betros on planning. These experts were not required for cross examination.
HERITAGE
As a result of the amendments, which included changes to the proposed works to the existing dwelling and the design of the 'link', the experts agree that :
Despite continuing disagreement in regard to the proposed application for development of a Tourist facility and potential changes to the setting of the house as a result of the Fire Protection Measures, the issues revolving around the proposed design as they relate to the existing house and the form and location of the new building have been largely resolved to an acceptable level apart from issues noted above.
Mr Aitken's main remaining issue about the proposed design related to the southwards extent of the proposed link which, in his opinion, did not reflect the extent of the rear verandah and the original circulation area of the house. Mr Staas considered the proposed arrangement to be acceptable as it provides a reasonable degree of access from the house to the new facilities without affecting any significant heritage values of the highly modified western façade.
Mr Aitken and Mr Staas disagree on the impact of the works required for the APZ on the setting of Khandala and the Prince Henry Cliff Walk. They also disagree on whether Khandala will be 'most appropriately conserved' if used for the proposed 'tourist facility' and consequently, whether cl 25.6(b) of LEP 1991 is satisfied.
Mr Aitken and Mr Staas agree that Khandala and its grounds are of heritage significance and that the impact of the 2011 fire on the surrounding bush has affected its visual and landscape setting. Mr Staas considers that 'the proposed APZ can be managed and designed to retain an acceptable setting for the heritage item while providing protection to the building in the event of a substantial bush fire'. In his opinion, bushfire measures are likely to be required to better protect the existing house whether or not it is used for tourist accommodation.
Dr Lamb acknowledged that as a result of the APZ there will be a 'reduction in existing and future predicted tree canopy and shrub cover over part of the site' and 'an increase in the visibility of the site's built form and managed landscape when seen from some directions'. He characterised the visual effect of the APZ as 'providing a more park like appearance to the immediate landscape than has recently existed'. In his opinion, the changes were 'not unacceptable when considered in the context of the development visible along the escarpment in the general vicinity and in other parts of the margins of the city'.
Mr Aitken considers that the 'intensive tourist use' requires bushfire measures and an extended APZ, which will limit natural regeneration and will change the bushland setting of the house. Under cross examination, he acknowledged that the Statement of Significance in the Heritage Inventory refers to Khandala and its 'grounds', however, the description of the 'grounds' does not refer to the natural bushland but only to the cultural landscape. However, he maintained that the reference to 'country or summer retreat' and the siting of the house to take into account the views towards the escarpment of the Jamison Valley infer that the bushland setting is also part of the significance of the item.
Mr Staas and Mr Aitken also disagree on the impact of clearing for the APZ on the Prince Henry Cliff Walk, which adjoins the western boundary of the site and is a heritage item. Mr Staas considers the impact is acceptable as the 'walkway' is already affected by numerous developments along its entire length' and the APZ 'does not extend to the boundary of the site and the Landscape Architect confirms that additional planting can be achieved at any point along the track where views of the subject site are considered unacceptable.'
In Mr Aitken's opinion, the APZ will, in some parts, be within a few metres of the Prince Henry Cliff Walk and the change to the bushland will impact on the setting of the walk and open up views to the new development. He acknowledged that the walkway is lower than the site and consequently views into the site would be restricted but he considered that from certain vantage points the slope of the site would be visible and the change from a bushland setting to an open parkland would be apparent, particularly the views from the lookout. He did not consider the impact on the view from the lookout would warrant refusal of the application.
Mr Aitken and Mr Staas also held different views on whether the proposed tourist facility is the 'most appropriate use' and consequently whether the proposal satisfies the requirements of cl 25.6(b) and is permissible.
Mr Staas considered that 'while there are a small number of possible uses of the site that might be considered as involving less impact on the original setting of the house, none of these would provide a sound financial base for the conservation and continued management of the house and grounds as is proposed in the current proposal. Any future use of the house itself is likely to involve similar levels of intervention to that proposed in the current application and any commercial activity is likely to involve some additional accommodation and parking.' He stated that he had provided advice about conservation works and costs to prospective purchasers of the property in 2011 for use as a dwelling but acknowledged that, at this time the house was marketed at $5 million, which may discourage interest, but was sold for $2.25.
In Mr Aitken's opinion, alternative options for the use of the site have not been considered in the documentation supporting the application, including the Conservation Management Plan (CMP) and the Heritage Impact Assessment (HIA). He noted that there are a number of large houses in the Upper Blue Mountains which are heritage items and continue to be used as houses or small scale tourist facilities, such as B&Bs. It therefore cannot be concluded that the proposed tourist facility is the most appropriate use of the site.
Under cross examination and on the basis of assumptions, Mr Aitken accepted that depending upon the financial position and needs of a future owner, the use of the existing building as a dwelling may result in internal changes and additions and the croquet lawn, tennis court, stone walling and planting along the driveway may not be reinstated. He also accepted that the extent of changes to the house may be the same as those in the Application and that it provided certainty that the cultural planting would be reinstated.
Submissions
The key difference in the submission of the parties is whether alternative uses have been adequately assessed to demonstrate that the proposed tourist accommodation is the use that will 'most appropriately conserve the heritage item'. They agree that the satisfaction of cl 25.6(b) is a precondition to the permissibility of the development.
Ms Duggan SC, for the applicant, submits that the supporting documentation and the expert evidence has examined a range of appropriate uses and the likely impact on the significant fabric of the item. Of these, the proposal would involve no greater (or even less) change to the original building than other uses and it would ensure the conservation of the cultural landscape, which may not be achieved if the building was used as a house. The costs agreed by the quantity surveyors indicate that depending on the extent of works, it will require about $700,000 to $1.4 million to upgrade the house to contemporary standard of accommodation, with additional costs for works to the grounds and purchase costs, which Ms Duggan submits are prohibitive. Whereas, the tourist use will provide the financial resources to undertake the conservation works. The applicant operates other tourist facilities, including Lilianfels and Echo Point, and is therefore well placed to determine the financial viability of the project. The proposed use is the most appropriate as it will conserve the house and its grounds and cl 25.6(b) is satisfied.
Mr Hemmings SC, for the council, submits that cl 25.6(b) requires an identification of appropriate uses, consideration of the impacts and a comparison of the different options for use to determine which would most appropriately conserve the item. This exercise would include a consideration of the financial feasibility of each option. The CMP and HIA do not include a comparison of options. Mr Staas' consideration of options is based on his understanding that the use of the site for a dwelling is not financially viable, whereas the proposed use is. Mr Aitken's evidence, under cross examination, is based on hypothetical situations and is an attempt by the applicant to provide the comparison required to satisfy cl 25.6(b). The evidence is inadequate for the Court to determine that the item is most appropriately conserved if used for the proposed development.
