Geoghegan v Blue Mountains City Council - [2009] NSWLEC 1400

Land and Environment Court

of New South Wales

CITATION: Geoghegan v Blue Mountains City Council [2009] NSWLEC 1400

PARTIES:
APPLICANT
Anthony and Jennifer Geoghegan
RESPONDENT
Blue Mountains City Council

FILE NUMBER(S): 11027 of 2008

CORAM: Fakes C

KEY ISSUES: DEVELOPMENT APPLICATION :- 2-storey log home with carport and driveway, non-compliance with NSW Rural Fire Service

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Blue Mountains Local Environment Plan 2005
State Environmental Planning Policy 1 objection

CASES CITED: Winton Property Group Limited v North Sydney Council [2001], 130 LGERA

DATES OF HEARING: 13 November 2009

EX TEMPORE JUDGMENT DATE: 13 November 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Vergotis (solicitor)
SOLICITOR
DLA Phillips Fox
RESPONDENT
Mr A Seton (solicitor)
SOLICITOR
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

13 November 2009

11027 of 2008 Anthony and Jennifer Geoghegan v Blue Mountains City Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Blue Mountains City Council (the council) to grant consent to a development application, 1248/2007, for the construction of a two-storey log home with carport and driveway at Lot 61 deposited plan 623521 or 14 Innes Road, Mount Victoria. This appeal is brought under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act).

2 The issue between the parties, and the council’s reason for refusal, is that that the proposed development application does not comply with specifications and requirements of Planning for Bushfire Protection [2006] (PBP 2006), a requirement under s 97BA of the Act. Specifically, the main issues were, the nature and construction of the external walls of the dwelling and the construction material of the carport.

3 The New South Wales Rural Fire Service (NSW RFS) was consulted concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bushfire. The NSW RFS requires that new construction on the elevations exposed to the bushfire hazard shall utilise entirely non-combustible materials and no exposed timber is permitted.

4 The proposed development utilises external timber cladding, timber logs and timber decking in the construction and does not achieve the requirements of the NSW RFS. All but one other of the standards in the proposal were complied with.

5 Section 97BA requires that:

6 The original dwelling was proposed to be a two-storey log home with a colorbond metal roof and the walls to be a single skin cypress tongue and groove engineered log wall. The dwelling was proposed to be set approximately 11 metres from the western boundary. The detached carport was proposed to be of cypress timber posts and roof frame with colorbond sheeting roof.

7 The property is located in the zone ‘living bushfire conservation area’ under the Blue Mountains Local Environment Plan 2005 (BMLEP) and is classed and mapped as category one bushfire-prone land in part.

8 Of particular relevance to this matter is compliance with PBP 2006 of the NSW RFS. This document, amongst other things, provides guidance on assessment parameters and impacts of fire and sets performance standards for construction of categories of bushfire attack.

9 The subject dwelling is classed as both extreme and flame zone. These are defined in the document. The PBP 2006 refers to AS 3959:1999 Construction of buildings in bushfire-prone areas with respect to the level of construction required for each category. The extreme category requires level 3 construction and the flame zone is beyond the scope of the Australian Standard.

10 Section 3 of AS 3959 sets out the requirements for construction of various elements of a building in order to reduce the likelihood of ignition when subject to bushfire attack. Clause 3.5.1(iii) states that for a level 1 construction ‘A wall of timber logs that have the butting faces of adjacent logs, gauge-planed, and the space between the logs sealed in a manner that prevents the entry of burning debris and which allows for building movement’. The requirements for levels 2 and 3 construction retain the allowable standard.

11 Following consultation between the parties and the Commissioner of the NSW RFS, the condition of consent now before court is number 21:

Construction of buildings in bushfire-prone areas

12 I am satisfied that the evidence before me, that being slightly amended plans, show compliance with the PBP 2006 and the Australian Standard for both the dwelling and the carport and thus meets the requirements of s 79BA of the Act and the relevant Blue Mountains City Council environmental planning instrument, that being the Local Environmental Plan.

13 The only other matter is a State Environmental Planning Policy 1 objection with respect to cl 58 of the Blue Mountains LEP that relates to cut and fill in living bushland conservation zones. This must not be greater than one metre for a cut or a fill. The plans revised on 19 June 2009 show a cut and fill of 1.1m. An analysis of the SEPP1 objection tendered by the respondent addresses the five SEPP point tests established by the court in Winton Property Group Limited v North Sydney Council [2001], 130 LGERA and finds that the proposed development satisfies those tests.

14 In this matter, the report found that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case and refusal of the development application for non-compliance with cl 58 of the Blue Mountains LEP is not warranted. The council accepts this position and upholds the SEPP1 objection.

