Ekermawi v Great Lakes Council

[2010] NSWLEC 1227

Land and Environment Court

of New South Wales

CITATION:	Ekermawi v Great Lakes Council [2010] NSWLEC 1227 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT S Ekermawi RESPONDENT Great Lakes Council
FILE NUMBER(S):	10906 of 2009
CORAM:	Moore SC
KEY ISSUES:	DEVELOPMENT APPLICATION - THREATENED SPECIES - VEGETATION :- failure to provide adequate plans; failure of expert planner to acknowledge inadequacy of plans; failure of expert planner to address necessity for plans to conform with Schedule A of the Land and Environment Court Practice Note for Class 1 Development Appeals; bushfire protection - access and asset protection zones
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Government Act 1993 State Environmental Planning Policy 14 Coastal Wetlands Roads Act 1993 Great Lakes Local Environmental Plan 1996 State Environmental Planning Policy 60 Exempt and Complying Development State Environmental Planning Policy 44 Koala Habitat Protection
CASES CITED:	BGP Properties v Lake Macquarie Council [2004] NSWLEC 399
DATES OF HEARING:	28, 29 and 30 June 2010
DATE OF JUDGMENT:	18 August 2010
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr R Mallik, solicitor Mallik Rees Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

18 August 2010

09/10906 Ekermawi v Great Lakes Council

JUDGMENT

Introduction

1 SENIOR COMMISSIONER: Minimbah Road is a winding rural road running generally south-east from Nabiac. Minimbah, the rural locality along the road has, as its southern edge, a river flowing into Wallis Lake. At the end of the constructed portion of Minimbah Road, a vehicle access track meanders generally to the south-east through the vegetation between the end of the formed road and, relevantly for these proceedings, the end of an undedicated Crown Road reserve. At the end of this access track lies Lot 201, an allotment owned by Mr. Ekermawi. Nestled amongst the trees on Lot 201 is a stainless steel railway carriage formerly owned by the Victorian Railways and now owned by Mr Ekermawi.

2 The track to the entrance of Lot 201, as traversed during the course of the site inspection discussed later, crosses two separate land tenures. The first of them is an un-made element of Minimbah Road, a dedicated public road vested in Great Lakes Council (the council) – with this element extending some 500 m or so beyond the end of the presently made section of Minimbah Road. The second element is an unmade Crown Road reserve that leads, relevantly for these proceedings, from the end of the unmade portion of Minimbah Road to the entrance gateway to Lot 201.

3 Mr. Ekermawi has applied to the council for development consent to convert his railway carriage into a dwelling. He also proposes a number of associated works comprising:

• an open awning structure to cover part of the railway carriage;
• installation of an on-site effluent disposal system;
• installation of two rainwater tanks that, by collection of the rain falling on the awning, will provide sufficient water not only for domestic uses associated with occupancy of the converted railway carriage but also for fire-fighting purposes; and
• establishment and maintenance of the necessary asset protection zone prescribed by Planning for Bushfire Protection 2006 (Planning for Bushfire Protection) by slashing of the understorey together with limited removal or pruning of trees to meet the canopy separation requirements of Planning for Bushfire Protection.

4 To assist in understanding some of that which follows, a photograph of the railway carriage is reproduced below. This photograph (Figure 1) is copied from the cover of one of the ecological reports tendered in the proceedings.

5 On the first morning at the hearing, I met the parties at the end of the constructed element of Minimbah Road. We then proceeded along the access track following the unmade portion of Minimbah Road and, subsequently, the Crown Road reserve, to the entrance of Lot 201. During the course of traversing these sections of the access track, we stopped at a variety of locations to enable Mr. Ekermawi and, for the council, its experts – Ms Dunkerley, a town planner employed by the council, Mr. Bell, the council’s Senior Ecologist, and Mr. Britt, the District Officer of the Rural Fire Service (the RFS), giving expert bushfire evidence for the council, to point out:

• various features associated with the location of the track compared to the survey markers showing the boundaries of the two road reserves;
• matters associated with the formation of the track;
• matters relating to recent vegetation clearing and rail ballast importation for the purposes of either maintaining the pre-existing track or for straightening the line of that track so that it was now entirely located within the relevant road reserve rather than deviating onto private property; and
• aspects of the surrounding undisturbed vegetation in the vicinity of the track.

6 As discussed later, for the reasons there given, these matters are rendered unnecessary to be considered in light of the conclusion I have reached about the proper scope of these proceedings.

7 We entered Lot 201 and drove some 400 m or so to the vicinity of the railway carriage earlier depicted. In addition to the railway carriage, in its vicinity, there is a caravan and an informal structure within which was located, at the time of the inspection, a damaged motor vehicle. The caravan and this structure are not matters within the scope of this application.

8 We did not enter the railway carriage as Mr. Ekermawi agreed that he was seeking to have the railway carriage treated as a movable home. The council, as a consequence, had proposed a condition, condition 6 in its without prejudice conditions of consent, requiring a separate application to the council pursuant to s 68 of the Local Government Act 1993 (the Local Government Act) for the use of the railway carriage for this purpose.

9 As a result, it was unnecessary to inspect the interior of the railway carriage as the matters that required my determination now related to general issues of identification of the location of (and possible impacts of) a movable dwelling at such location and ecological and bushfire matters relating to that location rather than the appropriateness of the interior fit out of the railway carriage.

10 Although there subsequently appeared to be some confusion in Mr. Ekermawi's mind as to whether this was the case or not, he confirmed, during the course of the final phase of the hearing, that he was proposing that the railway carriage be treated as a movable dwelling and he accepted the appropriateness of condition 6 in that context.

11 The question of precise identification of the nature and location of the railway carriage and Mr Ekermawi’s proposed works is a matter to which I will return in my discussion of the adequacy of the “plans” that have been provided in support of Mr. Ekermawi's application.

12 Whilst we were in the vicinity of the railway carriage, we walked around the railway carriage and inspected the location of the proposed southern perimeter of the asset protection zone required to meet the dimensions prescribed by Planning for Bushfire Protection. This southern asset protection zone element is located between the railway carriage and the Swamp Mahogany forest to the south. This Swamp Mahogany forest has been mapped as a wetland and is thus subject to the protections in (and constraints on development arising from) State Environmental Planning Policy 14 Coastal Wetlands (SEPP 14).

13 In addition, several steel elements were already erected on the site – these being either elements of the proposed awning intended to cover portion of the railway carriage or were structures erected to mark the location of such points. At this time, nothing would appear to turn on the precise status of those elements.