Findings
The development is not permissible under the RES-BC or the EP zones and relies on cl 25.6 of LEP 1991 for its permissibility. The parties disagree on whether the Court can be satisfied that 'the heritage item will be most appropriately conserved if used for the proposed development' (cl 25.6(b)) and consequently whether consent can be granted.
Although expressed differently, the parties accepted that for cl 25.6(b) to be satisfied, it is first necessary to determine appropriate options, which were generally agreed to be uses that provide accommodation, ranging from an existing dwelling, dual occupancy, B&B to tourist accommodation. Secondly, it is necessary to consider the impacts of these options, including physical changes to fabric and conservation works. Thirdly, it is necessary to compare these options, including their financial feasibility. Clause 25.6(b) also requires that a CMP support the proposed development. This comparative exercise has not been undertaken in the CMP or other evidence to the extent that I can be satisfied that the heritage item will be 'most appropriately conserved if used for the proposed development'.
At the very least, a comparison between the retention of the existing use of the building as a dwelling and the proposal should have been made. The building was designed by Sulman as a house and it has been used for this purpose. Mr Aitken's evidence and the Statement of Facts and Contentions cast doubt on its use as a guesthouse. The Statement of Significance in the Heritage Inventory and the CMP identifies the importance of its use as a country retreat and holiday house. The continued use as a house would be the most appropriate use, unless it is demonstrated that it would involve changes that adversely affect the significance or if the item or that its retention as a house is not financially feasible.
There is evidence about the costs of conserving the house. However, there is largely anecdotal evidence about whether its continued use as a house is financially feasible. This evidence is not sufficient for me to be satisfied that the heritage item could not continue to be used as a house or that the proposed use is the most appropriate.
Clearly the proposed tourist use has benefits in that it will reinstate elements of the cultural landscape of the item which are identified as being of significance in the Heritage Inventory and the CMP, such as the tennis court and croquet lawn, which may not be reinstated if it were to continue to be used as house. However, the proposal also involves changes to the bushland setting of the item, which I accept Mr Aitken's evidence, is part of its significance. Although, the bushland setting is not explicitly referred to in the Heritage Inventory, it is implied in the Criteria. Furthermore, it is explicitly referred to in the Summary Statement of Significance in the CMP, which states:
The key nature of the heritage significance of the property relating to its size and scale and relative intactness as an outstanding well designed early period holiday home and guesthouse within its natural and cultural setting, on the edge of the Katoomba township and Jamison Valley, and in comparison to the neighbouring Lilianfels, is now rare in the local area.
The heritage experts agree that the proposed changes to the building and the cultural planting are acceptable but disagree on the impact of the APZ on the bushland setting. Their opinion was based on their understanding of the proposed APZ and the Landscape Plan, prior to changes to the plan and the agreement of Mr Swain and Mr Tucker requiring tree canopy separation of at least 10m on slopes greater than 18 degrees.
Dr Lamb's conclusions were also based on the depiction of the APZ in the Landscape Plan and prior to the agreed condition in relation to canopy separation.
The house would require a lesser APZ than the proposal and even under the Code, clearing would not extend as far into the bushland, particularly where it adjoins the Prince Henry Cliff Walk. Mr Swain also indicated that a reduced APZ may be considered for the house, as it is a heritage item and given that the occupants of a house would be familiar with the risk.
Based on the evidence, there remains a degree of uncertainty about the extent of impact of the APZ on the setting of Khandala and its visual impact. However, the setting will change from bushland to that of a 'parkland', which will impact on the significance of the heritage item. Similarly, the extent of impact of the APZ on the heritage significance of Prince Henry Cliff Walk is uncertain.
The site is also within the Jamison Valley HCA, although the joint report of the heritage experts states that the site adjoins the HCA and the impact on the HCA was not discussed. While the impact on the HCA may not be in contention, cl 25.6(a) requires satisfaction that the proposed development would not adversely affect the heritage significance of any HCA. Based on the evidence, I am unsure as to the impact on its significance, particularly given that the Heritage Inventory for the Jamison Valley HCA does not appear to be in evidence. If the application were to be approved, I would need to be satisfied that this matter had been adequately addressed.
I note that the Draft LEP has a different conservation incentive provision (cl 5.10(10)), which include satisfaction that 'the conservation of the heritage item is facilitated by the granting of consent', which may be a less onerous test than the one under cl 25.6(b). However, this instrument is not imminent or certain and is not the instrument under which the application must be assessed.
BUSHFIRE SAFETY
Mr Swain and Mr Tucker agree that the site is classified as bushfire prone land and, as the development is for SFPP, it is integrated development under s 100 of the RFA. Compliance with PBP is required and the development is subject to the specific objectives of s 4.2.5 of PBP, which applies to infill SFPP developments. The appropriate control for determining construction requirements for bushfire protection is AS3959 2009 Construction of buildings in bushfire prone areas (the Standard). For the purpose of determining the APZ the predominant vegetation within 140m of the building is classified as 'forest' and the gradient of the site within the minimum distance to satisfy the 'effective slope' analysis (a minimum distance of 100m measured from the building) exceeds 20 degrees.
The key disagreement between the experts is whether the BFSA will ensure adequate safety in the event of a bushfire. The BFSA requires a 50m APZ to be managed as an IPA, the construction of the main accommodation building to comply with BAL 40 standards and an Emergency/Management Plan (EMP), which includes the requirement that the facility be closed on certain days, including during a total fire ban.
Mr Swain did not consider the 'nominal' 20 degree downslope accepted by the RFS represents the 'effective slope' of the site and consequently it was not appropriate to rely on the deemed to satisfy tables of the Standard. Mr Travers undertook performance assessment modelling on behalf of Mr Swain, with a 50m APZ and slope inputs of 26, 23 and 20 degrees, which Mr Swain considers represent the 'effective slope' in different parts of the site (Travers modelling). The modelling determined that the Flame Length would be 95.5m, 95.2m and 81.71m respectively. Based on the Travers modelling, Mr Swain concluded that the proposed APZ was inadequate and would result in the development being within the Flame Zone and the existing and new buildings could be 'engulfed by flame'.
Mr Swain also raised concerns that the density of vegetation required for an APZ was not correctly shown on the Landscape Plan and about the practicality of the management measures. He accepted that the closure of the facility on nominated days could occur, but was concerned that even if people were evacuated or were in the bunker, fire fighters would be exposed to an increased and unacceptable risk. In his opinion, the site is unsuitable for the development as it would expose more people to risk than the current use of the site.