15 I accept from the evidence before me that the proposal meets the intent of the Blue Mountains Local Environment Plan and satisfies s 79BA of the Act. I therefore accept that the consent orders sought by the parties may be granted.

16 By consent the court orders that:

Annexure ‘A’

Conditions of Consent

Geoghegan v Blue Mountains City Council

Development Application No. X1248/2007

Lot 61, DP 623521 (No.14) Innes Road, Mount Victoria

This consent is issued subject to conditions stated hereunder, in accordance with Section 80A of the Environmental Planning and Assessment Act 1979 . Physical commencement of construction is required within 5 years from the date from which the consent operates.
To confirm and clarify the terms of consent, the development shall be carried out in accordance with the plans prepared by Appalachian Log Homes Job No. 0731, numbered 01-10 dated 2/11/07 and revised 19/06/09 and accompanying supportive documentation, except as otherwise provided or modified by the conditions of this consent.

A construction certificate is required prior to the commencement of any site or building works. This certificate can be issued either by Council as the consent authority or by an accredited certifier.

Under clause 97A(3) of the Environmental Planning & Assessment Regulation 2000, it is a condition of this development consent that all the commitments listed in each relevant BASIX Certificate for the development are fulfilled.
In this condition:
1. relevant BASIX Certificate means:

a) a BASIX Certificate that was applicable to the development when this development consent was granted (or, if the development consent is modified under section 96 of the Act, a BASIX Certificate that is applicable to the development when this development consent is modified); or
b) if a replacement BASIX Certificate accompanies any subsequent application for a construction Certificate, the replacement BASIX Certificate; and

2. BASIX Certificate has the meaning given to that term in the Environmental Planning & Assessment Regulation 2000.

The approved plans must be submitted to a Sydney Water Quick Check agent or Water Servicing Coordinator to determine whether the development will affect any Sydney Water Asset’s sewer and water mains, stormwater drains and/or easement, and if further requirements need to be met. Plans will be appropriately stamped.
Please refer to the web site for:

Quick Check agent details – see Building Developing and Plumbing then Quick Check; and

Guidelines for Building Over/Adjacent to Sydney Water Assets – see Building Developing and Plumbing then Building and Renovating or telephone 13 20 92.

A copy of the stamped plans or other documentary evidence from Sydney Water’s accredited agent demonstrating that the plans have been stamped by them is to be submitted to the Principal Certifying Authority prior to construction commencing.

A survey report by a registered land surveyor is required to ensure that the proposed development is located on the correct allotment and at the approved distances from the boundary. This is to be verified by pegging of the site prior to the commencement of work.
The survey report is to be provided to the Principal Certifying Authority prior to works proceeding past floor level.

It is the responsibility of property owners to ensure that Home Owners Warranty insurance has been obtained in accordance with the Home Building Act 1989. Prior to any works commencing on the site, a copy of the Home Warranty Insurance Certificate for the property is to be submitted to the Principal Certifying Authority. Information on this insurance scheme can be obtained from the Department of Fair Trading.

To preserve the unique environment of the Blue Mountains and to contain soil and sediment on the property, controls in accordance with Council’s Better Living Development Control Plan are to be implemented prior to clearing of the site vegetation and the commencement of site works. This will include:

The installation of a sediment fence with returned ends across the low side of the site so that all water flows through. These shall be maintained at no less than 70% capacity at all times. Drains, gutters, roadways etc., shall be kept clean and free of sediment.

To prevent the movement of soil off site, a single entry/exit point to the property shall be constructed of 40mm blue metal aggregate or recycled concrete to a depth of 150mm. The length must be at least 5 metres with the width at least 3 metres.

Soil erosion fences shall remain and must be maintained until all disturbed areas are restored by turfing, paving, or revegetation.

To ensure that the site is easily identifiable for deliveries and provides information on the person responsible for the site, a sign displaying the following information is to be erected:

The statement “Unauthorised access to the site is not permitted”.

The names of the builder or another person responsible for the site along with an out of hours contact number.

Lot or Street number.

Before work starts, toilet facilities must be provided for construction personnel on the site on the basis of 1 toilet for every 20 workers. Amenities are to be installed and operated in an environmentally responsible and sanitary manner. Toilets cannot remain on site for any longer than 12 months, without the further approval of Council.