14 During the course of the evidence given informally in the vicinity of the railway carriage, Mr. Ekermawi, Mr. Britt and Mr. Bell each drew my attention to various elements within the landscape and surrounding vegetation patterns relevant to my consideration of ecological and bushfire issues (including consideration of the extent of understorey clearing and tree removal for the establishment of the necessary asset protection zone). Mr. Britt also gave evidence concerning what he saw as being the necessity for an upgrading of the section of the access track within Lot 201 because of his concerns about its surface adequacy – however, he conceded that he had no concerns, within Lot 201, about required clearance distances for a fire fighting tanker (those required clearances being in both the horizontal and vertical planes). Mr. Ekermawi, in response, made a number of observations concerning vehicles that had accessed the site in the past and the nature of the present traffic use of the access track within the property.

15 During the course of the reverse trip along the two elements of road reserve, a number of stops were made to observe additional matters of the nature observed during the inward transit.

The nature of the proceedings

16 After exchanges between Mr. Ekermawi and the council concerning the adequacy of his application (with Mr. Ekermawi providing further documentation in support of his application), the council determined to refuse the proposed development. The council’s Development Control Unit made this determination on 24 September 2009. On 1 December 2009, Mr. Ekermawi filed this appeal against this refusal. Mr. Ekermawi is self-represented in these proceedings and, as a consequence, has been afforded the appropriate procedural assistance with the presentation of his case but such assistance has not extended to the merits of his case.

17 The orders that Mr. Ekermawi sought – as indicated on his Class 1 application form filed with the Court – were in the following terms:

1. Appeal upheld
2. Council to upgrade the Gazetted public road, if necessary not the Applicant
3. That Council not to issue orders to remove infrastructures until this DA matter is resolved by the Land and Environment Court
4. That the Applicant did meet the requirements of the EPA Act 1979 as per his Ecological assessment of 1 June 2009 and its upgrades to part 4.1.4 and 4.1.5 the inserted extra 4 pages related to SEPP 71 and 14, in consultation with Council
5. That the Applicant did meet the Bushfire Protection in the assessment of 2 June 2009 lodged with the DA.

18 At the commencement of the proceedings, I discussed the matters set out in these proposed orders with Mr. Ekermawi and with Mr. Mallik, the council's solicitor. It was clear, from that discussion, that Mr. Ekermawi was not seeking approval from the Court to carry out any works on either the unconstructed section of Minimbah Road or in the Crown Road reserve that it was necessary to traverse, as earlier described, to reach the entrance to Lot 201. It was clear that Mr. Ekermawi considered that the present access track was adequate to meet the standards required for property access roads set by Planning for Bushfire Protection. It was also clear that Mr Ekermawi considered that any upgrading of the unmade portion of Minimbah Road was a council responsibility [as can be seen from his proposed order (2) set out above].

19 I indicated to Mr. Ekermawi that I had no power to order the council to undertake such works and that, if he wished to do undertake any works to this dedicated but unconstructed public road, he would need to make an application, pursuant to s 138 of the Roads Act 1993 (the Roads Act), to the council for permission to do so.

20 I also indicated to Mr. Ekermawi and Mr. Mallik that, as no such application had been made to the council and consequently brought before the Court as part of this appeal, I did not consider it appropriate to express any opinion on the various merit issues raised by the council concerning any proposed upgrading of access over this portion of Minimbah Road.

21 I further indicated to Mr. Ekermawi and Mr. Mallik that, as Mr. Ekermawi was not seeking consent for any works over the Crown Road reserve, I did not consider it appropriate to make any assessment of the necessity for or acceptability of such upgrading. I noted to them that, if this position were to change, Mr. Ekermawi would be required to obtain the consent of the Lands Department, as the owners of the Crown Road reserve, to any such works as well as applying to the council for development consent for such works.

22 I finally indicated that, on my assessment of the application made to the council, the only matters for which development consent was sought in these proceedings were works proposed to be carried out entirely within Lot 201.

23 Although significant elements of the expert evidence, which had been provided in the reports by the three experts retained by Mr. Ekermawi and in the joint reports arising from the conferencing between each of Mr. Ekermawi's experts and the relevant council expert giving evidence on behalf of the council, related to matters outside the boundaries of Lot 201, that evidence is only relevant to the extent that it demonstrated that further applications would need to be made to the council for any works to either element of the access track. I indicated to Mr. Ekermawi and Mr. Mallik that, in my view, I was confined to dealing with the proposed works on Lot 201 and I invited them to consider that proposition. After a short adjournment, each of them indicated that they accepted that that this was the appropriate scope of the proceedings.

24 Although Mr. Ekermawi was granted leave, without opposition from the council, to amend his application in a number of respects, those amendments related entirely to works proposed to be carried out on Lot 201.

25 As a consequence, the only assessment that I am required to make concerning the adequacy of the vehicle access between the presently constructed termination of Minimbah Road and the entrance to Lot 201 is whether or not some upgrading of that access is required (but not the extent, nature or acceptability of any such upgrading).

26 At the commencement of this consideration, as earlier noted, rail ballast had recently been deposited on various portions of this access track. In addition, as earlier noted, Mr. Ekermawi had cleared additional elements to provide an access track that was now confined wholly within the road reserve of Minimbah Road or the Crown Road reserve rather than deviating, as it had formerly done in its meandering path, onto private land holdings to the east of those two road reserves. Questions of the acceptability or legality of those works, both of clearing and of the deposition of the road ballast, are not matters requiring any consideration by me in these proceedings.

27 The joint report of the bushfire experts includes a number of comments by Dr Meleo, the bushfire expert retained by Mr. Ekermawi. Relevantly they acknowledge the necessity for upgrading of the access to the property. Dr Meleo made the following relevant comments that I have extracted from the joint bushfire report:

It is agreed that the RFS requirement for upgrade of the internal access track within the property and that portion between the property boundary and the termination of the formed portion of Minimbah Rd to comply with Section 4.1.2 of Planning for Bushfire Protection 2006 is appropriate.

The RFS requirements for all weather access are agreed as being appropriate.

Agreed that the upgrade of both the portion of track between the property boundary and termination of the formed portion of Minimbah Road and the internal access track should comply with section 4.1.3(2) of PBP as required by the RFS

28 The necessary consequence of this agreement between Dr Meleo and Mr. Britt is that upgrading works are required to the unconstructed portion of Minimbah Road and also within the Crown Road reserve. Any works in each of these areas will require applications to be made to the council for approval.

29 It is necessary for there to be a deferred commencement condition that requires that upgrading works as may be required to the unconstructed portion of Minimbah Road and within the Crown Road reserve to meet the requirements of Planning for Bushfire Protection shall have been undertaken to the satisfaction of the council before any consent from these proceedings becomes operative.

30 Mr Ekermawi should have a reasonable time (two years from the date of any orders in these proceedings granting development consent on this deferred basis) to satisfy such deferred commencement condition.

The planning controls

31 Lot 201 is zoned Rural 1(a) under the Great Lakes Local Environmental Plan 1996. The erection of a dwelling is permissible with development consent. There are no issues arising from any of the provisions of the plan. Similarly, there are no issues with respect to the proposal arising under any development control plan. Although, at one point during the proceedings, Mr. Ekermawi indicated that he might be entitled to erect a rural shed by relying on the provisions of State Environmental Planning Policy 60 Exempt and Complying Development, that is not a matter that requires my consideration in these proceedings.