If the development were to be approved, Mr Swain recommended that the construction should comply with BAL FZ standards rather than BAL 40, as the development would be within the Flame Zone.
Mr Tucker explained the use of a 'nominal' 20 degree downslope resulted from onsite discussions with representatives of the RFS where it was considered that the 'most likely fire run is from the north on gentler slopes and that the fire would likely travel around the site in a northerly to southern direction rather than the impacts upslope from the escarpment'. The application was therefore considered on the on the basis of a Forest assessment and the deemed to satisfy tables in the Standard for up to a 20 degree downslope, which demonstrate that the proposal (with the deletion of the camp house and Villa 2) is outside the Flame Zone and that the 50m APZ and BAL 40 construction is adequate.
Mr Tucker considered the management measures could reasonably be implemented and, as the facility is likely to be closed in the event of a fire, this would not pose additional risk to fire fighters. He acknowledges that if the site were vacant and had not been used as a guesthouse, he would not consider it to be suitable for a new SFPP development but, as an infill development, appropriate concessions should be made.
Mr Tucker undertook modelling (Tucker modelling), which increased the slope and modified other input variables such as fuel loads, Fire Danger Index (FDI) and flame temperature to those used in the Travers modelling. He noted that the 'context of steeper slopes to the southern and western aspect must be considered in perspective with the available fuel loads and likely fire weather occurring from these aspects.' He determined average FDI, temperature and humidity inputs based on the weather conditions during the last bushfire danger season (1 October 2013 to 30 March 2014) and lower fuel loads for the western aspect. His modelling supported that a 50m APZ would be sufficient to place the development outside the Flame Zone and that the BAL 40 construction was adequate.
Mr Swain disagreed with Mr Tucker's FDI and fuel load inputs. In particular, he stated that the FDI of 100 applies to the Greater Sydney Area, including the Blue Mountains, and under PBP is assumed as a 1 in 50 year event.
Mr Travers undertook further modelling using a slope of 20 degrees and actual weather data from the Bureau of Meteorology (BOM). He did not accept the use of averaging for FDI and reached different conclusions.
Submissions
Ms Duggan and Mr Hemmings spent considerable time cross examining the fire experts on their assumptions and the consistency of their approach with PBP. Ms Duggan and Mr Hemmings made lengthy and competing submissions about the correct approach to the application of PBP and consequently the adequacy of the bushfire measure proposed for the development.
Council's submissions
The application of PBP to infill SFPPs in s 4.2.5 is a 'dispensation' from the 'preferred standards' for other development and SFPPs in PBP. In particular, throughout PBP the key bushfire protection measure (BPM) is an adequate APZ to provide a fuel reduced, physical separation between buildings and bushfire hazards. The APZ Tables in Appendix 2 are based on the desirable radiant heat levels at the building. This allows an area for fire fighters to defend the property and for access to and from the building.
The 'preferred standards' for SFPPs are in the Table to s 4.2.7, which include a performance criteria for a maximum heat level of 10kW/sqm with an acceptable solution being a minimum 100m APZ (Appendix 2, Table A2.6). An APZ should not to be located on land with a slope exceeding 18 degrees.
Only in 'exceptional circumstances' can the APZ be reduced or 'traded off' for increased construction standards and/or evacuation measures. 'Exceptional circumstances' in s 3.3 include that 'the extension should be no closer to the hazard than the existing building footprint'.
The provisions in s 4.2.5 for SFPPs as infill development require 'an appropriate combination of bushfire protection measures and compliance with the intent and performance criteria of each measure within s 4.3.5', which provides specifications and requirements for BPM for infill development, including a 100m APZ as an acceptable solution to meet the performance criteria, unless there are exceptional circumstances.
There are not 'exceptional circumstances' which would permit a reduced APZ of 50 m, on land in excess of 18 degrees that places the development closer to the hazard than the existing building.
Section 4.2.5 also recognises that 'existing circumstances may make the preferred standards difficult to achieve.' The preference is to apply the requirements of PBP, but there may be reasons why, for an infill development, the preferred standards cannot be met.
Modelling was undertaken by Mr Tucker and Mr Travers to understand what the radiant heat level will be in the immediate context of the proposed building. The purpose of determining the radiant heat levels is firstly, to identify the necessary construction level of a building, and secondly, whether fire fighters will be exposed to heat levels above the recommended maximum of 10 kw/sqm for SFPPs. The most significant difference between the modelling is the correct approach to the FDI input. PBP states:
Fire weather assessment assumes a credible worst case scenario and an absence of any other mitigating factors relating to aspect or prevailing winds. The 1:50 year fire weather scenario for most of the State was determined as FDI=80, however, a number of areas including Greater Sydney....have higher FDIs which are set at 100. This is believed to occur with reasonable frequency in their respective fire areas....' (Appendix 2, A2.2)
Other inputs such as vegetation type, slope, fuel loads, direction of fire, width of fire source, flame temperature, may be varied to address the site specifics but the FDI is a credible worst case scenario of 100. The lower FDI used by Mr Tucker (11, 15, 31 and 51) result in flame lengths and radiant heat levels which are significantly less. For example a model where all the inputs are the same other than FDI where Mr Tucker used FDI 15 and Mr Travers FDI 100 results in significantly different outputs including flame length of 21.79m (Tucker) and 95.2m (Travers) and radiant heat of 9.23kW/sqm (Tucker) and 45.66kW/sqm (Travers).
The experts disagreed on other inputs such as whether flame temperature should be 1090K or 1200K, but these and other variable inputs have less impact on the outputs than FDI. The experts agree that the 'effective slope' exceeds 20 degrees. It is appropriate to work out the 'effective slope' from the direction of the fire source rather than averaging it over the site. All the models with an 'effective slope' of 20 degrees or more and an FDI of 100 result in a flame length which would exceed the 50m APZ.
Due to the inadequate APZ there is a need to close the facility at certain times so that it is not occupied in the event of fire and to provide a bunker if people remain on site. The practicality of implementing such measures is questioned in the absence of an agreed EMP. If fires occur during times when the premises are not closed, the increase in the intensity of use exposes fire fighters to a significantly greater risk in ensuring the premises are evacuated or that the occupants are in the bunker, in radiant heat levels which are greater than that recommended by PBP for SFPPs.
