Elachi v Shoalhaven City Council - [2014] NSWLEC 1126

Land and Environment Court

New South Wales

Medium Neutral Citation: Elachi v Shoalhaven City Council [2014] NSWLEC 1126
Hearing dates: 8-9 April 2014
Decision date: 27 June 2014
Jurisdiction: Class 1
Before: Fakes C
Decision:
The appeal is dismissed.

Catchwords: DEVELOPMENT APPLICATION: 1964 holding; Bangalay Sand Forest EEC; Is an SIS required
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Rural Fires Act 1997
Threatened Species Conservation Act 1995
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy No. 71
Jervis Bay Regional Environmental Plan1996
Shoalhaven Local Environmental Plan 1985
Cases Cited: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 79
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48
Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8
Category: Principal judgment
Parties: Charbel Elachi (Applicant)
Shoalhaven City Council (Respondent)
Representation: Applicant: Mr G Gleeson (Solicitor)
Respondent: Mr A Seton (Solicitor)
Applicant: RMB Lawyers with Morton & Harris
Respondent: Marsdens Law Group

File Number(s): 11039 of 2013

Judgment

COMMISSIONER: Callala Beach is a small settlement on Jervis Bay about 20 km from Nowra. Like many other villages and towns along the south coast, it is a pocket of residential development carved out of the bush. Along the northern end of Callala Beach is a strip of heavily vegetated remnant bushland between the dunes and Griffin Street.

Significantly, the majority of the remnant vegetation is identified and mapped as Bangalay Sand Forest (BSF). In 2005, the Scientific Committee established under the Threatened Species Conservation Act 1995 (TSC Act) made a Final Determination and listed BSF as an Endangered Ecological Community (EEC).

Most of this remnant strip is owned by Shoalhaven City Council however three lots have been in private ownership since about 1923.

The present owner of those lots has lodged a development application with Shoalhaven City Council seeking permission to construct a two-storey dwelling and ancillary structures including a double garage, pool and cabana. The proposed development also includes associated earthworks, landscaping, construction of a driveway, stormwater and drainage infrastructure, fencing and the clearing of vegetation, in particular BSF EEC.

As the statutory period for assessment of the development application has lapsed, the applicant appeals Shoalhaven City Council's deemed refusal of Development Application DA 13/1500 for the proposed works under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act).

The site and its locality

The site comprises Lots 3, 4 and 13, Section 13, DP 9063 Griffin Street, Callala Beach. The three adjoining lots are rectangular in shape and have a total area of 3,142.6m2. Lots 3 and 4 front Griffin Street; Lot 13 adjoins the southern boundary of Lot 4 and fronts an un-made council road known as Marine Parade. Marine Parade is a "paper" road and is proposed to be formally closed. The dunes and beach are beyond Marine Parade to the south.

Lots 3 and 4 have a combined width of 40m; Lots 4 and 13 have a total length of 104 - 108m.

There are no structures or services on the site; as stated above, it is heavily vegetated and relatively undisturbed. The site is generally flat and the soil is sandy. It is classified as Bushfire Prone land - Category One vegetation.

The locality is characterised by single residential dwellings of a range of styles, ages and materials. Many dwellings are holiday homes.

A subdivision called Benton Sands, comprising 85 residential lots, is being progressively developed on the northern side of Griffin Street. The site is opposite the Benton Sands subdivision.

The only developments within the bushland on the southern side of Griffin Street are the Rural Fire Service shed on the eastern end of Greenway Road at the far western end of the bushland reserve (about 400 -500m from the site), and a sewerage pumping station about 110m to the east of the site. Neither of these community facilities is permanently staffed.

Relevant background and planning controls

Background

Although the council raised some objections as to relevance, some historical background to the planning controls applying to the site is useful.

According to the applicant's Statement of Facts and Contentions in Reply, the locality described as "Callala Beach Village" was created in about 1923 by the registration of DP 9063. Port Stephens Development Pty Ltd was the original developer. Cadastral plans for the area show the land to the south of Griffin Street divided into many residential allotments with a number of proposed cross streets between Griffin Street and proposed Marine Parade. The early plans also show a very extensive subdivision to the north and east of the site.

Up until the making of Interim Development Order (IDO) No. 1, in February 1964, dwelling houses were permissible on land situated in DP 9063 without the need to obtain development consent. Under IDO No. 1, the site was zoned Non-Urban (a) and dwelling houses were a permissible use subject to consent from council (cl.15 IDO).

Shoalhaven Local Environmental Plan 1985 (SLEP) was gazetted in August 1985. However, the site (and other land within DP 9063) retained its zoning under IDO No. 1 and the IDO continued to be the instrument regulating development on the land.

In about 1994, Port Stephens Development approached the council with a proposal to develop some of the land owned by them in DP 9063 for the purpose of an urban subdivision - the Benton Sands Proposal. This required an application by council to the Director of Planning for a rezoning of the land so as to permit further development for residential purposes.

In August 1994, the council entered into a Deed (the Deed) with Port Stephens Developments setting out the parties' obligations to give effect to the Benton Sands proposal.

In December 1995, SLEP 1985 amendment No 77 was gazetted and the site and other land in DP 9063 was rezoned as 7(f3) (Environmental protection "F3" (Foreshores Protection) Zone).

Clause 6.1(a) of the Deed states, "Immediately upon gazettal of the Amending LEP the Council shall proceed to resume lots 3, 4, and 13 [the site] Section 13 DP 9063...". The land was then to be dedicated as Public Reserve. However, the council did not resume the land.

Between 1964 and 2010, the council continued to levy rates on the site. In 2010, the council identified properties that had outstanding rates unpaid for more than 5 years. The site was subsequently sold at auction as a single parcel. While council elected to bid at the auction, there was limited delegation as to the amount it could pay. The applicant was the successful bidder.

The proposal

As stated above, the proposed development is the construction of a four bedroom, two-storey dwelling with a detached single storey double garage, lap pool and associated cabana. In order to meet the requirements for construction in a flame zone, the dwelling and garage will be constructed concrete, steel and fibre cement. The front fence is proposed to be 1.8m high, part steel, part masonry fence, which can be secured.

As required by s 79BA of the EPA Act, concurrence is required from the Rural Fire Service (RFS). The proposed dwelling is located within the Flame Zone on its eastern, western and southern elevations; the setback from the fire threat from the east and west is 5.1m. The applicant's consultant, Eco Logical Australia Pty Ltd (ELA) calculated the required asset protection zone (APZ) under Planning for Bush Fire Protection 2006 (PBFP) to be 20m to the east, south and west.

The RFS raised a number of concerns regarding insufficient defendable space and the absence of an escape route for occupants or fire fighters. However, ELA subsequently advised that the 5.1m setback was sufficiently wide to meet the performance criteria for a defendable space and escape routes under Planning for Bush Fire Protection 2006 (PBFP). In ELA's opinion, the direct access to Griffin Street and fire hydrants, and the protection afforded by the proposed 1.8m non-combustible fencing would provide adequate safety for occupants and fire fighters.