The issues

32 The council raised a number of issues in the proceedings. There were no public submissions and, as a consequence, there are no objector issues to consider. Although the council's statement of facts and contentions listed a total of 18 contentions, a significant number of these would only arise for consideration if there were proposals as part of the this application to undertake works between the end of the constructed portion of Minimbah Road and the entrance to Lot 201. For reasons earlier discussed, there are no such proposals within the scope of matters to be determined in these proceedings and, as a consequence, these contentions relating to matters outside Lot 201 do not require assessment and determination in these proceedings.

33 Those issues raised by the council that remained for my consideration can, conveniently, be summarised as follows:

• the adequacy of the plans depicting the work is proposed to be carried out relating not only to their dimensions but also has to be precise location;
• the adequacy of the measures proposed within Lot 201 for compliance with the required access and asset protection provisions of Planning for Bushfire Protection; and
• the adequacy of the ecological information and whether or not there was any basis upon which I could conclude that appropriate habitat protective measures could be provided – both on general ecological grounds and on specific ecological grounds concerning a threatened plant (Asperula asthenes) and a threatened species of frog (the Wallum Froglet).

Case management and the expert evidence

34 This matter was the subject of three case management conferences prior to the hearing. The first two of those were conducted by Murrell C and the third by me. During the course of the second case management conference, specific directions were given concerning the preparation and filing of expert evidence, in support of Mr. Ekermawi's case, by experts in the disciplines of town planning; ecology; and bushfire protection and management. The directions given by Murrell C for each of these disciplines specifically nominated, by reference to the various contention numbers in the council's Statement of Facts and Contentions, the areas in each of the disciplines nominated above that were required to be addressed by the relevant expert. The directions required that such statements of evidence be filed by 17 May. Mr. Ekermawi filed the three required expert reports within the time specified by that direction.

35 At the commencement of the hearing in Forster Courthouse, I was advised that Mr. Ekermawi's experts were not to be made available to give oral evidence (despite Mr. Mallik having written to Mr. Ekermawi requesting that they be made available for such purpose). Mr. Ekermawi advised me that he was unable to make them available as he was of limited means and could not afford the cost of doing so – having spent in excess of $20,000 on the preparation of the expert reports and the consequent participation of each of his three experts in the joint conferencing process.

36 Although Mr. Mallik objected to Mr. Ekermawi's three expert statements of evidence (those being from Mr. Fish - town planning; Mr Mamott - ecology; and Dr. Meleo - bushfire protection and management), and to the elements contained in the three joint conference reports contributed by those three experts, I permitted the three statements and the entirety of the three joint expert reports to be admitted – subject to such submissions that Mr. Mallik might wish to make as to the weight to be given to that evidence as it was untested in court.

Adequacy of the plans

37 As earlier observed, one of the matters raised by the council related, specifically, to the inadequacy of the information provided to it - including, specifically, the inadequacy of the plans upon which Mr. Ekermawi relied for the purposes of his application. For reasons that will be obvious from the following discussion, it is appropriate to set out this contention in full. The contention is in the following terms:

1. The plans do not comply with Schedule A of the Land and Environment Court Practice Note for Class 1 Development Appeals (dated 14 May 2007) in the following respects:

• Survey plans do not indicate the location, type and spread of significant vegetation on the site and the unformed road reserve.
• The site plan is not drawn to scale, does not show the existing and proposed buildings, does not show existing significant trees or indicate whether they will be retained or removed.
• The site plan does not show the driveway entry or required road upgrading works, or identify existing significant trees or indicate whether they will be retained or removed.
• The site plan does not show the location and size of the proposed on-site sewerage management system or the location and size of the proposed rainwater storage tanks.
• The setbacks from the boundaries shown on the site plan .are inconsistent with the setbacks shown on the survey plan.
• The plans of the railway carriage and sheds are not drawn to scale and do not contain a north point.
• It is not clear what size the shed on the opposite side of the railway carriage to the 7m x 14m shed is proposed to be.
• The floor plans do not contain dimensions and sizes for all parts of the proposal.
• The floor plans do not detail the levels of floors to Australian Height Datum (AHD) or spot levels of natural ground level to AHD.
• The floor plans do not detail the wall construction or the location of all windows and doors.
• Elevation plans have not been provided of the whole railway carriage or the proposed sheds, detailing the materials and finishes, proposed window size, sill height and location or the height of eaves, ridge and floor levels' to AHD.
• Section plans have not been provided which show room names, relationship to the existing ground level or height of levels to AHD.

38 As earlier observed, during the course of case management on 30 March, Murrell C made specific directions concerning the various contentions that were to be dealt with in expert reports to be commissioned by Mr. Ekermawi. The directions given setting out the contentions required to be addressed by Mr. Ekermawi's town planning expert expressly included contention 1 set out above.

39 On 17 May, Mr. Ekermawi filed an expert report prepared by Mr. Fish, a town planning consultant whose curriculum vitae shows that he has some 14 years of post graduation experience (and a total of 21 years of related employment) in planning matters. His curriculum vitae lists the projects with which he has been associated - including a number of major works requiring the preparation of significant environmental impact statements. As Mr. Fish had not been made available for the purposes of giving oral evidence, he was unable to be questioned concerning the aspects of his expert report discussed below and, as a consequence, I had initial reservations as to the extent to which it was appropriate for me to comment on the competence or adequacy or, more correctly, incompetence and inadequacy, displayed by his expert report.

40 However, I note that, on page 7 of the document, Mr Fish states:

This Expert Report has been prepared in accordance with the Expert Evidence practice direction and the Uniform Civil Procedures [sic] Rules 2005 Part 31 and Schedule 7.

41 As a consequence of that assertion, I am satisfied that the pages and figures extracted below from the document speak, eloquently and sufficiently, for themselves and that it is enough, I am also satisfied, to deal with his report in this limited fashion and leave those who read this judgement to draw their own conclusions about Mr. Fish’s performance in these proceedings.

42 In response to the concerns about the adequacy of the plans, Mr. Fish’s written report included the matters I have highlighted in red boxes in the scanned images of the two relevant pages of his report that are reproduced below (Figures 2 and 3).

Figure 2

Figure 3

43 The “plans” that Mr. Fish appears to have endorsed as being adequate for satisfaction of the plan requirements contained in Schedule A of the Court’s Practice Note of May 2007 referred to in the council contention, are also reproduced below. The first (Figure 4) is the “plan” apparently endorsed by Mr. Fish as being an adequate and appropriate plan of the proposed awning structure over the railway carriage. Immediately below that “plan” is a second “plan” (Figure 5), also apparently endorsed by Mr. Fish as being appropriate and adequate for my assessment in these proceedings as a “plan” that is apparently intended by Mr. Fish to provide an appropriately, accurate and detailed localised element of the site plan to accompany the document reproduced immediately below that – a “plan” that he intended to be the larger more definitive site “plan” (Figure 6).