The location of the APZ on slope greater than 18 degrees assists the propagation of fire between canopies and is inconsistent with PBP. To address this, the experts have agreed to a condition that on an upslope of greater than 18 degrees the canopy separation shall be at least 10 metres. Consequently, the landscape plan does not represent the extent of planting on the site. There will be no trees within the first 10 metres of the APZ as that would connect canopy to the hazard. This has the potential to significantly change the way in which the development will appear and this has not been assessed by the heritage experts. It also raises questions of how the APZ is to be managed on slopes in excess of 18 degrees.
In conclusion, Mr Hemmings submits that the Court would not be satisfied that the approach taken to bushfire safety on this land is appropriate or satisfies the requirement of cl 10.5(ca)(i) of LEP 1991.
Applicant's submissions
The only issue is whether the development is sited, designed and constructed appropriately having regard to bushfire risk. PBP does not use the term 'dispensation'. It recognises that bushfire risk cannot be eliminated but that it should be managed so that there are acceptable risks in relation to different types of development. Greenfield sites, existing subdivision, infill developments and particular types of development for SFPPs, which include hotel/motel or other tourist accommodation, have different considerations to determine risk and management of that risk.
PBP provides:
The general principles underlying the document are protection measures that are governed by the degree of threat posed to a development. A minimum setback from hazard is always required, ie, a defendable space. The greater the setback from hazard the lower the subsequent bushfire protection construction standards required, the smaller the interface a development has to fronting bushfire et cetera. No development in a bushfire prone area can be guaranteed to be entirely safe from bushfires.
The BFSA issued by the RFS identified that the proposed development (the camp house and Villa 2) was within the Flame Zone and should be relocated outside the Flame Zone. These buildings have been deleted from the Application and consequently the development for which consent is now sought, is outside the Flame Zone. The intent of the APZ is to 'provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with the building'. The proposed APZ achieves the requirements specified in the BFSA. Similarly, the construction standard of BAL 40 or below is met and the existing building is to be upgraded. Other requirements in the BFSA for water and utilities, internal roads and landscaping are complied with or exceeded. The facility will be managed in accordance with the requirements of the BFSA and an EMP will be prepared, which has been considered by the RFS in draft form. The suite of measures ensure adequate fire safety is achieved.
There is no requirement for the modelling that was undertaken by Mr Travers, on behalf of Mr Swain, due to his concerns about the use of a 'nominal slope' of 20 degrees. Mr Tucker explained that this slope best reflects the fire behaviour given the particular circumstances of the site and was the approach taken by the RFS. The use of the deemed to satisfy provisions in the Standard was also accepted by Mr Tucker and the RFS, as appropriate. The modelling in Table 2.4.2 of the Standard uses FDI 100 and demonstrates that 50m APZ and BAL 40 construction is adequate to manage the bushfire risk on the site. While Mr Tucker did not agree that modelling is required, in response to the Travers modelling, he modelled a year in which the Springwood fires occurred to demonstrate that a devastating fire can occur where the FDI was significantly less than 100. This modelling also demonstrated that the development would be outside the Flame Zone.
Mr Swain accepts the adequacy of the bushfire measures proposed for the development, including that the site can be evacuated. He disagrees that the proposal is outside the Flame Zone and therefore considers that it should be built to BAL FZ standard. Although not considered necessary, the applicant would accept this as a condition of approval.
Even if the radiant heat is more than 10kW/sqm at the building, the EMP will ensure that the facility will be closed and people are not present. Or if they are, the bunker is agreed by the experts to be adequate. There is no change to the risk to fire fighters except that there may be more people in this building than the existing house. However, they will be in a bunker, which is a better than the current situation in the existing dwelling.
Under PBP, an infill SFPP, does not need to demonstrate that there are exceptional circumstances for an APZ of less than 100m, provided there are other measures which trade off the reduction in APZ. Nonetheless, the site could not provide an APZ of 100m, which, of itself, is an exceptional circumstance.
Similarly, it is not necessary for an infill SFPP development to demonstrate exceptional circumstance for an APZ on a slope greater than 18 degrees. Nevertheless, Mr Swain's main concern about the APZ was the spread of crown fires, which has been resolved by the condition that on an upslope of greater than 18 degrees the canopy separation shall be 10m. The maintenance of the APZ can be achieved without the need for terracing, which is not part of this application.
An exceptional circumstance to reduce an APZ is if the extensions are no closer to the hazard than the existing, which is achieved by moving the hazard further away. Furthermore, the proposed addition cannot be moved elsewhere on the site to be further from the hazard.
In conclusion, Ms Duggan submits that the Court would be satisfied that the approach taken to bushfire safety on this land is appropriate or meets the requirement of LEP 1991.
Findings
A BFSA has been issued by the RFS but it does not resolve the Court of its obligation to be satisfied that the development satisfies the requirements of PBP and LEP 1991, including the requirement under cl 10.5(ca) that consent shall not be granted unless the development:
(i) incorporates effective measures, within the boundaries of the lot concerned, and satisfactory to the Council, to protect the development from bushfire, and
.....
The experts agree that PBP is relevant and specifically s 4.2.5 which applies to infill SFPP development. It provides:
4.2.5 SFPPs as infill
In circumstances where alterations or additions to existing SFPP's facilities are proposed, the RFS requires an appropriate combination of bush fire protection measures and compliance with the intent and performance criteria of each measure within section 4.3.5.
However, it is also acknowledged that existing circumstances may make the preferred standards difficult to achieve. In such cases, the specific objectives in Section 4.2.3 are to be followed.
Alterations and additions to existing SFPP's (i.e. approved prior to 1st August 2002), including their external appearance or finish, which may involve an increase in size and footprint of the building or redevelopment of an existing building are considered to be infill development.
This type of development should also seek to achieve a better bush fire risk outcome (such as improved construction standards) than if the development did not proceed. The new building work should comply with AS 3959 - 1999 (and Appendix 3 of PBP) or be no closer to the hazard than the existing building. Existing facilities such as water supply should also be upgraded.
The Bushfire Hazard Assessment Report prepared in November 2012 (the Bushfire Report) submitted with the Original Application relied on the provisions for infill SFPP in s 4.2.5. It commented on the proposal's ability to satisfy the intent and performance criteria in s 4.2.5 and the specific objectives in s 4.2.3. It accepted that exceptional circumstances must be demonstrated for reductions in APZ's and outlined the proposals' compliance with the principles in s 3.3 for exceptional circumstances to apply.