On 22 August 2013, the RFS advised council of recommended conditions that should be imposed. These include:

At the commencement of building works and in perpetuity, the entire property shall be managed as an inner protection zone in accordance with s 4.1.3 and Appendix 5 PBFP and the NSW RFS' 'Standards for asset protection zones';
An unobstructed defendable space be provided around the building;
Water, electricity and gas services to comply with s 4.1.3 PBFP;
Specific construction materials and standards for the dwelling to withstand BAL FZ (Bush fire attack level flame zone) and the garage part BAL 40 part BAL FZ;
A minimum 1.8m high radiant heat shield of non-combustible materials shall be constructed along the eastern, western and southern boundaries adjacent to the hazard. All posts and rails to be steel. The bottom of the fence is to be in direct contact with the finished ground level or plinth;
Landscaping to comply with principles in Appendix 5 PBFP.

The RFS letter to council also states:

The Service recognises that the site is constrained and that the proposed development falls within the Flame Zone. Flame Zone development is high risk development; consequently, in situations such as this, the service seeks to improve the overall fire safety of the site. This requires greater emphasis on construction standards, landscaping, siting, and vegetation management practices to ensure improved levels of protection are afforded to the development, its occupants and fire fighters. The Service has undertaken a merit based assessment of the proposal and provides the above advice in accordance with 'Planning for Bush Fire Protection 2006'.

Where new buildings in infill/bushland interface locations are constructed to the appropriate standard set out under 'Planning for Bush Fire Protection 2006', the NSW Rural Fire Service is unlikely to uphold a bush fire hazard complaint in relation to adjacent bushland reserves.

In subsequent correspondence, the RFS agreed the fence on the southern end of Lot 13 was not proposed and a 20m APZ to the southern elevation was satisfactory.

Therefore, the proposal includes the removal of all vegetation from the full width of the site and for a distance of 20m from the southern elevation.

In regards to sewage disposal, the applicant proposes to connect to the sewerage pumping station to the east through a buried pipe to be installed in the road reserve along the southern side of Griffin Street.

The issues

Council contends that the development should be refused on the following grounds:

Unacceptable adverse impacts on the ecological values of the Bangalay Sand Forest EEC on the site;
Inconsistency with the objectives of Zone 7(f3) Environmental Protection "F3" (Foreshores Protection) zone under SLEP 1985 and the objectives of the E3 Environmental Management zone under draft SLEP 2013.
Inconsistency with the purpose and rationale of the minimum lat size requirements for the erection of a dwelling house in cl 15 of SLEP 1985 and cl 4.2D in Draft SLEP 2013.
Inconsistency with the NSW Coastal Policy and the objectives of cl. 5.5 Draft SLEP 2103.
Inconsistency with objectives and performance criteria section 2.6 Trees and Vegetation - SDCP 62 - Residential Development in Foreshore Areas.
Insufficient information to enable a proper assessment of the likely impacts of the proposal under s 5A of the EPA Act, in particular the impacts of clearing and therefore the need for a Species Impact Statement.

The hearing and evidence

The hearing commenced on site as a mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (the Court Act).

As is the usual practice, the Court heard from a number of local residents who had made written submissions objecting to the proposal. A number of residents of the Benton Sands Community Association made oral submissions, as did residents with particular interests and expertise in coastal processes, bush regeneration and ecology as well as members of the Callala Beach Progress Association. The key issues raised by the objectors are:

Potential impacts on the vegetated, ephemeral and highly vulnerable character of the coastal dune system and the risk of coastal erosion;
Any tracks from the site to the beach could exacerbate soil erosion;
Other potential impacts on groundwater arising from stormwater disposal and overflow of the pool;
Non-compliance with numerical and other controls in SDCP and SLEP in regards to front set back, disposal of stormwater and zone objectives;
The site and the surrounding bushland reserve has been regularly maintained for many years by the local Bush Care group and should be reserved for its ecological values, particularly given its status as an endangered ecological community;
The ecological sensitivity of the site; the proposal effectively cuts the reserve in two thus breaking the connectivity between the remaining portions and disrupting the visual amenity of the reserve;
The proposal has an area of impact larger than the actual dimensions of the lots; additional disturbance could encourage colonisation by weeds;
Concerns about the adequacy of the bush fire assessment, the description of the site being 'infill', the limited extent of defendable space, the increased risk to RFS personnel and the liability for bushfire protection that may passed on to the council and the RFS;
Failure to consider the objects of the Rural Fires Act 1997 - in particular protection of persons, protection of the environment; and regard to the principles of ecologically sustainable development;
When the area was initially subdivided (as a paper subdivision), and when the site was designated a 1964 allotment, the Bangalay Sand Forest EEC was not proposed nor was bush fire protection envisaged;
The Court should take a precautionary approach in regards to the EEC and the bushfire issues and refuse the proposal;
The impact of the proposed fencing on the visual amenity of the area and the movement of wildlife; most dwellings in Benton Sands do not have front fences, the proposed masonry and steel fence is out of character;
The size, scale and appearance of the dwelling, especially given the need to comply with bushfire requirements, is an overdevelopment of the site and out of character with other nearby dwellings; and
Concerns about the adequacy and cursory nature of the flora and fauna assessment with inadequate assessment of the site itself.

After hearing from the residents, the site was inspected. The parties' ecologists, Mr Dominic Fanning (SLR Consulting) for the applicant and Ms Angela Jenkins (Threatened Species Officer, SCC) for council, identified and discussed a range of aspects of the EEC. During the site inspection a number of hollows were observed in a number of Banksias on the site.

As there was no agreement between the parties on any of the contentions, the conciliation was terminated pursuant to s 34AA(20(b) of the Court Act, and the matter proceeding immediately to a hearing at Nowra Court House.

Is a species impact statement required?

Mr Seton for the council contends that the applicant has failed to satisfy the relevant parts of s 5A of the EPA Act in regards to the significant impact on the Bangalay Sand Forest EEC. He maintains that the inadequacies in the methods used to undertake the assessment of significance and the limited extent of the area surveyed create such uncertainty that a Species Impact Statement should be prepared. As this is a threshold jurisdictional fact, the application must be refused. Mr Gleeson for the applicant relies on Mr Fanning's findings that the development will remove such a small proportion of the EEC there will be no significant impact on the local occurrence of BSF EEC.

Section 78A(8)(b) of the EPA Act requires that a development application must be accompanied by a SIS if the application is in respect of development on land that is "likely to significantly affect threatened species, populations or ecological communities, or their habitats". In Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8 Spigelman CJ at [94] found an SIS to be an "essential condition" and a "jurisdictional fact". In Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 at [81] Preston CJ expands on Timbarra and states in part: "The requirement is a jurisdictional fact; satisfaction of the requirement is an essential pre-requisite to granting consent to an application. If an SIS is required, but it has not been prepared, then consent cannot be granted".