Figure 4

Figure 5

44 It is to be noted that the north point on this plan is at approximately 90⁰ to the general direction of north points on Figures 6 and 7 (although these two figures, themselves, have differing north points).

Figure 6

45 It is to be noted that, on Figure 6, two separate and conflicting dimensions are given on the north/south hand drawn axis.

Figure 7

46 Figure 7 was also included as part of Mr Fish’s expert report. This “plan” is an alternative version of the site “plan” in Figure 6 and has a differently oriented north point.

47 Although, during the course of the hearing, Mr. Ekermawi was permitted, as one of the amendments to his application, to add a number of hand written numerals to identify dimensions on the “plan” that is shown above as Figure 4, those additions cannot, obviously, rectify the fundamental inadequacy of this “plan”.

48 The two planning experts, Ms Dunkerley for the council and Mr. Fish, produced a joint expert report after discussing the contentions for their consideration as directed by Murrell C. Mr. Fish’s comments in the joint report concerning the council’s contention 1, set out earlier, repeated the comments reproduced in the scanned red boxed extracts of his expert report. His only additional comment concerning the adequacy of the plans was that:

Tony Fish (TF) is of the view that the amended plans attached in Appendix B to his report provide sufficient information although agrees that the plans are not drawn to scale.

49 It is clear that the approach taken by Mr. Fish has paid scant (if any) regard to the requirements of Schedule A of the Court’s Practice Note for Class 1 Development Appeals or, if he was aware of them, simply chose to ignore the obligations that they placed on Mr. Ekermawi.

50 For example, Schedule A sets the first four (general) requirements for plans as being:

• Plans should be drawn to an appropriate scale shown on the drawings.
• Plans should be drawn with clarity.
• Plans should indicate a north point.
• All plans shall be consistent with each other.

51 A similar lack of regard has been shown for other requirements of Schedule A of a more detail-oriented nature.

52 As a consequence, it appears to me that Mr. Ekermawi has come to this hearing believing that the plans reproduced above are sufficiently accurate and detailed to be capable of providing a basis for development consent where they clearly are not. Indeed, he appears to have relied on Mr Fish’s expert report to found (or, at least, support) such belief.

53 However, I put the proposition to Mr. Mallik that, although inadequate as to their presentation, the necessary essential information elements appeared to be present in the “plans” and was capable of being incorporated in proper plans that would meet the relevant requirements for their accuracy and presentation. Mr. Mallik agreed with this proposition.

54 A tendered survey plan, commissioned by Mr. Ekermawi from Lidbury Summers & Whiteman, consulting surveyors, provides, as was agreed by Ms Dunkerley, an adequate general site plan.

55 It therefore follows that, if properly prepared, scaled and dimensioned plans (showing the proposed awning structure in elevation and in section) – with appropriate structural and engineering details being provided with the necessary subsequent application for a construction certificate – are filed and served, there does not appear to be any information-based merit impediment to my approval of this element of the proposal. The consequences that flow from this conclusion are discussed later in the context of my consideration of how this matter should be dealt with further.

56 With respect to the matters shown, conceptually, on the plan showing the immediate vicinity of the railway carriage, Ms Dunkerley accepted that the effluent disposal report provided by Mr. Ekermawi to the council satisfied the council that it was possible to establish an effluent disposal system and appropriate effluent disposal area on the site. Subsequently, Mr. Ekermawi agreed to accept a condition that any effluent disposal area will be required to be within the asset protection zone and Mr. Bell, the council's ecologist, agreed that there would be no unacceptable ecological impact of that occurring. Such a condition is to be incorporated in the revised conditions of consent to be utilised if development consent is to be granted.

57 As Mr. Ekermawi also agreed to accept a condition requiring a separate application to the council pursuant to the Local Government Act for the installation of the effluent disposal system, there are no issues requiring my consideration arising out of that aspect of the proposed development.

58 As I understood Mr. Britt's evidence, he accepted that the two proposed rainwater storage tanks collecting rainwater from the roof of the awning proposed to be erected over the railway carriage would, in addition to providing potable water for use by the occupants of the railway carriage, also provide an adequate water supply for fire fighting purposes provided, as proposed by the RFS and incorporated in the proposed conditions, an appropriate pump and hose system was available for such purposes.

59 However, during the course of his closing submissions, Mr. Ekermawi indicated that, if I concluded that new plans were required for the awning structure, he wished to have me refuse approval for the awning structure, as he did not consider he could afford to have such plans prepared. When I questioned him as to how there would be an adequate water supply for human consumption and for fire fighting purposes, he drew my attention to the statement in his development application that he had a dam on the property. His development application also indicated that he considered it was possible to sink a bore for water supply purposes.

60 It is necessary that I be satisfied that there is an adequate water supply for domestic use and for fire fighting purposes. During the course of the site inspection, no inspection was made of the dam and, as a consequence, I have no evidence of its size and capacity and, importantly for this ecologically sensitive area, I have no information on what, if any, would be the construction impacts of the necessary trenching from the dam, wherever it is located, for piping water to the vicinity of the railway carriage to ensure that there was an adequate, fire protected, supply of water. In addition, although it might be possible for Mr. Ekermawi to obtain approval for a water supply bore of adequate yield at an appropriate location, he has not applied for the necessary licence to do so and, even if such a licence were held, I would need to be satisfied of the capacity of any such bore and such satisfaction would only come from the sinking of a bore and its flow rate testing once sunk.

61 The consequence of the foregoing is that, if I were to delete the awning and, thus, its ability to harvest rainwater, I could not be satisfied that there was an adequate water supply for domestic and fire fighting purposes and I would be obliged to refuse the application.

62 The appropriate alternative, in my view, is to retain the proposed awning and require the preparation of adequate plans for the awning through the process discussed at the conclusion of this decision. If, in the alternative, Mr. Ekermawi wished subsequently to seek to delete the awning and substitute another water supply, he could discuss with the council whether or not that could be achieved by a modification application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the EPA Act) (should he eventually obtain, through the outcome of these proceedings) an operative development consent for his various proposals).

Bushfire issues

63 During the course of his oral evidence, Mr. Britt indicated that he was now satisfied that the proposed 20 m asset protection zone to the south of the railway carriage was acceptable and that, to the north, east and west of the railway carriage, a 35 m asset protection zone only was required rather than the 100 m asset protection zone for which Mr. Ekermawi seeks approval.

64 Mr. Britt also indicated, during the course of the site inspection, his concerns about the long-term compliance of the internal access within the Lot 201 being presently or remaining for the future compliant with the necessary standard in 4.2.3 of Planning for Bushfire Protection namely that tankers of up to 15 tonnes should be able to traverse the track. He suggested that works might be required to achieve the necessary standard and, subsequently, to retain the track's compliance with that standard.