The Bushfire Report, the RFS and the experts have assessed the proposal as SFPP as infill and this was not in dispute between the parties. As I understand, this was on the basis that the existing dwelling was previously used as a guesthouse and is therefore an existing SFPP. However, the heritage evidence and the Amended Statement of Facts and Contentions state that the site was used as a private dwelling with limited ancillary use as holiday accommodation and does not have existing use rights. Presumably, if there were existing use rights, there would be no need to rely on cl 25.6 for permissibility. The Amended Statement of Facts and Contentions refers to correspondence between the council, the applicant and the RFS regarding if the past use of the site was tourist accommodation to determine whether the proposed SFPP would be infill development under PBP. However, this correspondence does not appear to be in evidence and I am therefore not sure on what basis the decision to assess the application as an infill SFPP was made. If the Application were otherwise acceptable, I would need to be satisfied that any previous use of the site for tourist accommodation was approved prior to 2002 and it was therefore infill SFPP. Nonetheless, as the parties have not raised this as an issue, I have accepted that the development is infill SFPP and should be assessed on this basis.
The preferred standards in PBP seek to achieve an optimum bush fire risk outcome and s 4.2.5 is effectively a 'dispensation' or 'compromise' from these preferred standards, in recognition of the constraints posed by existing development and approved uses of land. However, the key question is whether the intent of the standards is met and adequate bushfire safety achieved.
In the first instance, s 4.2.5 'requires an appropriate combination of bush fire protection measures and compliance with the intent and performance criteria of each measure within section 4.3.5', which provides specifications and requirements for BPM for infill development.
The Table to s 4.3.5 includes a performance criteria for an APZ and states that:
The intent may be achieved where:
A defendable space is provided on site
An asset protection zone is provided and maintained for the life of the development.
The acceptable solution specified in the Table to s 4.3.5 refers to Appendix 2 (Table A2.6), which would require a 100m APZ. Clearly s 4.2.5 envisages that this can be reduced if the intent of the performance criteria is met and, as stated in s 4.3.5:
Proposals to reduce APZ requirements....need to consider the advice on exceptional circumstances in section 3.3.
The evidence of Mr Travers and Mr Swain raises considerable questions as to whether the APZ will provide a defendable space, given the likelihood that the development will be within the Flame Zone and therefore, whether the intent of the performance criteria is achieved. Their evidence also questions the appropriateness of an APZ on a slope greater than 18 degrees and whether there are exceptional circumstances to reduce the APZ.
Section 4.2.5 acknowledges that 'existing circumstances may make the preferred standards difficult to achieve. In such cases, the specific objectives in section 4.2.3 are to be followed.' The specific objectives in s 4.2.3 are to:
· provide for the special characteristics and needs of occupants. Unlike residential subdivisions, which can be built to a construction standard to withstand the fire event, enabling occupants and firefighters to provide property protection after the passage of fire, occupants of SFPP developments may not be able to assist in property protection. They are more likely to be adversely affected by smoke or heat while being evacuated
· provide for safe emergency evacuation procedures. SFPP Developments are highly dependent on suitable emergency evacuation arrangements, which require greater separation from bush fire threats.
During emergencies, the risk to firefighters and other emergency services personnel can be high through prolonged exposure, where door-to-door warnings are being given and exposure to the bush fire is imminent.
Furthermore, s 4.2.3 provides that:
Exceptional circumstances must be demonstrated for reductions in APZ (required by Appendix 2) or APZ on adjoining land (see section 3.3).
I am not satisfied that the specific objectives in s 4.2.3 are met. The BFSA requires the preparation of an EMP, which amongst other things defines the management procedure for the closure of the building on days during a total fire ban, periods of extreme or catastrophic fire danger or when directed by the RFS. Ms Duggan's submissions rely heavily on the closure of the facility and that there will be nobody there and no need for firefighters to visit the property as the 'gates will be locked'.
In Ms Duggan's submissions in reply, she referred to the Draft EMP prepared in November 2012 submitted with the Original Application. She submits that the Draft EMP addresses the issues raised by Mr Hemmings in relation to the absence of such a plan and the lack of certainty in the evacuation procedures. The Draft EMP was not discussed by the experts and relates only to closure of the facility on days of Catastrophic bushfire and clearly envisages the possible relocation/evacuation of occupants in the event that a bushfire may impact on the facility. While a final EMP will be prepared in consultation with the RFS, it has not been demonstrated that it is reasonably feasible that the facility will be closed prior to a fire and that there will not be times when occupants will be present on the site and may need to be evacuated, which may require the assistance of fire fighters and other services.
The experts agree that the bunker room is adequate to accommodate people if the facility has not been closed and people remain on site. However, I do not accept that the presence of this room will not result in the potential need for firefighters to attend the site in the event of a fire.
I accept Mr Swain's evidence that the increase in the intensity of the use from a single dwelling or a low scale guesthouse, to a larger commercial tourist facility will expose an increased number of people to risk who are unfamiliar with bush fires. It will also expose firefighters to additional risk due to the need to ensure that the site is evacuated or that people are safe within the bunker. While the bunker would reduce the risk to those people remaining on the site, it does not outweigh the additional risk resulting from an increased number of people potentially being on the site compared to that of a less intensive use.
The potential for firefighters to be present on the site in the event of a bushfire is of particular concern due to the issues raised by Mr Travers and Mr Swain in relation to the use of the deemed to satisfy modelling in Table 2.4.2 of the Standard and the likelihood that the development will be in the Flame Zone with no defendable space. If an FDI of 100 is used, on any modelling, including the deemed to satisfy in Table 2.4.2 of the Standard, the radiant heat levels likely to be experienced at the building well exceed the target of 10kw/sqm. I accept that an FDI of 100 is appropriate as this represents the credible worst case scenario which can occur on the site with reasonable frequency.
Section 4.2.3 also refers to need to demonstrate exceptional circumstances for reductions in APZ's and refers to s 3.3 which provides:
Consideration is on a case-by-case basis and the applicant should provide clear evidence that, because of the circumstances of the case e.g. location or type of use, strict prescriptive compliance is unreasonable and unnecessary.
For exceptional circumstances to apply, the following principles should be demonstrated:
· the existing form of development will obtain a better bush fire risk outcome than if the development did not proceed (e.g. through increased construction standards);
· the building line should be no closer to the hazard than neighbouring properties;
· the extensions should be no closer to the hazard than the existing building footprint;
· an upgrade of existing facilities may be required; and
· the proposal is an infill arrangement and site constraints do not allow APZ requirements to be met.
An increase in residential densities is not, by itself,
considered an exceptional circumstance.
I accept Mr Swain's concern about the reduced APZ for the proposed development. The new building will be closer to the hazard for part of its north and western elevations, unless the hazard is moved. The hazard is that which currently exists on the site and moving the hazard further away is not a justification for a reduced APZ.