In Newcastle, Preston CJ considers the matters relevant to s 78A(8)(b). At [82], "it is the development as it then stands that is to be evaluated for its likely impact on threatened species, populations or ecological communities or their habitats". At [83] the description of the development "can also include ameliorative measures to prevent, mitigate, remedy or offset impacts of the development. However, in order to be able to be considered in answering the inquiry of likely impact, the ameliorative measures must be proposed as part of the development application. Ameliorative measures not proposed as part of the development application, but which are imposed afterwards, as conditions of consent or restrictions in construction certificates, are not able to be answered in answering the inquiry as to likely impact." At [84] "the word "likely" means "a real chance or possibility" and "significantly" means "important", "notable", "weighty" or "more than ordinary". At [85] "the consent authority and the Court on appeal must take the factors in s 5A of the EPA Act into account and in particular the factors in the now seven part test in s 5A(2). However, the consent authority is not limited to consideration of these factors; there may be facts and circumstances relevant to the inquiry which are not specifically contained in any of the factors in the seven part test". At [86], "a positive answer to any one or more of the seven factors does not mandate an affirmative answer to the question of whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats but equally does not preclude a negative answer to the question".

In 2005, the Scientific Committee, established under the TSC Act, listed Bangalay Sand Forest as an Endangered Ecological Community. Section 12(2) of the TSC Act states:

(2) An ecological community is eligible to be listed as an endangered ecological community, if in the opinion of the Scientific Committee:

(a) it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations, and

(b) it is not eligible to be listed as a critically endangered ecological community.

Section 5A(1) of the EPA Act requires a number of matters be taken into consideration in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, as a consequence of development being assessed under a number of other sections of the Act including s 79C. The particular factors to be considered are listed in s 5A(2). S 5A(1)(b) also requires that any assessment guidelines, such as any issued under s 94A of the TSC Act must be taken into account.

Relevant to EEC's, s 5A(2) states:

(c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to be substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(d) in relation to the habitat of a threatened species, population or ecological community:

(i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and

(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality;

(g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.

Section 5A(3) relevantly states that in this section "assessment guidelines means assessment guidelines issued and in force under s 94A of the TSC Act.

The relevant guidelines (Exhibit 8) are the "Threatened species assessment guidelines: The assessment of significance" published in 2007 by the then Department of Environment and Climate Change (DECC). The guidelines define terms relevant to species, populations and ecological communities including - 'subject site', 'study area', 'direct impacts', 'indirect impacts', local population', 'local occurrence' 'composition', 'habitat' and 'risk of extinction'.

The guidelines state (p2. [5]):

The assessment of significance should not be considered a 'pass or fail' test but a system allowing applicants/proponents to undertake a qualitative analysis of the likely impacts, and ultimately, whether further assessment needs to be undertaken through a species impact statement. All factors must be considered and an overall conclusion must be drawn from all factors in combination. Where there is reasonable doubt regarding the likely impacts, or where detailed information is not available, a species impact statement should be prepared. Other issues not specifically addressed by the factors of assessment should be included and discussed in the broader impact assessment process, for example, in a review of environmental factors or an environmental impact statement.

The applicant engaged SLR Consulting to undertake a number of ecological studies (included in Exhibit A): a "Preliminary Ecological Constraints Report" (2012); an "Ecological Issues & Assessment Report" (August 2013); and a further "Supplementary Ecological Issues & Assessment Report" (November 2013). The last report was prepared to consider detailed comments by SCC.

Mr Fanning and Ms Jenkins prepared a joint report (Exhibit 6) and agree on the following matters: the proposal will necessitate removal of 73% of the vegetation on the site; as a result, the proposed development will have an adverse impact on, and poses a threat to, the ecological values of the Bangalay Sand Forest EEC on the site; there is a degree of natural variation in the vegetation on the site; the site is known to provide foraging habitat and is part of a local corridor for the movement of native fauna; the site may provide foraging and roosting habitat for a number of threatened fauna known to occur in the locality, however, no threatened fauna or flora species were detected on the site in surveys conducted by the applicant's environmental consultant.

The key areas of disagreement between the ecologists are:

The extent of the BSF EEC on site in the light of differing interpretations of the Scientific Committee's Final Determination of the vegetation types that may be included in or excluded from BSF EEC, specifically 'Littoral Sand Thicket';
The degree of fragmentation and loss of connectivity;
The likely extent of indirect impacts;
Adequacy of the biodiversity surveys undertaken by the applicant in regards to compliance with the DECC 2007 "Threatened species assessment guidelines" (the Guidelines), the extent of the survey area, possible impacts on threatened species such as the Eastern Pygmy Possum that could be present, consideration of threatening processes such as removal of hollow-bearing trees, and whether there is sufficient uncertainty in the significance of the impact that a Species Impact Statement is required.

Based on the evidence of the SLR reports and the joint report, in my view it is 'line ball' as to whether an SIS is required.

Consideration of s 5A(c)(i) requires an understanding of the extent of the EEC on the site and then the local occurrence. Mr Fanning considers the Final Determination includes Littoral Sand Thicket and Ms Jenkins says it doesn't. The relevance being that the southern portion of Lot 13, being the only portion of the site to be retained, is likely to comprise this community and a transition zone to BSF.

The Guidelines define 'local occurrence' as: "the ecological community that occurs within the study area [study area is defined as: "the subject site and any additional areas which are likely to be affected by the proposal, either directly or indirectly. The study area should extend as far as is necessary to take all potential impacts into account"]. However the local occurrence may include adjacent areas if the ecological community on the study area forms part of a larger contiguous area of that ecological community and the movement of individuals and exchange of genetic material across the boundary of the study area can be clearly demonstrated.

Clause 6 of the Scientific Committee's Final Determination states:

6. A number of vegetation surveys and mapping studies have been carried out across the range of Bangalay Sand Forest of the Sydney Basin and South East Corner bioregions. In the Sydney-South Coast region, this community includes 'Ecotonal Coastal Hind Dune Swamp Oak-Bangalay Shrub Forest' (ecosystem 27) excluding those stands that are dominated by Casuarina glauca and 'Coastal Sands Shrub/Fern Forest' (ecosystem 28) of Thomas et al. (2000); 'Littoral Thicket' (map unit 63) and part of 'Coastal Sand Forest' (map unit 64) of Tindall et al. (2004); 'Coastal Sand Bangalay-Blackbutt Forest' (map unit 25) of NPWS (2002); and 'Dry Dune Shrub Forest' of Keith and Bedward (1999). Bangalay Sand Forest of the Sydney Basin and South East Corner bioregions is included within the 'South Coast Sands Dry Sclerophyll Forests' vegetation class of Keith (2002, 2004). There may be additional or unmapped occurrences of Bangalay Sand Forest within and beyond these surveyed areas.