65 Mr Britt also indicated, in his oral evidence, that he considered that there would be no difficulty in constructing the internal loop track or turning circle that would be necessary for compliance with Planning for Bushfire Protection nor would there be any difficulty in constructing the necessary vehicle passing bays required within the property for such compliance.

66 Mr. Bell indicated that he did not consider that there would be any unacceptable ecological impacts from the use of the present access track within Lot 201, the creation of any necessary passing bays within Lot 201, the clearing of a 35 m asset protection zone to the north east and west and the proposed asset protection zone element to the south of the railway carriage as marked and inspected during the course of the site visit. He also agreed that canopy thinning and tree removal within the more limited asset protection zone would be acceptable if it were properly supervised as proposed by the council's without prejudice conditions of consent and subject to restrictions so that no hollow bearing trees, no Scribbly Gums and no Swamp Mahoganies (these two tree species being koala food trees) were removed during any canopy separation establishment as required by Planning for Bushfire Protection.

67 Mr. Bell also agreed that necessary canopy pruning to achieve the requirements of the Planning for Bushfire Protection could be undertaken without unacceptable ecological impacts provided it was confined to the smaller proposed asset protection zone specified by Mr. Britt in his oral evidence and subject to the same tree restrictions as earlier noted.

68 It was Mr. Britt’s uncontradicted oral evidence that, if there were to be an asset protection zone on the more limited basis he proposed, this limited asset protection zone, coupled with a requirement that the railway carriage comply with level 1 construction standards, which I understood to require matters such as window screens to a specified fire resistant standard and the like, would mean that the railway carriage would be protected from ember attack and would not be subject to direct flame attack and thus would provide a safe refuge for any occupants of the property, at any time there might be a bushfire on the property. It was also Mr. Britt’s oral evidence, in response to a question from Mr. Ekermawi, that not only was any more extensive asset protection zone unnecessary (than that described by Mr. Britt in this oral evidence) but that any increased asset protection zone – to the dimensions requested by Mr. Ekermawi – would not provide any effective increase in bushfire protection to occupants of the property.

69 Mr. Britt, however, also acknowledged that, although he had reservations about the present standard of the access track within Lot 201, he was not an expert in road construction.

70 In light of the obvious history of the use of the track to deliver the railway carriage and other materials to Mr. Ekermawi's construction location, together with the limited traffic use that the track will sustain as a consequence of the proposed use of the railway carriage for residential purposes, I am satisfied that no work would be required, at present, to upgrade the track within Lot 201 to be satisfactory, in the short term, for compliance with the relevant provisions of Planning for Bushfire Protection. However, it will be necessary for there to be a condition of development consent that requires that the access track, passing bays and turning loop within Lot 201 be maintained in a condition that will permit safe passage by a vehicle weighing 15 tonnes – thus ensuring ongoing compliance with the provisions for vehicle access contained in Planning for Bushfire Protection.

71 Mr. Ekermawi, in his submissions, made it clear that he wished to have an asset protection zone to the north, east and west of 100 m – not only because he considered that, contrary to Mr. Britt's evidence, there would be greater bushfire protection for occupants of the railway carriage but also because he wished to be able to clear this area for the purposes of planting fruit trees and other vegetation including, if required, additional koala food trees. He also indicated that he wished to use what he described as an existing return track (that commenced in a direction toward the north from the railway carriage and, at some point between its commencement and the northern boundary of Lot 201, turned to go back to the entrance gateway of Lot 201) in preference to constructing a turning facility within the asset protection zone.

72 The first time that Mr. Ekermawi raised the question of this north leading internal track was during the course of his submissions. This track was not inspected during the course of the site visit nor was Mr. Britt provided any opportunity to make an assessment of its appropriateness as to surface; vertical clearance from vegetation; appropriateness of widths; or availability of acceptable locations for passing bays. As a consequence, even assuming that there would be no ecological impact of such an alternative egress route, I have no evidentiary basis upon which I could be satisfied that it would be appropriate in bushfire protection terms. However, this finding would not preclude a modification application being made and assessed pursuant to s 96 of the Act, after development consent was given, to permit use of this track if such use were appropriate.

73 As a consequence, there is no basis upon which I could conclude that Mr. Ekermawi's northern track could be used instead of a proper turning arrangement in the vicinity of the railway carriage. In addition, given the evidence of Mr. Britt that there is no need for (and would be no additional fire protection benefit obtained by permitting) the clearing of a 100 m asset protection zone – when coupled with the ecological uncertainty that would arise in those circumstances – there is also no basis upon which I could grant consent for the clearance of any asset protection zone beyond the minimum size necessary for protection of the occupants of the railway carriage.

74 Therefore, I am satisfied that, if there is to be a development consent issued, it can only be on the basis of the minimum asset protection zone with that asset protection zone incorporating a turning facility for fire fighting vehicles. Any conditions of consent and the properly prepared site plan are to provide for this.

Ecological issues

75 By far the most complex matters requiring consideration in these proceedings are the possible ecological impacts of the proposed developments on Lot 201. These are arise not only with respect to the potential or actual presence of a number of threatened species on Lot 201 but also concerning the SEPP 14 wetlands mapped to the south of the railway carriage and the existence of a number of koala food trees identified as being present on Lot 201 – thus requiring consideration pursuant to State Environmental Planning Policy 44 Koala Habitat Protection (SEPP 44).

76 There are, as a consequence, three ecological issues arising for consideration in these proceedings. They concern possible impacts on the Asperula; the Wallum Froglet; and removal of fauna habitat as a consequence of clearing for the asset protection zone. With respect to all three issues, two questions require consideration. The first is whether there is adequate information to enable me to make a determination with respect to the issue and, second, if I can proceed to do so, at what protective measures should be required in each instance.

77 The further question of what, if any, consideration should be given to potential koala habitat on the land arises, Mr Bell said, in the context of SEPP 44 and the identification of Scribbly Gum and Swamp Mahogany trees on Lot 201, these trees being identified koala food trees. Mr Bell proposed that, on a precautionary basis, regard should be had to the koala habitat potential of the land.

78 It is convenient to dispose of the question of koala habitat before turning to the more substantive ecological issues. The first step that is required by the provisions of SEPP 44 arises from answering the question posed by cl 7 of the instrument, a clause that is in the following terms:

Step 1—Is the land potential koala habitat?

(1) Before a council may grant consent to an application for consent to carry out development on land to which this Part applies, it must satisfy itself whether or not the land is a potential koala habitat.

(2) A council may satisfy itself as to whether or not land is a potential koala habitat only on information obtained by it, or by the applicant, from a person who is qualified and experienced in tree identification.

(3) If the council is satisfied:

(a) that the land is not a potential koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or
(b) that the land is a potential koala habitat, it must comply with clause 8.