Section 4.2.5 acknowledges that 'existing circumstances may make the preferred standards difficult to achieve. In such cases, the specific objectives in section 4.2.3 are to be followed.' For this site, the 'existing circumstances' would include the constraints of retaining the existing heritage building and conserving its significance, which restrict the location of future development on the site. The size of the site also restricts the ability to provide an APZ on the site that would comply with the requirements of Appendix 2 for a SFPP. While the 'existing circumstances' may make the preferred standards difficult to achieve, it does not of itself justify the development or dispensations from the standards. Rather it raises questions as to the appropriateness of a SFPP development on the site of the scale and intensity proposal. Mr Tucker stated that if the site were vacant, he would not support a new tourist facility on the site, due to the bushfire risks, but considers that the proposal is acceptable as it adds to an 'existing' tourist accommodation.
Mr Swain recognised that due to the size of the site it would be difficult to provide an APZ which met the minimum specifications in Appendix 2. He accepted that as the existing dwelling is a heritage item concessions would be necessary to ensure its retention, such as reduced APZ and reduced clearing to protect vegetation. However, as a single dwelling, there would be considerably less people exposed to risk and they would be familiar with the risk and acceptable safety could be achieved. He did not consider that a reduction in the APZ, which places the building closer to the hazard for a more intensive tourist facility is appropriate, particularly as the slope for the APZ is greater than 20 degrees.
The Bushfire Report stated that other than to the north, the slope of the site is 15 to 20 degrees downslope. The experts have now agreed that the 'effective slope' of the site is greater than 20 degrees and in some places the slope is considerably greater. Even if the most likely fire source is from the north on gentler slopes, vegetation in the other directions with slopes above 20 degrees, is also identified as a hazard, with a history of fires, such as the 1986 fire that came from the south west, of which Mr Tucker was unaware. The use of the deemed to satisfy tables in the Standard for slopes which exceed 20 degrees may not be appropriate.
The bushfire protection measures in the BFSA, such as the improved access, water and utility services and upgrades to the existing house are improvements to what currently exists on the site. However, on balance, they do not provide a better bush fire risk outcome given that the new development will be closer to the hazard and will result in an increased number of people who are unfamiliar with the risk. The evidence of Mr Travers and Mr Swain has raised doubts about the adequacy of the proposed bushfire protection measures in the BFSA and on the assumptions upon which the risk was assessed. Consequently, I am not satisfied that the proposal incorporates effective measures to protect the development from bushfire as required by cl 10.5(ca).
IMPACT ON VEGETATION
Council's Native Vegetation Mapping (Douglas 2001) identifies most of the site as BMEC. The experts accept that the mapping should be ground truthed on site. The key disagreement between Mr Fanning and Mr Smith was whether the existing vegetation on the site comprise BMEC or another vegetation community, listed in Schedule 3 of LEP 1991, and the extent of that community.
Mr Smith undertook ground truthing of the site in 2012 as part of his preparation of the Flora and Fauna Assessment (Flora Assessment) submitted with the Original Application. He undertook a flora survey of quadrates in the proposed extension of the APZ and found:
The diagnostic flora species detected throughout Quadrants 1-17 correspond to those which typically occur in the Eucalyptus piperita/E.sieberi Open Forest. Those detected in Quadrants 21-23 correspond to species that occur in the 'Blue Mountains Escarpment Complex' which is listed as a significant vegetation unit in the Blue Mountains Council LEP 1991. Quadrants 18-20 appear to be a transition zone between the Open Forest and Escarpment Complex but have a higher affinity with Area 2.
The Flora Assessment also discussed ecological communities and stated:
..the site contains Blue 'Blue Mountains Escarpment Complex' which is listed as a significant vegetation unit in the Blue Mountains Council LEP 1991. The proposed 20m extensions to the APZ on the southern and western sides are unlikely to have a significant impact on this community if the recommendations in Section 6 of this report are complied with.
The recommendations of the Flora Assessment included that the APZ be managed in accordance with PBP and that 'due to the steep nature of the topography of the APZ on the south and southwest and the high risk of erosion, 90% ground cover should be provided with indigenous plants, herbs, forbs and grasses'. It also recommended a weed management strategy.
In the Joint Report, Mr Smith states that the ground truthing demonstrates that the council's mapping of BMEC on the site is incorrect. Although, he and Mr Taylor state that 'BMEC will be modified within the APZ using indigenous species and managed in accordance with PBP'. His concerns about the council mapping of BMEC principally relate to the northern and north western parts of the site, which based on factors such as geology and soil types, he concludes are Eucalyptus piperita/E.sieberi Open Forest. This is consistent with his analysis in the Flora Assessment. However, his map attached to the Joint Report indicates that the area previously identified as BMEC (Quadrates 21-23) is now identified as Tall Open Forest and the area previously identified as a transition between BMEC and Open Forest (Quadrates 18-20) is now identified as Shrub and Heath which forms a transition to the open forest to the north. An area is also identified between Quadrates 18-23 and the development and the existing house as 'Previously cleared, probable transition zone between O/F (Open Forest) and Open Scrub/Heath'.
As I understand, Mr Smith's explanation for his change in opinion is that the species identified in the quadrates correspond to the diagnostic species for BMEC, but this is not sufficient to identify it as a BMEC community, which is also associated with 'moist, sheltered rock faces, the escarpments and other extensive outcroppings of sandstones in the Blue mountains'.
Mr Fanning identified BMEC that was generally consistent with the council's mapping of BMEC on the site.
Regardless, of the disagreement on whether there is BMEC on the site, the experts agree that there are vegetation communities identified in Schedule 3 of LEP 1991 in the area within the red line in Exhibit S. This area corresponds to Quadrates 18-23. Both experts acknowledged, with reference to the aerial photos, that the vegetation on the site had and would regenerate after bushfires.
The experts also disagree on the impact of the works required to establish and maintain the APZ on the vegetation community, including removal of trees, shrub layer and some ground cover to achieve a density of tree canopy of 15% and shrub cover of 20%.
Mr Smith accepted that a buffer would be required to maintain the vegetation community from impacts, such as edge effects and that no buffer was provided. He initially agreed that the APZ would result in the vegetation community, whether BMEC, Tall Open Forest or Shrub and Heath, being modified vegetation with species from the community. He later clarified that it would remain a vegetation community, albeit modified. He considered that the APZ would not have an adverse environmental impact on the vegetation community as it would be appropriately managed to reduce weeds.