In the absence of the vegetation maps referred to in the Final Determination, the use of the semi-colon before 'Littoral Thicket' in the Final Determination means that 'Littoral Thicket' is included in Bangalay Sand Forest in the local bioregion. The exclusions refer to 'Ecotonal Coastal Hind Dune Swamp Oak-Bangalay Shrub Forest'. Therefore I agree with Mr Fanning that the BSF on Lot 13 extends somewhat further than Ms Jenkins estimates.

However, in my view, the flora surveys carried out by SLR provide no certainty as to the actual extent of BSF on the site. No transects or quadrats were undertaken; the survey comprised the usual desktop research and two random meander searches in June 2012 and March 2013, and for the Supplementary report, an additional orchid search in November 2013. The meanders occurred across the site and on nearby land including formed tracks between the beach and Griffin Street and along the Griffin Street road reserve. Apart from species lists, the reports contain no quantitative structural analysis of the composition of the flora across the site to substantiate the extent of the BSF. In making her own assessment of the flora, Ms Jenkins studied six plots over the site (up to 10m radius) and an additional 4 on nearby adjoining land that she considers would be subject to indirect impacts arising from the development. Elsewhere in her assessment of significance, Ms Jenkins states that council usually considers a buffer zone of 50m for most proposed developments adjoining EECs.

In regards to the 'local occurrence', Mr Fanning relies on the 'Endangered Ecological Community Mapping" undertaken by Alison Hunt & Associates for Shoalhaven City Council (final report dated January 2010) (the Hunt Report- attachment 3 to the joint report) showing the local occurrence of BSF EEC at Callala Beach to be about 10 ha. In his opinion the proposed development will only remove 2% of this patch of EEC. Therefore in his view, the loss is not unacceptable because the remainder of the EEC will be retained and remain undeveloped as a council reserve, and the adverse impact will be essentially confined to the site. Mr Fanning states that "even if the proportion of "local occurrence" of BSF EEC to be removed from the site is slightly greater than 2%, there is still no likelihood whatsoever of the "local occurrence" being "placed at risk of extinction" (emphasis added)".

Ms Jenkins refers to the limitations of the accuracy of the vegetation mapping in the Hunt Report. Given the combination of limited 'ground truthing' and the use of aerial photographs, that report acknowledges the broad nature of the assessment of the vegetation units which should be viewed as indicative of their extent and do not delineate between core and transition zones. The Callala Beach map shows a strip of Coastal Scrub behind the foredunes. In the light of this map and her own detailed investigation of the flora on the site (attachment 5 to the joint report), Ms Jenkins is of the opinion that the transition to BSF occurs further into Lot 13 and is less extensive on the site than assumed by Mr Fanning.

The ecologists agree that 73% of the BSF on the site will be removed. I am satisfied that the local occurrence includes the council owned land to the east and west of the site and probably amounts to about 10ha. However, I agree with Ms Jenkins that the SLR reports have not properly considered the likely indirect impacts on the local occurrence as required by the guidelines. Indeed, Mr Fanning's opinion of the guidelines is quite dismissive. In regards to the Guidelines, Mr Fanning states that these are simply guidelines and not statutory standards. In my opinion, Mr Fanning is wrong in this as s 5A(1)(b) and s 5A(3) unequivocally call up the consideration of any guidelines as something that must be considered. In his view, sufficient information has been provided to council that took account of the guidelines and that council's requirements are excessive and onerous in the circumstances of the proposed development for a single residence.

In regards to possible indirect impacts, paragraph 9 of the Final Determination states:

9. Bangalay Sand Forest of the Sydney Basin and South East Corner bioregions is threatened by land clearing; degradation and disturbance associated with heavy recreational use; frequent burning; rubbish dumping; and weed invasion. These threats are generally associated with existing and proposed urban development along the coast. However, areas of Bangalay Sand Forest within conservation reserves, including Royal, Seven Mile Beach, Conjola, Meroo, Murramarang, Eurobodalla and Biamanga National Parks, are exposed to degradation by visitor overuse due to their proximity to popular beaches and camping areas.

With respect to potential edge and indirect effects, Mr Fanning agreed with Mr Seton that he had not undertaken any work on edge effects in residential areas. However, he stated that potential impacts from noise, light spill and pedestrian access could be mitigated by the imposition of conditions and restrictions as to user. While I agree with Ms Jenkins opinion that there are likely to be indirect impacts on the local occurrence beyond the immediate boundaries of the site, as described above, and notwithstanding SLR's poor assessment process, I find that in answer to s 5A(2)(c)(i), the proposal is unlikely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction.

In regards to s 5A(2)(c)(ii) and the modification of its composition, on the evidence of the ecologists and the observations made on the site inspections, the development is concentrated close to Griffin Street. This part of the site includes the tallest Bangalays and a number of mature Banksia. The southern portion of Lot 13 to be retained comprises smaller trees and structural differences in the composition of the community. Therefore while the proposal will undoubtedly substantially and adversely modify the composition of the EEC on the site, I find that that the proposal is unlikely to substantially and adversely modify the composition of the EEC such that its local occurrence is placed at extinction.

Section 5A(2)(d) considers habitat and fragmentation. SLR conducted a number of fauna surveys. The 2013 Ecological Issues and Assessment Report relies on data from desktop research and two site visits to "ground-truth" the results from the desktop search. Although the desktop search revealed 27 listed species within the standard 10km radius, the report states that no nocturnal investigations or trapping surveys were conducted. The report also states quite clearly "there are no hollow-bearing trees within the subject land". Following feedback from council, additional and more specific fauna surveys were carried out including spotlighting, use of infrared cameras, anabat recorders and trapping. The surveys found a number of common mammals (including bats), reptiles and birds but no listed species.

Mr Fanning considers that the site provides a minute proportion of potential habitat for any threatened species of bats and therefore it is not likely that there will be a significant impact on those species. Similarly, in his opinion, there have been no recent recordings of the Eastern Pygmy Possum in proximity to the site, and even if the species were present, most of their available potential habitat and resources will be retained on council's land. In any event, it is unlikely that a viable local population would be placed at risk of extinction.

In oral evidence, Mr Fanning estimated there would be about 100m of vegetation between the foreshore and the southern end of the cleared site, and 40m of this is BSF. While he agreed with Mr Seton that he had not tested the viability of the corridor, he relies on the extent of the remaining reserve to support his opinion that connectivity will remain. He accepts that the fencing will have an impact on the migration of possums and other species. In regards to fragmentation of the EEC, Mr Fanning stated that birds and other flying pollinators would be able to traverse any gap in the canopy.

On the matter of hollows, Mr Fanning agreed with Mr Gleeson that his statement on p7 of the Supplementary report that there were no hollow-bearing trees on the site is incorrect, but in s 5.3 of the report it states that the site does not provide "significant hollow habitat features (either in trees or on the ground)". He agrees there was no mapping of hollows but states that he and Ms Jenkins looked at the hollows notes on the Court's site inspection and he still considers them to be insignificant and not relevant to any threatened species.