79 This question can only be answered by having regard to the definition of potential koala habitat contained in cl 4 of SEPP 44. The definition is in the following terms:

potential koala habitat means areas of native vegetation where the trees of the types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component.

80 If that provision is satisfied, as it is, it is then necessary to consider the question posed by cl 8 of the instrument, a clause that is in the following terms:

Step 2—Is the land core koala habitat?

(1) Before a council may grant consent to an application for consent to carry out development on land to which this Part applies that it is satisfied is a potential koala habitat, it must satisfy itself whether or not the land is a core koala habitat.

(2) A council may satisfy itself as to whether or not land is a core koala habitat only on information obtained by it, or by the applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management.

(3) If the council is satisfied:

(a) that the land is not a core koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or
(b) that the land is a core koala habitat, it must comply with clause 9.

81 This question can only be answered by having regard to the definition of core koala habitat contained in cl 4 of SEPP 44. The definition is in the following terms:

core koala habitat means an area of land with a resident population of koalas, evidenced by attributes such as breeding females (that is, females with young) and recent sightings of and historical records of a population.

82 However, none of the threshold elements identified by the definition of core koala habitat apply to Lot 201 (whether or not Lot 201 is potential koala habitat – as it would appear to be). This proposition is not in dispute. As a consequence, cl 8(3)(a) is satisfied and the protective regime of SEPP 44 is not engaged.

83 As to the suggestion by Mr Bell that I should go beyond the terms of the instrument by taking a precautionary approach, I am satisfied that the imposition of a condition, accepted by Mr Ekermawi, that there should be no removal or pruning of Scribbly Gum or Swamp Mahogany trees during the establishment of the asset protection zone around the railway carriage is a sufficient precautionary measure. I also note, although it is not a matter necessary to be incorporated in the conditions of consent, that Mr Ekermawi indicated that he was prepared to plant additional specimens of both Scribbly Gum or Swamp Mahogany trees if this were desirable.

84 I now turn to the issue of the Asperula. Asperula, on the evidence of Mr Bell, is likely to be found on the sloping banks leading down to the SEPP 14 wetland and Swamp Mahogany forest. This vegetation pattern comprises a significant portion of Lot 201 and separates the more open forested areas where the railway carriage is located from the mangrove areas closer to the river boundary of the allotment.

85 Although Lot 201 has a legal frontage to the river, the usable area on approximately the northern half of the allotment (including the area where the railway carriage is located and proposed to be used as a dwelling), is separated from the river by two distinct vegetation associations. The first is the river fringing mangrove forest and the second is the Swamp Mahogany forest in the wetlands that have been mapped and brought under the protective umbrella as SEPP 14 wetlands.

86 The specimen of Asperula that was identified in the ecological studies undertaken on Mr Ekermawi's behalf was one that was identified by a survey undertaken by Eco Logical in April 2009. This study appears to have been confined to the area in the immediate vicinity of the railway carriage and has been taken into account in the identification of the more limited asset protection zone to the south of the railway carriage. A more recent ecological study undertaken by Mr Mamott on behalf of Mr Ekermawi has not identified any further locations for Asperula. The further ecological study, did, however, deal with the statutory tests posed by s 5 of the EPA Act. As a consequence of addressing those questions, Mr Mamott’s report concluded that there would be no unacceptable impact on Asperula.

87 It was Mr Bell’s evidence that the appropriate time of the year to undertake what he considered to be the necessary and proper study into the occurrence of Asperula on the site would require a survey to be undertaken between the months of October and January rather than during the limited and out of season time, April, when the Eco Logical study was undertaken.

88 The Eco Logical study showed the division of the vegetation zones on Lot 201 in a schematic fashion, not one subject to precise survey identification but sufficient for an understanding of the landform arrangements. However, it was also obvious from the site view that the boundary between the Swamp Mahogany forest and SEPP 14 wetlands, on one hand, and the more open forested areas, on the other hand, was readily visually identifiable. During the course of his evidence, Mr Bell was asked whether it would not be reasonable to conclude that a human, vehicle and stock proof fence – set back an appropriate distance into the open forested area from the boundary of the wetland area – would provide appropriate protection for any likely occurrences of Asperula on Lot 201. Mr Bell conceded that if there were to be a stock, vehicle and human movement preventing fence appropriately set back from the upper edge of the slope leading into the Swamp Mahogany forest and SEPP 14 wetland areas, on the balance of probabilities, that would provide appropriate protection to the known habitat of Asperula and of any additional specimens of it that might presently be located on the property.

89 Although the reasoning in the s 5 analysis by Mr Mamott is what might be described as laconic, it is nonetheless comprehensible on the basis of the information contained in the Eco Logical report and also from what was discussed by Mr Bell as the likely habitat of Asperula. Given this habitat definition and the fact that, although if there were to be a further survey at the more appropriate time, any further examples of Asperula are virtually certain to be found in within the habitat area earlier described, I am not satisfied that, provided appropriate protective measures are taken with respect to the defined habitat area, there is any need to undertake any further study.

90 Although Mr Ekermawi offered to propagate and re-plant specimens of Asperula within its habitat, I have no evidence as to whether or not such propagation would be possible and what the likelihood would be of any planting programme being successful. As a consequence, I am satisfied that I do not need to consider this offer and, certainly, should not impose any condition of this nature.

91 The Eco Logical report, although only schematically depictive, in its Figure 3, of the division of the various types of landform on Lot 201 between the open forest; the Swamp Mahogany forest and SEPP 14 wetlands; and the mangrove areas, nonetheless depicted, graphically, where the boundary of them might be and where a line representing a 30 m setback from them that boundary of the SEPP 14 wetlands (this mapped boundary being modestly more generous and protective than Eco Logical’s boundary drawn from its field survey). As a consequence, I am satisfied that a condition requiring the erection of an appropriate fence along the portion of the black line adjacent to the SEPP 14 wetlands as shown on the Eco Logical schematic, reproduced below, will provide appropriate protection for the habitat of Asperula.

Figure 8

92 I am satisfied, on balance, that this represents an appropriate and precautionary approach. Such a fence, as I indicated might be appropriate during the hearing, should be of two barbed wire and three plain wire strands. In an appropriate condition specifying the nature of this fence is to be drafted by the council for incorporation in the conditions that would attach to the consent that may arise from these proceedings.

93 As the council’s proposed condition requiring the delineation of the asset protection zone would require, on my calculation, not more than 8 to 10 markers and as it was agreed that such markers could comprise star pickets painted white, Mr Ekermawi indicated that he was prepared to accent such a condition although he originally contested the appropriateness of it.

94 A similar position applies concerning the Wallum Froglet. The Eco Logical report noted that two separate sound observations were made of occurrences of the Wallum Froglet calling from within the Swamp Mahogany forest. The Eco Logical report did not identify the precise locations where these callings were heard or the location within the Swamp Mahogany forest from whence the callings appear to originate. As a consequence, although it is reasonable to conclude, from the scope of the report prepared by Eco Logical, that these frogs were in the Swamp Mahogany forest somewhere in the general vicinity of the railway carriage as this was the focus of their investigation, such a conclusion is not an appropriate one upon which to base any conditions of consent.