To safeguard the local amenity, reduce noise nuisance and to prevent environmental pollution during the construction period:
a) Site and building works (including the delivery of materials to and from the property) shall be carried out Monday to Friday between 7am-6pm and on Saturdays between 8am-3pm, excluding public holidays. Alteration to these hours may be possible for safety reasons but only on the approval of Council.
b) Stockpiles of topsoil, sand, aggregate, spoil or other material shall be stored clear of any drainage path or easement, natural watercourse, footpath, kerb or road surface and shall have measures in place to prevent the movement of such material off site.
c) Building operations such as brickcutting, washing tools, concreting and bricklaying shall be undertaken on the building block. The pollutants from these building operations shall be contained on site.
d) Builders waste generated under this consent (including felled trees, tree stumps and other vegetation) must not be burnt or buried on site. All waste must be contained and removed to an approved Waste Disposal Depot or in the case of vegetation, with the exception of environmental and declared noxious weeds, mulched for re-use on site.

To control rainwater runoff, roof water shall be connected to stormwater drainage lines discharging to a rainwater tank with a capacity of 30,000 litres. This capacity does not include water for bushfire fighting purposes referred to in condition 18. The overflow is to be directed to the street gutter.
It is recommended that the drainage system be installed at the same time as the footings/slab. It must, however, be operational as soon as the roof is clad.

Excavated and filled areas are to be graded and drained in a manner that will prevent surface water from entering the building and will not be detrimental to adjoining properties or the environment. In this regard,

the floor level shall be a minimum of 225mm above finished ground level; and

seepage and surface waters shall be collected and diverted clear of the building site by a subsurface / surface drainage system.

Note: Care is to be taken to ensure that no run off is diverted to adjoining properties.

the excavation at the rear (or north-eastern aspect) of the dwelling must be stabilised by the construction of a vertical wall that is designed by a suitably qualified structural engineer and have a drainage system behind the wall.

All disturbed areas are to be topsoiled and turfed or spraygrassed. Where batters exceed a ratio of 3 horizontal to 1 vertical, retaining walls or terracing is required.

1. To have regard of the amenity of the area, the materials and colours to be used are:

External/ clad walls: Timber or Colorbond ‘Slate Grey’ or similar
Roof: Colorbond ‘Slate Grey’ or similar

NOTE: Zincalume cladding is unacceptable.

2. Any outbuildings or other ancillary structures are to be finished in colours and materials of muted bushland tones and low reflective quality to blend with the surroundings. Any variation to the above materials / colours will require the prior approval of Council.

1. To ensure adequate access, good sight distance and balance in the site design, the driveway:

must be a minimum of 2.7 metres wide.
must be sealed.
must be contained wholly within the subject property.

2. Any construction works are to be completed to Council’s adopted standards prior to occupation of the building.

To ensure that effluent generated by the development can be adequately disposed of without causing adverse environmental impacts, the development shall be connected to the Sydney Water Corporation reticulated sewerage system.

1. Water conservation devices that are at least AAA-rated are to be installed in the dwelling to minimise the volume of wastewater produced.

Reason for 16(1) – To ensure that wastewater management will have a sustainable neutral or beneficial effect on water quality over the long term.

2. Effective erosion and sedimentation controls are to be installed prior to any construction activity, including earthworks for the dwelling and site access. The controls must prevent sediment entering drainage depressions and watercourses and are to be regularly maintained and retained until works have been completed and groundcover established.

3. The existing gravel access driveway must either be sealed or, if retained, must have a sediment trap at its base to prevent sediment entering the street drainage system in Innes Road.

Reason for 16(2) and 16(3) – To manage adverse environmental and water quality impacts during the construction stage of the development and to minimise the risk of erosion, sedimentation and pollution within or from the site during the operational phase.

17. Asset Protection Zone

1. The entire property shall be managed as an ‘Inner Protection Area’ (within the meaning of the NSW Rural Fire Service’s document "Planning for Bushfire Protection 2006") and as provided in the NSW Rural Fire Service’s document “Standards for Asset Protection Zones” (as modified or replaced from time to time, insofar as the modifications or replacements relate to the management of asset protection zones), available electronically at Works to ensure the property complies with this condition are to be completed prior to the issue of an Occupation Certificate.

3. The property is to be maintained in accordance with this condition for the life of the development.

18. Services

1. Arrangements for the provision of water, electricity and gas to the property are to comply with section 4.1.3 of the NSW Rural Fire Service's document "Planning for Bushfire Protection 2006".

2. In recognition of an unreliable reticulated water supply, a minimum 10,000 litre water supply and tank shall be provided for fire fighting purposes. The tank shall be constructed of non-combustible materials with a 65mm metal Storz fitting and ball or gate valve to be installed at the base of the tank. The gate or ball valve, pipes and tank penetration must be able to accommodate for full 50mm inner diameter water flow through the Storz fitting and are to be metal.

3. A minimum 5hp or 3kW petrol or diesel powered pump shall be made available to the water supply for fire fighting purposes. A 19mm (internal diameter) fire hose and reel shall be connected to the pump.