Ms Jenkins is of the view there is uncertainty as to whether the remaining vegetation on Lot 13 will provide the same ecological function, including ecological processes, habitats, interactions for connectivity as the BSF currently on Lots 3 and 4. She maintains that SLR has not provided any analysis or supporting information to demonstrate the corridor will be viable in sustaining BSF EEC connectivity. Similarly, she opines that there is no analysis of the effects of fragmentation or patch size thresholds

While there are acknowledged shortcomings in the SLR reports, including the absence of detailed locations of searches and fauna sightings, I find there is insufficient reason to reject Mr Fanning's assessment of s 5A(2)(d).

In regards to s 5A(2)(g) and key threatening processes, in my view, a view shared by council, there are significant deficiencies in the SLR reports, in particular the failure to initially see, and subsequently consider, the removal of hollow-bearing trees. Hollows in Banksias were seen within minutes of entering the site during the site inspection for the hearing. Apart from the clearing of land, other key threatening processes listed in Schedule 4 of the TSC Act include weed invasion (a number of species are listed), the removal of hollow-bearing trees and the removal of dead trees and dead wood. Apart from clearing and invasion by Lantana and Bitou Bush, the SLR does not consider any of the other potential threats. The Supplementary report includes a list of measures that could be imposed to ameliorate any impact of the proposal.

In consideration of s 5A(2)(g) I find that the action proposed constitutes a key threatening process.

Therefore, the application of the seven-part test has resulted in two negative answers and one positive to the three relevant tests. However, taking everything into account, in the context of the jurisdictional question of whether or not an SIS is required, I find that the proposal is not likely to significantly affect the local occurrence of the BSF EEC to the extent it may be rendered extinct and therefore an SIS is not required. However, this finding is not necessarily an endorsement that the proposal is acceptable on environmental grounds.

Section 79C assessment

The main issues in this matter concern the impact of clearing of part of an endangered ecological community necessitated by the construction of the dwelling and associated structures, and by the subsequent requirement to deal with the fact that the dwelling is to be located within the flame zone in a high-risk bush fire zone.

In determining this matter, s 79C(1) of the EPA Act requires me to take into account any matters listed in this section that are of relevance to the development. The first of these includes the provisions of any applicable environmental planning instrument, proposed instrument, DCP, regulations, and coastal zone management plan.

Planning evidence was provided by Mr Stuart Dixon for the applicant and Mr David Broyd for the council. The planners participated in joint conferencing and prepared a report.

Environmental Planning Instruments

The planners agree that the zoning and classification of the site as a 1964 holding allow the construction of a dwelling on the site with consent from council. They also agree that the NSW Coastal Policy and SEPP 71 apply to the coastal zone and include the whole of the site and that SDCP 62 only applies to residential zones and therefore not to the site.

Shoalhaven Local Environmental Plan 1985

The key areas of disagreement between the planners are: the extent of proposed clearing and the likely impacts on the environment and thus the meeting of objectives in relevant planning instruments and policies; and the express provisions of cl 15 SLEP.

The following aims and objectives in clause 2 of SLEP are pressed by council:

(1) The aims of this plan are:

(c) to work towards an ecologically sustainable future through the proper management, development, protection, restoration, enhancement and conservation of the environment of the City.

(2) The objectives of this plan are:

(f) to ensure that development and expansion of coastal villages are sympathetic to the coastal environment;

(s) to avoid, mitigate or remedy the adverse effects of development on the environment,

(w) to minimise the clearing of native vegetation especially those local species which are poorly represented in conservation reserves.

I also note objective 2(e) - to ensure that the council gives due regard to the effect of natural hazards upon development.

The site is identified as a "1964 holding", defined in cl. 6(1) as:

1964 holding means land within (inter alia and relevantly) Zone 7(f3) which at 28 February 1964 was:

(a) the area of a lot, portion or parcel of land in a separate ownership, or

(b) where a person then owned 2 or more adjoining or adjacent lots, portions or parcels of land, the aggregation of the areas of those lots, portions or parcels, or

Clause 9(3) states the council [or in this case the Court] must take into account the aims and objectives of the plan and the zone when determining a development application.

As stated above, the site is zoned Zone No 7(f3) (Environment Protection "F3" (Foreshores Protection) Zone. The objectives of the zone are:

(a) to protect the foreshore environment and the visual amenity, and

(b) to protect water quality and the ecological values of estuaries and coastal streams.

Agriculture, caravan parks, dams, drainage, dwelling-houses, forestry, golf courses, home activities, public reserves, roads, utility installations (other than gas holders or generating works) are permitted with consent.

For new subdivisions of zone 7(f3) land, cl 11 (2) states that amongst other things, council consent would generally require a minimum lot area of 40 ha.

Relevantly, cl 15(1) considers that a dwelling house may, with the consent of the Council, be erected on an allotment of land within zone No 7(f3) if the allotment:

(a) has an area of not less than 40 hectares,

(b) is a 1964 holding,

The parties hold differing opinions as to the intent of cl. 15 of SLEP. The applicant contends that cl. 15 confers a separate and independent source of power to the council to grant consent to the erection of a dwelling on the site; as such, cl 15 should be given beneficial and facultative weight. The council's contention is that while the site is a '1964 holding', and therefore the proposal is permissible with consent, given its surroundings, it is nonetheless inconsistent with the purpose and rationale of the minimum lot size requirements (40 ha) for the erection of a dwelling on the site.

Mr Dixon considers the minimum lot size is irrelevant, and council's stand seeks to sterilise the site regardless of the merits of the proposal. In his opinion, the council has had many opportunities to acquire the site or rezone it but hasn't. Mr Dixon maintains that the site is reasonable under the circumstances given that bushfire measures can be wholly contained within the site, and the siting of the dwelling is not affected by coastal hazards.

Mr Broyd opines that cl. 15 of SLEP simply make the proposal permissible with consent subject to all other merit considerations and there is no express power that adds any additional weight to a proposal to erect a dwelling on the site by virtue of it being a 1964 holding. In regards to the relevance of the 40 ha lot size, Mr Broyd considers this demonstrates the intent of the control to minimise fragmentation of land zoned 7(f3) and, as such, should be taken into consideration.

Mr Gleeson contends that the permissibility of erecting a dwelling on the site remains unchanged since 1964. He relies in part, on the findings of the former Chief Justice McClellan in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 79 at [117] where His Honour stated that "where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning". Mr Seton maintains that the fact something is permissible does not mean it should be approved. He cites BGP at [119] and submits that contemporary standards may render a once acceptable development unacceptable.

It is common ground that the site is a '1964 holding' under SLEP and that a dwelling is permitted with consent. I agree with Mr Broyd that cl 15 of SLEP does not confer any separate and independent source of power to the council to grant consent to the erection of a dwelling on the site. However, I accept Mr Dixon's opinion that the 40ha minimum lot size is irrelevant.