95 Again, although Mr Mamott did the statutory analysis required by s 5 of the EPA Act, this analysis, also, was of the abbreviated nature described earlier concerning Asperula. As a consequence, whilst it is satisfactory in form for meeting the requirements of the EPA Act, its substance is also a little sparse for this purpose.

96 However, Mr Bell also gave extensive oral evidence concerning the Wallum Froglet. It was his evidence that the principal habitat for the Wallum Froglet was the Swamp Mahogany forest. He expressed concern that, in periods of diminished rainfall or drought, it was possible that the Wallum Froglet might seek to follow the areas where there might be some moist deposition of leaves and other plant detritus on the ground that could provide habitat under such circumstances. He postulated that such transitory habitat use or migration to find such habitat might be outside the bounds of the identified Swamp Mahogany forest in the SEPP 14 wetlands. He did concede, as with Asperula, that a fencing regimes such as that discussed earlier, wood, on the balance of probabilities, provide an appropriate habitat protection for the Wallum Froglet.

97 I have concluded that such a protective fencing regime being installed prior to the issuing of an occupation certificate to Mr Ekermawi for any development that may, eventually, receive development consent, is an appropriate response to protection of the Wallum Froglet as well as to protection of Asperula. I reached this conclusion for three reasons:

• first, although brief, such a conclusion is consistent with the s 5 analysis undertaken by Mr Mamott;
• second, Mr Bell conceded that such a protection barrier would, on the balance of probabilities, provide sufficient protection to the habitat of the Wallum Froglet; and
• finally, in times of drought or diminished rainfall, the boundaries of the moist areas of the Swamp Mahogany forest and SEPP 14 wetlands will, if anything, contract in a direction away from the open forested areas of Lot 201 (within which human activity will be confined as a consequence of the protective fence being required).

98 The final ecological manner that requires consideration is the potential impact on birds and arboreal mammals by the removal of a number of trees and some associated canopy thinning for the purposes of establishment of the restricted asset protection zone that I have concluded, earlier, is appropriate.

99 In this regard, Mr Bell agreed that, if there were a condition that prohibited the removal of any Swamp Mahogany trees; Scribbly Gum trees; and any other trees that contain hollows that are potential bird or arboreal mammal habitats, such tree removal – confined within the bounds of the smaller asset protection zone and provided that the operation to establish the asset protection zone were appropriately supervised and any canopy pruning work carried out in a fashion consistent with AS 4373 of 2007 – for such an asset protection zone establishment would be acceptable. As a consequence, as dealt with later in my consideration of the council’s without prejudice conditions of consent (16), I am satisfied that this is an appropriately and sufficient requirement for the establishment of this asset protection zone.

100 As a consequence of the conclusion that I have reached on these three matters, I am satisfied that there are no ecological issues within Lot 201 that would include the granting of development consent for the works within that allotment provided the various protective measures and conditions earlier described are required and implemented.

Conditions of consent

101 It remains, therefore, necessary to consider the various without prejudice conditions of consent proposed by the council (to be applied if I were to have concluded, as I have done, that development consent could be granted for works within Lot 201). The conditions, originally prepared by the council against such an eventuality, were based on an assumption that these proceedings would deal with the question of whether or not works should be approved to the access track between the end of the formed section of Minimbah Road and the entrance to Lot 201. As a consequence, several conditions were drafted by the council dealing with possible works outside the confines of Lot 201. These conditions are no longer required as the matter of works that will be required to the two portions of the access track are to be dealt with by a deferred commencement condition as earlier discussed.

102 I therefore set out, below, in tabular form, the various elements of the proposed conditions of consent. Where a condition has been agreed, I have merely noted the topic of the condition and the fact that there is agreement between the council and Mr Ekermawi as to its terms.

No	Condition	Mr Ekermawi’s position	Determination
1	FURTHER FLORA & FAUNA SURVEYS	Opposed – not necessary as reports already provided	Not required for reasons dealt with in earlier part of decision
2	DELETED
3	DELETED
4	PLANS	Mr Fish’s plans are adequate	See earlier section requiring new plans for reasons given.
5	CONSTRUCTION CERTIFICATE	Not needed	Required – statutory requirement
6	MOVEABLE DWELLING APPLICATION	Accepted
7.1(A)	S 88B INSTRUMENT RE LIMITS OF DEVELOPMENT	Opposed – unnecessary and too costly	Not required as protective fence defined earlier in decision provides protection for reasons dealt with in earlier part of decision
7.1(B)	S 88B INSTRUMENT RE KEEPING OF CATS AND DOGS	Opposed	Entirely appropriate as a statutory basis for providing protection to native fauna
7.1(C)	S 88B INSTRUMENT RE PROHIBITION OF ACTIVITIES IN SWAMP SLEROPHYLL FOREST	Opposed	S 88B instrument not appropriate – matters in condition 7.1(C) other than (v), (vii), (ix), (x) are not appropriate for generalised conditions of consent as too broad and/or contrary to other elements of this decision. Paragraphs (v), (vii), (ix), (x) may be imposed as conditions of consent. Some activities may require separate consent before being carried out and that is a matter for the council.
7.2	RIGHTS OF ENTRY ETC	Opposed	Rejected as properly Class 4 or other enforcement process
7.3	DEFINES S 88B PARTIES	Opposed	Accepted as necessary for 7.1(B) only
7.4	REQUIREMENT FOR REGISTRATION	Opposed	Accepted as necessary for 7.1(B) only
8	DELETED
9	DELETED
10	ASSET PROTECTION ZONE	Accepted on 100m basis	Asset protection zone to be smaller one as discussed earlier
11	ACCESS TRACK	Objected to last sentence as relates to track outside Lot 201.	Last sentence deleted as the track outside Lot 201 is not the subject of the application.
12	FIRE PROTECTION MEASURES	Accepted
13	APPLICATION FOR ON-SITE EFFLUENT SYSTEM	Accepted
14	APPROVAL TO OPERATE ON-SITE EFFLUENT SYSTEM	Accepted
15	BCA COMPLIANCE	Limited acceptance	Required – statutory requirement
16	CLEARING OF APZ	Opposed as existing reports are adequate	Limited acceptance confined to requirement that clearing for APZ to be undertaken under supervision of AQF Level 3 arborist who is to provide a report to council on completion of works. Otherwise, prohibition on any removal of any Swamp Mahogany trees; Scribbly Gum trees; and any other trees that contain hollows that are potential bird or arboreal mammal habitats as an express condition is appropriate.
17	BOUNDARY MARKING OF APZ	Opposed	Accepted as number of markers (as earlier discussed) is small and can be done with white painted star pickets
18	STRUCTURAL DRAWINGS	Not required as no structural works are to be undertaken	The plans for the proposed awning over the railway carriage will also need to include proper structural engineering plans for the awning as well as proper engineering specifications for the footings. As Mr Ekermawi informed me that he did not propose to have any concrete slab floor for this awning but merely to rely on the natural ground, no slab specification is necessary.
19	WASTE MANAGEMENT PLANS	Not required as no building construction creating waste and household wastes can utilise council’s collection service.	Mr Mallik informed me that the council envisaged that there would be two waste management plans, one to deal with the waste generated during the construction phase and the other to deal with the disposal of waste from occupation of the railway carriage. The requirement for a construction waste management plan is appropriate and should be reflected in condition 19. However, as the access track from the end of Minimbah Road to the entrance of Lot 201, when established to the standard required by Planning for Bush Fire Protection will not be able to be used by the council's waste contractor, the conditions of consent need to provide an appropriate regime for the disposal of waste generated by occupancy of the railway carriage. In my opinion, it is sufficient for a new condition to provide that all wastes proposed to be disposed of through council’s waste collection system, generated by occupancy railway carriage, are required to do so by using council provided, approved waste collection receptacles to be placed at the end of the formed section of Minimbah Road for collection by council’s waste management contractor.
20	DISPOSAL OF STORMWATER	Partial acceptance	Accepted in full as provision for overflow necessary to ensure protection of SEPP 14 wetlands
21	DAMAGE BOND FOR COUNCIL ASSETS	Opposed	Not accepted – this issue may more properly be dealt with in any application to construct works in either road reserve
22	HOME BUILDING INSURANCE	Accepted
23	SITE SIGN	Accepted
24	SOIL EROSION CONTROL	Opposed	Not accepted in this form given the limited nature of the works in this application – limited condition appropriate as follows: Runoff detention and sedimentation measures are to be implemented to prevent topsoil, sand or other sediment entering the SEPP 14 wetlands during construction. The location and nature of the runoff detention and sedimentation measures are to be shown on the Construction Certificate plans. However, this issue may require to be dealt with in an expanded form in any application to construct works in either road reserve
25	COMPLIANCE INSPECTIONS	Accepted
26	TREE REMOVAL	Accepted
27	LOG RETENTION	Accepted in agreed modified form
28	CLEARING	Accepted in agreed modified form
29	USE OF CLEARED VEGETATION	Accepted in agreed modified form
30	MACHINE WASHDOWN	Accepted
31	APZ CLEARING	-------------	Now covered by (16) and is not necessary
32	LANDSCAPING	Accepted
33	UTILITIES	Accepted within what is now the agreed scope of the application