1. Obtain a Static Water Supply (SWS) marker from the Blue Mountains NSW Rural Fire Service as part of the District’s Static Water Supply Program once the dedicated tank water supply has been installed and before the issue of an occupation certificate.

2. The marker, once issued, is to be:

fixed in a suitable location so as to be highly visible;
positioned adjacent to most appropriate access for the static water supply;
fixed facing the roadway on a gatepost, fence or dedicated post, at the right hand side of the entranceway to the Static Water Supply;
fixed not less than 600mm from the ground surface to the base of the sign and not higher than 1200mm from the ground surface to the base of the sign;
fixed with suitable screws or nails.

To aid in fire fighting activities, unobstructed access for fire fighting personnel shall be provided to all aspects of the dwelling and the water supply tank.

21. Level of construction

1. The proposed dwelling shall be constructed to comply with Australian Standard AS3959-1999 ''Construction of buildings in bush fire-prone areas'' Level 3. Without limiting the requirements of this condition 21(1):

(a) The external walls on the northern and western elevations may be constructed of Australian White Cypress Logs (each with dimensions of at least 150mm x 100mm nominal and 130mm x 90mm DAR). The log walls shall be gauge-planed, with all gaps sealed in a manner that prevents entry of burning debris and which allows for building movement. All other exposed timber on the western and northern elevations of the proposed dwelling must be a fire-retardant-treated timber in accordance with AS 3959-1999; and

(b) There is to be no exposed timber on the southern and eastern elevations of the proposed dwelling; and

(c) There shall be no exposed timber on the proposed entry porch or the upper and lower decks, with the exception of the deck posts and handrail posts on the west and north aspects, which shall be made of a fire-retardant-treated timber in accordance with AS 3959-1999.

22. Guttering

1. Roofing shall have leafless guttering that is screened to prevent the build up of flammable material.

2. Any materials or devices used to stop leaves collecting in the gutters shall have a flammability index of not greater than 5 when tested in accordance with AS1530.2-1993 ‘Methods for Fire Tests on Building Materials, Components and Structures – Test for Flammability of Materials’.

23. Doors – East and south aspects

1. All external single door units on the east and south aspects are to have a Fire Resistance Level of at least -/30/-. The external skin of the doors shall be metal plated.

2. Screen-less door systems shall be fitted with draught excluders and door seals that are manufactured from non-combustible materials or materials having a Flammability Index no greater than 5 (with the exception of intumescent seals which are permissible). In addition, externally fitted hardware / door furniture shall be metal and the door system shall be tight fitting to the frame and abutting door (if applicable) so that there are no gaps greater than 2mm in diameter when the door is closed.

All windows and sliding door units of the east and south aspects are to be fire rated glass to a heat flux of 40 kW/m². All glazed surfaces (fixed and open-able) shall be screened with a steel mesh that has a maximum aperture size of 2mm.

All property boundary fencing shall be made of non-combustible materials (including that no part of the fencing shall be made of timber).

Structure and shade materials shall be non-combustible or have a Flammability Index no greater than 5 when tested in accordance with Australian Standard AS1530.2-1993 ‘Methods for Fire Tests on Building Materials, Components and Structures – Test for Flammability of Materials’.

There shall be no exposed timber on the proposed carport.

Details of the proposed method of compliance with Conditions 21, 23, 24 and 27 of this consent must be submitted with an application for a Construction Certificate for assessment by the Principal Certifying Authority. The Principal Certifying Authority must be provided with evidence that all structures and works to which conditions 21, 23, 24 and 27 of this consent apply have been completed in accordance with the requirements of those conditions prior to the issue of an Occupation Certificate..

1. A revised landscaping plan is to be submitted to Council for consideration and/ or approval prior to the issue of a Construction Certificate. The landscaping plan must:

Planning for Bushfire Protection 2006

2. All landscaping must be completed in accordance with the approved plan prior to the issue of an Occupation Certificate and maintained in accordance with the requirements of this consent for the life of the development.

_________________________

ljr

CITATION:	Geoghegan v Blue Mountains City Council [2009] NSWLEC 1400
PARTIES:	APPLICANT Anthony and Jennifer Geoghegan RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	11027 of 2008
CORAM:	Fakes C
KEY ISSUES:	DEVELOPMENT APPLICATION :- 2-storey log home with carport and driveway, non-compliance with NSW Rural Fire Service
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Blue Mountains Local Environment Plan 2005 State Environmental Planning Policy 1 objection
CASES CITED:	Winton Property Group Limited v North Sydney Council [2001], 130 LGERA
DATES OF HEARING:	13 November 2009
EX TEMPORE JUDGMENT DATE:	13 November 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr P Vergotis (solicitor) SOLICITOR DLA Phillips Fox RESPONDENT Mr A Seton (solicitor) SOLICITOR Marsdens Law Group