Mr Fanning stated that the APZ would have an adverse environmental impact as the diverse, structurally complex community with dense tree, shrub and ground cover would be changed to 'parklike vegetation'. It would change from a vegetation community to a managed open woodland with scattered trees and low ground cover. He accepted that some incursion into the vegetation to provide an APZ was acceptable but not to the extent proposed, particularly in proximity to the Blue Mountains National Park.
Submissions
The parties agree significant parts of the site are 'development excluded land' because it is zoned environment protection and/or because it has a slope in excess of 20 degrees. They disagree on whether it contains environmentally sensitive vegetation identified in Schedule 3 of LEP 1991. The parties agree that cl 10.5(db) of LEP 1991 permits development, such as the creation of an APZ, in 'development excluded land' and such development may result in change, but disagree on whether the extent of change will have an adverse impact on 'development excluded land' and consequently whether consent can be granted.
Mr Hemmings submits that the APZ will have an adverse environmental impact on BMEC or other Schedule 3 vegetation community, which is agreed to be on the site and therefore does not meet cl 10.5(db). Ms Duggan submits that there is no BMEC on the site as Schedule 3 specifically defines the vegetation type to include certain species in association, and while BMEC species may be present, the association is not. She questions the extent of other Schedule 3 vegetation on the site and whether it fits into the definitions under Schedule 3. While there may be Heath and Scrub or Tall Open Forest vegetation communities, these are not present to any significant extent on the site, are transition areas or ecotones, have been damaged by fire and are degraded by weeds. Ms Duggan submits that any environmental impact must be assessed against the condition of the community as it currently exists on the site, not its potential for regrowth in the future. The management of the APZ through a Vegetation Management Plan (VMP) will encourage preservation, regeneration and re-establishment of native bushland. Consequently there is not an adverse environmental impact and the requirements of cl 10.5(db) are met.
The parties disagree on the interpretation of 'no adverse environmental impact on development excluded land'. Ms Duggan submits that 'no adverse' means something can have an effect which is considered negative. This approach is consistent with the purpose of the clause within the context of LEP 1991 and the 'purposive approach' in s 33 of the Interpretation Act 1987, which provides:
The interpretation or provision of an Act or a statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule whether or not that purpose or object is expressly stated in the Act or statutory rule, and in the cast of statutory rule, the Act under which the rule made shall be preferred to a construction that would not promote the purpose or object.
Ms Duggan submits that the 'no adverse impact' cannot be interpreted to mean no impact at all or no negative impact. Rather the negatives must be balanced against the positives that will be achieved through the VMP.
Mr Hemmings referred to the wording in cl 10.5(da), which permits a dwelling house provided there is 'no significant environmental effect' on matters, including Schedule 3 vegetation. He compared this to the wording in cl 10.5(db) which applies specifically to 'development excluded land' and permits development provided it has 'no adverse environment impact'. He submits the difference in language is deliberate and has a different meaning. Mr Hemmings accepts a development may result in change which may have an effect. For the purposes of cl 10.5(da), a dwelling house development must have 'no significant adverse effect', whereas for the purposes of cl 10.5(db) a development must have 'no adverse effect', which is a different and more onerous test. He submits that there is no requirement that the adverse effect be 'unacceptable' or that there be a balance between negative and positive aspects of the development. In his submission, the APZ will change Schedule 3 vegetation to no longer being Schedule 3 vegetation, which is an adverse environmental impact, and therefore consent cannot be granted.
In the Agreed Facts, the parties reviewed the operation of the RFA and the Code to the development. They agreed that the potential to carry out vegetation clearing in accordance with the Code is a relevant consideration under s 79C of the EPA Act.
The Agreed Facts included a Plan (the Plan) which identifies areas within 10m and 50m of the existing dwelling and proposed new development. They agree that within 10m of the existing dwelling or, if consent is granted, within 10m of the new development, all vegetation could be cleared including 'trees' within the definition in s 100P of the RFA, subject to compliance with cl 7.5 of the Code.
The parties agree for that all vegetation between 10m - 50m of the existing dwelling or, if consent is granted, between 10-50m of the new development, except for 'trees' within the definition in s 100P of the RFA could be cleared, subject to cl 7.5 of the Code.
The parties agree that in the area between 10m and 50m of the existing and proposed development there are 'trees' that may not be cleared. There is vegetation, which is regenerating after past bushfires and some of that vegetation, given time, is likely to fall within the definition of 'tree', but it presently does not and it could be cleared. A survey of the trees on the site has not been carried out and the number of 'trees' on the site is not known.
The parties agree that if clearing is undertaken under the Code around the existing dwelling there may be an area cleared of all vegetation (not including 'trees') up to 50m from the existing dwelling. If the consent was granted, the area of clearing that could be undertaken on the site under the Code would be extended.
The parties agree that if consent is to be granted a condition should be imposed which requires a s 88E covenant that the VMP must be implemented and that the owners are not to rely on the RFA and Code to carry out clearing or pruning. With the condition the parties conclude:
...more vegetation would be retained than that which would exist if a decision was made to clear the land pursuant to the Code in respect of the existing dwelling or the new development. That is, the retention and the provision of shrubs and trees in accordance with both the vegetation management plan and the approved landscape plan would produce a better visual and vegetation outcome than if a decision was made by the owner of the land to carry out vegetation clearing work in accordance with the Code.
Findings
Clause 10.5(db) provides:
(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.
Clause 10.5(da) and cl 10.5(db) require satisfaction that the development incorporates effective measures to ensure that there is no adverse impact on Schedule 3 vegetation. However, the test in cl 10.5(da) for a dwelling house is that there be 'no significant adverse impact', whereas the test for 'development excluded land' is that there be 'no adverse impact'. I accept Mr Hemmings' submission that there is a clear distinction between the wording of cl 10.5(da) and cl 5.10(db) for a reason. The different wording demonstrates a different purpose of each clause, which is not inconsistent with a purposive approach to the interpretation of the clause advocated by Ms Duggan.
In applying cl 10.5(db) it is first necessary to consider whether or not there is an impact as a consequence of the carrying out of development on the 'development excluded land'. If there is, it is necessary to consider whether that impact is adverse. If it is an adverse environmental impact then the Court must refuse the application. In considering whether the impact of the APZ is adverse, the matters raised by Ms Duggan, such as the extent of Schedule 3 vegetation and its condition due to the recent fire, weed infestation and ability for regrowth as well as the management of the APZ through the VMP are relevant considerations.