While not considered in any detail, cl 15 applies to the construction of a dwelling in a wide range of specific environment protection zones within zone 7 in a range of specified circumstances. While a 40ha minimum lot size may be appropriate in another zone such as 7(d1)(Environment Protection "D1"(Scenic) Zone), given the typical lot sizes of the early paper subdivisions such as the one that established the current site, 40ha could not apply. In my view, clause 15 SLEP simply captures a range of historical and other situations. The fact remains that the zone permits, with council consent, dwelling houses and other development.

The relevant zone objective at [28] is the protection of the foreshore environment and the visual amenity.

In oral evidence and under cross-examination from Mr Gleeson, Mr Broyd maintained his opinion that the extent of clearing undermines the visual and ecological values of the site that the NSW Coastal Policy and JBREP seek to preserve and enhance. In his view the built form will be an anomaly and out of character with its surroundings.

Mr Dixon agrees with Mr Seton that the proposal will have an impact on the environment but he considers it is not unreasonable in the circumstances. He also agrees that development on the site is difficult but not impossible. Mr Dixon maintains his opinion that the clearing to be undertaken is limited to facilitating a permissible development and that vegetation will be retained on the southern portion of Lot 13, thus achieving a balance.

In regards to the extent of the foreshore environment, Mr Dixon considers it only extends to the vicinity of Marine Parade and does not include the whole of the site but only part of Lot 13. Mr Broyd considers it applies to the whole of the site by dint of the naming of the zone, that is Foreshore Protection.

With respect to visual amenity, Mr Dixon agrees that a dwelling in the otherwise vegetated southern side of Griffin Road may seem odd but he considers that given the extent of vegetation that will remain, the view will remain essentially dominated by forest. In Mr Dixon's opinion the visual catchment also includes the northern side of Griffin Street and the Benton Sands development, which is primarily residential in character.

The zone objective in SLEP is very broad. The proposal will completely remove 73% of the vegetation on the site. Although the extent of vegetation remaining between the foreshore and the development will provide an effective screen so that it is unlikely to be viewed from the beach, I agree with the applicant's planner that the development will appear "odd" when viewed from Griffin Street.

Notwithstanding the strip of vegetation to be retained along the frontage, the proposed fence and dwelling will appear incongruous given the intact expanse of vegetation on the southern side of Griffin Street. While the applicant raises the pumping station as an existing intrusion into the forest, this is of modest proportions and without fencing. However, taken in the broader context to include the northern side of Griffin Street, absent the proposed front fence, the proposal is otherwise consistent with the dimensions of other dwellings.

I find that the loss of visual amenity, in itself, is not sufficient to refuse the application, however, other findings in regards to the suitability of the site are made elsewhere in this judgment.

SEPP 71 - Coastal Protection & Jervis Bay Regional Environmental Plan

I agree with the planners that State Environmental Planning Policy No. 71 - Coastal Protection (SEPP 71) applies to the whole of the site and not just part of Lot 13 as contended by council in its Statement of Facts and Contentions. The aim in clause 2(1)(g) is to protect and preserve native coastal vegetation. The policy applies to any part of the land which is within the coastal zone unless it is land described in cl. 4(2) (which it is not). Clause 8 lists matters to be taken into consideration by a consent authority in determining a development application to carry out development on land to which this Part applies (cl. 7(b)). The following matters are relevant:

(a) the aims of this Policy set out in clause 2,

(d) the suitability of development given its type, location and design and its relationship with the surrounding area,

(g) measures to conserve animals (within the meaning of the Threatened Species Conservation Act 1995) and plants (within the meaning of that Act), and their habitats,

The site is located close to Jervis Bay and therefore Jervis Bay Regional Environmental Plan1996 (JBREP), now a deemed SEPP, applies until such time as draft Shoalhaven LEP 2013 is gazetted. Until that time, JBREP prevails over SLEP 1985 to the extent of any inconsistencies (cl. 5(c)). Clause 4 provides the aims of the plan:

(a) to protect the natural and cultural values of Jervis Bay, and

(b) to allow proposals that contribute to the natural and cultural values of the area.

Clause 10 requires:

If you are a landowner, or a developer, or the Council, or a public authority, proposing or assessing any proposal, then you must achieve the aims of this plan.

In essence Mr Dixon is of the opinion that the extent of clearing is minor and limited to the provision of an APZ. He also relies on Mr Fanning's opinion that there is unlikely to be a significant impact on the BSF EEC. In his opinion, as the clearing is minor and retains vegetation along the foreshore, it does not offend the provisions of the NSW Coastal Policy or the objectives of the zone.

Mr Broyd takes the opposing view that the clearing is not minor and will have detrimental impacts on the Bangalay Sand Forest EEC through edge effects and the increase in human activity on the site. In Mr Broyd's opinion, the applicant's ecologist has failed to substantiate that there is not likely to be a significant impact on the EEC. In his view, the proposal is inconsistent with a number of the goals, strategic actions and provisions of the NSW Coastal Policy and the JBREP.

Although council lands to the east and west preserve the EEC and the habitats of flora and fauna within it, the SEPP and REP (deemed SEPP) must be considered as applying to the site. Therefore I agree with Mr Broyd to the extent that although I have found that the impact is insufficient to require an SIS, the removal of most of the BSC EEC from the site is not consistent with these aims.

Draft SLEP 2013

As required by s 79C(1)(a)(ii) I must consider Draft Shoalhaven LEP 2013. While the savings provision in s 1.8A applies, I must consider the draft instrument. Under Draft SLEP 2013, the site would be zoned Zone E3 Environmental Management. The objectives of the zone are (relevantly):

To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values;
To provide for a limited range of development that does not have an adverse effect on those values;
To protect the natural and cultural features of the landscape, including coastal and foreshore areas, which contribute to scenic value and visual amenity.

The range of development permitted with consent is broader than Zone 7(f3) but includes dwelling houses. Draft cl. 4.2D considers erection of dwelling houses on land in certain zones, including Zone E3. Clause 4.2D(3) states that consent must not be granted for the erection of a dwelling house on a lot in a zone to which this clause applies, and on which no dwelling house has been erected, unless the lot is: (a) a lot that is at least the minimum lot size specified by the Land Size Map [in this case 40ha]; or, (b) a lot created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement.

There was some debate between the parties as to why council did not take the opportunity to rezone the land E2 Environmental Conservation under Draft SLEP. This zone includes dwelling houses with consent but the objectives elevate ecological and other values. The short answer appears to be that the Standard Instrument presumes equivalent zones; E3 is equivalent to zone 7(f3).

Draft SLEP 2013 was submitted to the Minister on 31 October 2013 but at the time of the hearing had not been gazetted. No submissions were made as the imminence and certainty of that occurring. While the proposed zoning clearly permits a dwelling with consent, in my view, the removal of 73% of the BSF EEC from the site does not accord with the zone objectives that seek to protect, restore and manage areas with special ecological values.