Conclusion

103 Mr. Mallik submitted that I should conclude that, although there may be a presumption that Lot 201 can be used for the purposes of dwelling, the presumption is not absolute and, as discussed by McClellan CJ in BGP Properties v Lake Macquarie Council [2004] NSWLEC 399 at para 117 and following, such a presumption may be set aside as a consequence of insurmountable environmental constraints. However, given the conclusion that I have reached with respect to the proposed works on Lot 201, it is unnecessary to deal, further, with this proposition.

104 I have concluded that, subject to the basic requirement that Mr. Ekermawi file and serve properly dimensioned and scaled plans, including elevations, in substitution for the plans shown above, there is no basis, subject to the revisions of the conditions also discussed earlier, why Mr. Ekermawi should not be given development consent for the proposed work on Lot 201.

105 However, such development consent is also to be subject to a deferred commencement condition requiring that such upgrading works as may be required to the unconstructed portion of Minimbah Road and within the Crown Road reserve to meet the requirements of Planning for Bushfire Protection shall have been undertaken to the satisfaction of the council before any consent from these proceedings becomes operative (to ensure that the access track meets the necessary standards of Planning for Bushfire Protection).

106 Whilst there may well be formidable and, possibly, insurmountable hurdles to obtaining such approval to upgrade the access track between the end of Minimbah Road and the entrance to Lot 201, that is not a matter upon which it is appropriate for me to speculate. It is sufficient, for the purposes of this decision, to note that the joint expert reports of the ecological and bushfire experts separately indicated that further extensive expert examination would be necessary as part of any application for approval for such works.

107 However, that is a matter for consideration by the council (as consent authority for both elements of the access track) and for the Department of Lands (for the purposes of owner’s consent for the portion of the access track that is the un-formed Crown Road reserve).

108 As a consequence, although I have concluded that Mr. Ekermawi should be granted development consent (provided acceptable and properly drawn plans are provided and revised conditions of consent to reflect this decision are filed electronically and in hard copy), I cannot make orders until I have received those compliant plans.

109 I therefore propose to adjourn the proceedings for six weeks to enable Mr. Ekermawi to have prepared satisfactory and compliant plans and to submit them to the council and, thereafter, for the council to prepare conditions specifying those plans and incorporating the deferred commencement and operational condition changes that are necessary as a consequence of this decision.

110 I therefore give the following directions:

1. Mr. Ekermawi is to serve on the council and file with the Court, by 4.30pm on Friday 1 October:
   • a properly scaled and dimensioned version of the “plan” reproduced at Figure 6 above with the plan to have a correctly marked north point on it;
   • properly scaled and dimensioned versions of the elevations “plan” at Figure 5 above with the elevations plan to include elevations from all four aspects of the proposed structure to be shown on them; and
   • a properly prepared and dimensioned version of Figure 8 above with correctly marked north point on it;
2. If Mr. Ekermawi satisfies (1), the council is to file, electronically by e-mail to the Court and in hard copy, and serve on Mr Ekermawi, by 4.30pm on Friday 15 October, conditions of consent referencing the revised plans provided pursuant to (1) and otherwise reflecting the terms of this decision;
3. If there is any dispute between the parties about the adequacy of any plans filed and served by Mr Ekermawi pursuant to (1), the parties may re-list the matter before me with such re-listing to be on two day's notice;
4. If there is any dispute between the parties about the drafting of the conditions in (2), the parties may re-list the matter before me for further submissions on the wording of the conditions (but not on the substance of the conditions) with such re-listing to be on two day's notice;
5. Mr. Ekermawi has liberty, on two days notice (if and only if such notice is given prior to 4.30pm on Monday 20 September), to have the matter re-listed before me should he wish to seek an extension of time for compliance with (1);
6. The matter is listed for further mention before me at 9 AM on Wednesday 20 October at 225 Macquarie Street, Sydney;
7. If (1) and (2) are complied with and no application to re-list is made pursuant to (3), (4) or (5), I will make orders in chambers and vacate the mention before me set in (6); and
8. If Mr. Ekermawi does not satisfy (1) by filing the plans required by that direction or is not granted, pursuant to (4), an extension of time within which to comply with (1), the appeal will be dismissed without further hearing.

Tim Moore
Senior Commissioner

24/08/2010 - Spelling correction - Paragraph(s) Cover sheet