The experts disagree on whether there is BMEC on the site and the extent of any vegetation community. However, they agree there is Schedule 3 vegetation within the area shown on Exhibit S. The area to the north and north east of this area, on Mr Smith evidence, is a probable 'transition zone' from Schedule 3 vegetation to a vegetation type not listed on Schedule 3, whereas Mr Fanning considers this to be BMEC.
The site has a history of bushfires, most recently in 2011. The series of aerial photos demonstrate the natural regeneration of the vegetation on the site. In particular, the 2014 aerial photograph in the Joint Report illustrates the extent of regeneration since the 2011 fire. While, particularly in the 'transition zone', this revegetation may include weed growth and immature trees, it does not result in the agreed area of Schedule 3 vegetation no longer being present on the site.
The area of the APZ for the proposed development would be approximately 14,416sm and to achieve the 15% canopy cover there could be about 35 trees within the APZ (Exhibit U) and the shrub cover would be maintained at 20%. From the south east to the north west the clearing for the APZ would extend into the agreed Schedule 3 Vegetation and the density of trees and shrubs would be reduced.
In a westerly direction, the APZ would extend about 20-30m into the Schedule 3 vegetation in close proximity to the boundary of the site with the Prince Henry Cliff Walk and the Blue Mountains National Park. The slope in this part of the site is greater than 18% and the canopy separation would be at least 10m.
Even if I accept only the area in Exhibit S as being the extent of the Schedule 3 vegetation on the site, there will be an environmental impact as a consequence of the APZ, and this impact will be adverse. Principally as the Schedule 3 vegetation, whether BMEC, Tall Open Forest, Shrub and Heath, or a transition or 'ecotone' between these communities, will no longer be a community. It will be modified such that the density of vegetation will be significantly reduced, whether trees or shrubs. While species of the community would remain, the community would not. I therefore cannot conclude that there would be other than an adverse environmental impact on a significant vegetation community in Schedule 3, as the community would cease to be present within the APZ.
The Agreed Facts do not change this conclusion. In a westerly direction, the 50m clearing permissible under the Code measured from the existing dwelling would generally be within the 'transition zone' in Exhibit S and arguable does not impact on Schedule 3 vegetation. Whereas, the additional 20-30m of clearing permissible under the Code from the proposed development would extend into the Schedule 3 vegetation shown on Exhibit S. For the reasons outlined above, the clearing within the Schedule 3 Vegetation results in an adverse environmental impact.
The VMP referred to in the condition proposed in the Agreed Facts requiring a s 88E covenant has not been prepared. Issues were raised with the Landscape Plan, particularly its consistency with the requirements for the APZ on the site and the depiction of the density of tree canopy. A VMP and an amended landscape plan are required as conditions of consent. In the absence of these documents and a survey of existing trees, there is a degree of uncertainty as to the conclusion in the Agreed Facts regarding retention of vegetation, particularly trees, and this conclusion is not supported by expert evidence. If the application were to be approved, I would need to be satisfied of these matters.
It is also not clear from the material before me, whether a s 88E covenant, as required by the proposed condition, could override s 100R(1) of the RFA that permits vegetation clearing 'despite any requirement for an approval, consent or other authorisation for the work made by the Native Vegetation Act 2003 or the Environmental Planning and Assessment Act 1979 or any other Act or instrument made under an Act', so that the proposed condition would have some effect. The Agreed Facts do not discuss whether a s 88E covenant that would require the owners and their successors to not rely on the RFA and the Code to remove vegetation, which would restrict their ability to carry out actions that they are entitled to do under another Act could lawfully be imposed, or if so, whether it would be appropriate to do so (see MacDonald v Mosman Municipal Council (1999) 105 LGERA 49 and Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70).
Even if the condition agreed to by the parties for a s 88E covenant results in less clearing of vegetation within 50 m of the existing dwelling or within 50m of the proposed development compared to that which could occur under the Code. It does not alter the impact from the additional clearing under the Code or APZ within Schedule 3 vegetation that would result from the proposed development compared to the potential for clearing around only the exiting dwelling.
As the new building is between the existing dwelling and the fire hazard it would require an APZ, which extends further into the vegetation. Consequently, because of the design approach to the location of the building, the adverse environmental impact of the bushfire measures is not mitigated to the maximum extent practicable. The development therefore does not satisfy the requirements of cl 10.5(ca)(ii). Furthermore, the development does not incorporate effective measures to ensure that it has no adverse environmental impact on Schedule 3 vegetation. The development therefore does not satisfy cl 10.5(db) of LEP 1991. For these reasons consent must not be granted.
Conclusion
The proposed development provides a number of positive benefits including, conservation works to the existing dwelling and its cultural landscape. It provides tourist accommodation, which is consistent with the Tourism Strategy adopted by council for the Blue Mountains. It is not disputed that the development, with its magnificent views, would provide exceptional accommodation.
However, the site has significant constraints that are reflected in the provisions of LEP 1991, under which the development application must be considered. The considerations include that the development is not permissible in the RES-BC and EP zones and, as a heritage item, it relies on cl 25.6 for its permissibility. For the reasons discussed above, the development does not meet the threshold test in cl 25.6(b) that the 'item will be most appropriately conserved if used for the proposed development' and on this basis it must fail.
The site is bushfire prone land with a steep slope and, for the reasons discussed above, the development does not incorporate effective measures to protect it from bushfire and does not satisfy cl 10.5(ca)(i). Furthermore, the adverse impacts of the proposed APZ are not mitigated to the maximum extent possible and therefore do not satisfy cl 10.5(ca)(ii).
The site is development excluded land as it contains a vegetation community listed in Schedule 3. For the reasons discussed above, the APZ will have an adverse impact on the Schedule 3 vegetation and therefore the development does not incorporate effective measures to ensure that it has no adverse effect on development excluded land and does not satisfy cl 10.5(db).
Clause 9.3 of LEP 1991 provides that consent must not be granted unless the development complies with the relevant objectives of LEP 1991, the RES-BC and EP zones and Protected Areas. Given that the proposal does not satisfy the requirements outlined above and that they are relevant to the consideration of these objectives, clause 9.3 would also not be satisfied.
Orders
The orders of the Court are:
(1) The appeal is dismissed
(2) The development application (X/160/2013) for alterations and additions to an existing house for use as tourist accommodation at 19 Birdwood Avenue, Katoomba, is refused.
(3) The exhibits, except Exhibit 23, may be returned.
Annelise Tuor
Commissioner of the Court
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Decision last updated: 16 December 2014
Eden Valley Holdings Pty Limited v Blue Mountains City Council [2014] NSWLEC 1258
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