Development control plans

I agree with the planners that DCP 62 cannot apply to the site. Shoalhaven Development Control Plan No.91 - Single Dwelling and Ancillary Structures applies. Council presses cl.2.1.3 Setback and building line- performance criteria P4 - the development design and site placement is compatible with and enhances the prevailing and potential streetscape.

No submissions were made in regards to this issue. In my opinion, nothing really turns on this as there are no adjoining dwellings to be affected by the setback. While the proposed fence is out of character with the northern side of Griffin Street, it appears otherwise permissible.

NSW Coastal Policy

Section 79C(1)(a)(iv) of the Act and Clause 91(1)(a)(ii) of the Environmental Planning and Assessment Regulation 2000 require consideration of the NSW Coastal Policy 1997 if it applies to the land the subject of the development application. Shoalhaven LGA is listed in the Regulation as land to which this policy applies. The relevance is considered in submissions.

Mr Gleeson presses the following statement on p 12 of the policy.

The focus on conservation initiatives does not mean that future urban development in coastal areas should be sterilised. In particular, the policy promotes the need for local housing strategies in order that opportunities to more efficiently utilise land in existing urban centres are identified. These opportunities can ensure that equity considerations are fulfilled by allowing more people to live in the coastal zone while preserving important environmental attributes.

Mr Gleeson also identifies a statement on p 23 of the policy, which states that "The policy, however, has no impact on the existing use rights of residential (or other) developments". However, as the land has not been used for any purpose prior to this application, there can be no existing use rights. The only "right" is that the land is zoned for a range of purposes for which one can apply to council to carry out on the land. The policy applies to all new developments on public and privately owned land.

Mr Seton contends that the Coastal Policy is based on the four principles of ecologically sustainable development (ESD): conservation of biological diversity and ecological integrity; inter-generational equity; improved valuation, pricing and incentive mechanisms such as polluter pays; and the precautionary principle requiring a risk averse approach to decision making. These are reflected in the overall goals of the policy.

The policy predates the Final Determination of BSF as an endangered ecological community. However, as the site has the potential to be used for a range of purposes, the policy's underlying intent to balance development with maintaining the environmental values of coastal areas remains applicable.

The fact that the site and the surrounding reserve is classified as an EEC supports the principle of conservation of biological diversity and ecological integrity. In my view, the listing of BSF as an EEC is to retain inter-generational equity by limiting the loss of such vegetation. The clearing of 73% of the EEC on the site, which is located in the central portion of the reserve, is not taking a risk-averse approach in decision-making. While the assessment of significance under s 5A(2) did not come to the conclusion that the proposal was likely to be the tipping point to send the community, deemed by its listing to be already facing a very high risk of extinction, to that end point, in taking a precautionary approach, the lack of certainty in the ecological studies should not be a reason for taking measures to prevent environmental degradation by refusing the proposal.

Therefore, at the level of the consolidated lots, I do not consider the proposal achieves three of the four ESD principles upon which the Coastal Policy is based. Any refusal of this development does not unduly and unreasonably limit the availability of housing stock in the Callala Beach area.

Likely impacts of development, suitability of the site, submissions and the public interest

Section 79C(1)(b) requires the consent authority to take into consideration the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. Section 79C(1)(c) requires consideration of the suitability of the site for the development. Any submissions made in accordance with the Act or the Regulations must be considered (s 79C(1)(d)), as must the public interest (s 79C(1)(e)).

As there are no adjoining structures, there are no impacts on the built environment. Council did not raise any social or economic impacts. Hundreds of public submissions were received. The main concerns are summarised in [31]. Therefore the likely impacts arising from this proposal relate to: the BSF EEC, measures required for bush fire protection, and residents' concerns about the erosion of the dunes.

In regards to the foreshore environment, and residents' concerns over the risks to the dunes and the potential for coastal erosion, the applicant engaged Geoff Metzler & Associates Pty Ltd to prepare a "Coastal Engineering Assessment" for the site. The Metzler report assessed the proposal against the relevant criteria in council's policies and Coastal Zone Management Plan 2009, professional standards, NSW State Government policies and guides, including incorporating predicted increases in sea level as consequence of climate change for the period up to 2100. The report assessed impacts due to: sea level rise, flooding, wave action and beach recession for 2013, 2050 and 2100. The report found only a low risk of anything by 2100. Given this report, council has not raised any contentions. Having read the report, there appears to be no reason to refuse the proposal on this basis.

While bushfire issues were not raised specifically in council's contentions, they were raised by the local residents in their oral and written submissions (Exhibit 4). The submission made by Mr Trevor Smith on behalf of the Callala Beach Progress Association on the first day of the hearing (Exhibit 1) refers to the objects of the Rural Fires Act 1997 and cl. 28 SLEP.

The objects of the Rural Fires Act 1997 (s 3) are:

The objects of this Act are to provide:

(a) for the prevention, mitigation and suppression of bush and other fires in local government areas (or parts of areas) and other parts of the State constituted as rural fire districts, and

(b) for the co-ordination of bush fire fighting and bush fire prevention throughout the State, and

(c) for the protection of persons from injury or death, and property from damage, arising from fires, and

(c1) for the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from damage arising from fires, and

(d) for the protection of the environment by requiring certain activities referred to in paragraphs (a)-(c1) to be carried out having regard to the principles of ecologically sustainable development described in section 6(2) of the Protection of the Environment Administration Act 1991.

Danger of bush fire is covered in cl 28 SLEP. The following clauses are relevant:

(1) The Council must not grant consent to the carrying out of development on bush fire prone land if it is of the opinion that:

(a) the development may have a significant adverse effect on the implantation of:

(i) any strategies for bush fire hazard reduction or risk management adopted by the Council, or

(ii) any relevant provisions of the Act or the Rural Fires Act 1997, and

(b) the development, including the arrangements for access to and from the development, may constitute a significant threat to the lives of residents, visitors or emergency services personnel, and

(c) the development may give rise to an increased demand for emergency services during bush fire events that will result in a significant decrease in the ability of the emergency services to effectively control major bush fires.

(2) The Council must not grant consent to the carrying out of development on bush fire prone land unless it is satisfied that adequate measures are proposed to avoid or mitigate the threat from bush fire, having regard to:

(a) the siting of the development, and

(b) the design of, and the materials used in, any structures involved in the development, and

(c) the clearing of vegetation, and

(d) the provision of asset protection zones, landscaping and fire control, aids (such as roads and water supplies).

(3) Before deciding to grant consent to any development on bush fire prone land, the Council:

(a) must have regard to the requirements of Planning for Bush Fire Protection....

(b) must be satisfied that those requirements will be met as far as practicable in the circumstances.

Section 79BA(1)(a) of the EPA Act requires the consent authority to be satisfied that the development conforms to the specifications and requirements of Planning for Bush Fire Protection.

An RFS approval in principal does not guarantee approval of a development application but is something that must be gained as part of an integrated approvals process.

As stated elsewhere, the site is within land classified as being high-risk bushfire prone land. Three sides of the dwelling will be within the flame zone. Paragraphs [22]-[27] consider the response from the RFS. Residents raised concerns about the potential impact of protecting the dwelling, and the safety of occupants and fire fighters in the event of a bush fire. In my view, given the proposed location of the dwelling within the flame zone, this is a legitimate concern.

In essence, the major threat to the integrity of the BSF EEC arises from the clearing required to achieve the RFS' requirements. Given the size of the proposed dwelling, the constraints of the size of the block and the absence of any existing cleared land within the site, 73% of the vegetation must be removed and fencing to ground level installed. Siting the dwelling close to Griffin Street for the purposes of access to water supplies has the effect of removing the taller trees and older Banksias that are more representative of BSF.

The RFS approval is a pragmatic decision based on whether an acceptable alternative solution can be achieved to meet the relevant provisions of Planning for Bushfire Protection. The "Bushfire Protection Assessment" included in the material provided with the development application (Exhibit A, Tab 8) identifies the vegetation as Bangalay Sand Forest - being 'forest on flat land' for the purpose of PBFP 2006. No mention is made of its ecological significance, with the assessment of environmental issues being deferred to the "Ecological Issues and Assessment Report" by SLR.

While s 5A of the EPA Act concentrates on flora and fauna listed under the TSC Act, the impact of the fencing on the movement of species not yet listed as threatened, has been given little consideration. Mr Fanning accepted that the fences would limit the movement of possums. In my view, a fence to ground level would also limit the movement of reptiles and other fauna. While a corridor for movement of wildlife would be retained at the southern end, a possible consequence of barrier fencing on both sides could be to force wildlife onto Griffin Street. Therefore, there may be other unforseen impacts on local fauna.

Returning to the submissions made in regards to the permissibility of a dwelling on the site, Mr Gleeson relies on part of [117] in BGP Properties however, in my view, the full text of that paragraph and the two that follow (citations omitted) are apposite to this matter, particularly in considering s 79C(c), the suitability of the site for development.

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor, planning decisions must generally reflect an assumption, that in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects. Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.

Since the time of the paper subdivision, the human, property, financial and environmental costs of bush fires have been recognised in legislation. Although the RFS has provided council with its recommended conditions, I am not satisfied that the proposal satisfies the requirements in cl. 28(1) of SLEP. In particular, I am not satisfied that the proposal achieves objects (c), (c1) and (d) of the Rural Fires Act 1997 (cl. 28(1)(a)(ii)). I consider the siting of the dwelling in a flame zone on three sides with limited (albeit sanctioned) access unduly constitutes a significant threat to the lives of residents, visitors or emergency services personnel (cl. 28(1)(b). No consideration appears to have been made in regards to the front fence and gates and impacts on the planned escape routes. Siting a new dwelling in the flame zone is also likely to give rise to increased demand for emergency services in a bush fire (cl. 28(1)(c). Therefore, notwithstanding the recommended conditions of consent from the RFS, I am not satisfied that the requirements of cl. 28 of SLEP are met and consent cannot be granted to the proposal.

Zone 7(f3) permits a limited range of other uses other than 'dwelling houses', including 'public reserves' at one extreme and 'caravan parks' at another. In BGP at [117] and in particular at [119] while a range of activities may be permissible within a zone, the situation can arise where circumstances and community expectations may have changed to the point where some uses may be considered less environmentally suitable. When the paper subdivision for Callala Beach was originally drawn up in the 1920s it is highly unlikely that any thought was given to environmental concerns. The listing of a plant community as an Endangered Ecological Community under the TSC Act recognises its relatively parlous state and the need for special protection. Similarly, the principles of ESD were not then enshrined in the decision-making process.

Therefore under s 79C(c) and s 79C(e) I find that the site is unsuitable for the proposed development and is not in the long term public interest.

Apart from the direct and possible indirect impacts of the proposal on vegetation on the site, I am not satisfied that there has been a sufficient investigation of the possible impacts on the vegetation in the reserve to the east as a consequence of the installation of the sewer connection from the site to the pumping station.

A matter pressed by the applicant throughout the hearing is council's failure to purchase the site when there have been several opportunities to do so, the most recent being the auction at which the applicant purchased the site. As mentioned at [20], it appears that the extent of delegation to council's representative at the auction was the amount arising from the unpaid rates on the property. I agree with Mr Seton that this is not a matter relevant to consideration under s 79C. The reasons behind council's decision not to purchase cannot be interrogated; however it is quite possible that this was one of many lots across the entire LGA and financial considerations prevailed.

Conclusions and orders

In summary, I am not satisfied that the proposed development and the consequential extent of clearing meets the following objectives or controls:

Clause 2(f) and (s) SLEP 1895 - objectives of the plan [72];
Clause 2(1)(g) SEPP 71 [94];
Clause 4(b) JBREP [95];
Zone objectives Draft SLEP 2013 [100];
Principles of ESD In the NSW Coastal Policy 1997 [109]-[112];
Objects in s 3(c)(c1)(d) Rural Fires Act 1997 [117]; and
Clause 28(1) SLEP 1985 [118].

Although the applicant has purchased the land in good faith and has applied, as is his right, for the construction of a dwelling on the land, after considering the particular circumstances of the site, and in accordance with s 79C of the EPA Act, I find that for the reasons detailed in this judgment, consent cannot be granted for the construction of a dwelling and the appeal is dismissed.

Orders

The Orders of the Court are:

(1) The appeal is dismissed.

(2) Development application DA 13/1500 for the construction of a two-storey dwelling, ancillary structures, clearing of vegetation and associated works on Lots 3, 4 and 13, Section 13, DP 9063 Griffin Street, Callala Beach, is refused.

(3) All exhibits except Exhibit 2 are returned.

_____________________

Judy Fakes

Commissioner of the Court

Decision last updated: 27 June 2014

Medium Neutral Citation:	Elachi v Shoalhaven City Council [2014] NSWLEC 1126
Hearing dates:	8-9 April 2014
Decision date:	27 June 2014
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	The appeal is dismissed.
Catchwords:	DEVELOPMENT APPLICATION: 1964 holding; Bangalay Sand Forest EEC; Is an SIS required
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1997 Threatened Species Conservation Act 1995 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy No. 71 Jervis Bay Regional Environmental Plan1996 Shoalhaven Local Environmental Plan 1985
Cases Cited:	BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 79 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8
Category:	Principal judgment
Parties:	Charbel Elachi (Applicant) Shoalhaven City Council (Respondent)
Representation:	Applicant: Mr G Gleeson (Solicitor) Respondent: Mr A Seton (Solicitor) Applicant: RMB Lawyers with Morton & Harris Respondent: Marsdens Law Group
File Number(s):	11039 of 2013