Ground Crew at Turramurra Pty Ltd v Ku-ring-gai Council (First Respondent) the Commissioner of the Rural Fire Service (Second Respondent)

[2008] NSWLEC 86

Land and Environment Court

of New South Wales

CITATION:

Ground Crew at Turramurra Pty Ltd v Ku-ring-gai Council (First Respondent) The Commissioner of the Rural Fire Service (Second Respondent) [2008] NSWLEC 86

PARTIES:

APPLICANT
Ground Crew at Turramurra Pty Ltd

1ST RESPONDENT
Ku-ring-gai Council

2ND RESPONDENT
The Commissioner of the Rural Fire Service

FILE NUMBER(S):

10555 of 2007

CORAM:

Roseth SC

KEY ISSUES:

Appeal :- Bushfire Risk:

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
The Rural Fires Act 1997

DATES OF HEARING:

24/01/2008 and 25/01/2008

 
DATE OF JUDGMENT: 

28 February 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr D. Miller, barrister
instructed by Mr A. Whealy
of Gadens Lawyers

1st RESPOONDENT
Mr N. Howie, solicitor
of Wilshire Webb Staunton and Beattie

2ND RESPONDENT
MR C. Harris, SC
Instructed Mr N. Thomas
of Clayton Utz

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

28 February 2008

10555 of 2007 Ground Crew at Turramurra v Ku-ring-gai Council (First Respondent) and the Commissioner of the NSW Rural Fire Service (Second Respondent)

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Ku-ring-gai Council) of a development application to construct a residential precinct consisting of 58 dwellings, referred to as the East Bank Development, within the nearly-completed senior housing development of 220 dwellings called the Landings, on lot 1 DP 858405, known as 440 Bobbin Head Road, North Turramurra.

The site, existing development and surroundings

2 The Landings site is a battleaxe allotment of irregular shape with a total area of 11.87 ha. It is zoned Special Uses 5(a) Hospital. It is located on the northern tip of the North Turramurra “Peninsula” adjoining the Ku-ring-gai Chase National Park. (The word “peninsula” is used to describe this part of North Turramurra because it is a half-island of development surrounded by bushland.) To the north and west of the Landings site is dry sclerophyll forest and Sydney sandstone woodland, which are defined as “bush fire prone vegetation category 1” on the Bush Fire Prone Land Map prepared by the council for the purposes of s146(2) of the Environmental Planning and Assessment Act 1979 (the EPA Act). To the east of the site is Eden Ridge, a retirement village, which adjoins Lady Davidson Hospital. To the south of the site is residential development.

3 A 2002 development consent (granted by this Court at the request of the parties as consent orders and with the agreement of the Rural Fire Services) provides for 220 dwellings, of which 169 have been constructed and 51 have yet to be constructed. The constructed dwellings are in two apartment buildings and in single and two-storey attached dwellings, served by a private street network. The residential buildings surround a Community Building, open space and a detention lake.

4 Apart from the main access to the site from Bobbin Head Road, there are three further access ways to the Landings, either proposed in the original application or required by the conditions of the 2002 consent: a fire trail through the national park, a right-of-way into Du Faur Street, and a right-of-way into the adjoining Eden Ridge. The two rights-of-way have not yet been constructed.

5 The North Turramurra Peninsula is served by Bobin Head Road, which has two lanes. At a point south of the site and north of Glengarry Road, bushland, rather than houses, adjoins the road. The bushfire experts referred to this point as the pinch point because it may be impossible to pass it in severe bushfire events. The Peninsula is not protected by a ring road, the development adjoins bushland on the north, east and west directly. Along Bobbin Head Road are numerous hospitals, convalescent and respite homes and medium density retirement villages. The Rural Fires Act 1997 (the RF Act) refers to this type of development as “special fire protection purposes” because they are likely to contain less mobile residents and require special protection in cases of bush fire.

6 The East Bank section of the site has an area of 1.3 ha. It slopes from the east to the west, is cleared and unused. It is the closest part of the Landings site to Bobbin Head Road and the farthest from bushland.

The proposal

7 The applicant proposes to substitute a housing precinct containing 58 dwellings on the East Bank site replacing 46 of the 51 dwellings not yet constructed. If the proposal is approved and constructed, the total number of dwellings in the Landings will be 232 rather than 220. The road design of the proposed precinct of 58 dwellings is different from that containing 46 already approved for the site. In the approved precinct a central spine road connects a proposed connection to the Eden Ridge development (also referred to as the Leura Crescent connection). Fire trucks entering would therefore proceed in a straight direction and turn into the access roads that serve the individual dwellings. In the new proposal for the East Bank development the road pattern is a loop road around the proposed housing. Fire trucks would turn left or right after entering the site from Leura Crescent.

8 The proposal includes a number of changes to the existing development of The Landings, all intended to improve bush fire safety.

• An ongoing assessment of the health of individual residents to determine their level of evacuating capability;
• Appointment of wardens to manage and implement the procedures set out in the Emergency Incident and Emergency Evacuation Plan, including communication with and cooperation with Emergency Services;
• All residents will be trained annually as to the emergency procedures and will be provided with a copy of the Bushfire Emergency Incident and Emergency Evacuation Plan, and a Bushfire Manual regarding bushfire protection and awareness. Staff will be trained on regular basis.
• An early warning system to identify days of heightened fire risk.
• Early relocation of village residents who wish to leave (12 to 24 hours prior to the impact of an event) or in accordance with directions by Emergency Services personnel/ Incident Controller;
• The Safe Refuge Area (the existing Community Hall) will be equipped with air conditioning capable of operating in recycle mode without taking in outside air. Air-conditioned areas will be fitted with seals to external doors and windows. The Safe Refuge Area is 750m2 and can hold 700 people. Works are proposed to provide ember protection and to upgrade it to Level 1 construction in accordance with AS3959-1999.
• A generator providing emergency power to the Safe Refuge Area will be provided and will be regularly tested and operated by staff and wardens. It shall be linked to a water tank, which provides non-potable water.
• The water tank shall be available for toilets and fire hose reels in the event that the water supply is cut off;
• Bottled water, food and medical supplies shall at all times be sufficiently stocked and available in the Safe Refuge Area.
• Additional hose reels will be provided to assist fire fighters.
• The existing fire trail around the site will be upgraded. No Stopping and No Parking signs will be erected on the internal roads to increase accessibility for emergency vehicles. A new break will be provided in the entrance drive to allow access to the fire trail. The emergency access points at Leura Crescent and Du Faur Street will be upgraded. The existing detention basin will be made available for fire fighting.
• Annual reports will be provided to the Rural Fire Service.

The history of the proposal

9 The applicant lodged the development application in December 2006. Following notification, the council received 96 submissions from 83 addresses objecting to the proposal. On 16 January 2007 the council referred the application to the Commissioner of the NSW Rural Fire Services (the RFS) in accordance with s91A of the EPA Act. The RFS responded on 31 January 2007 that it was not prepared to issue a bush fire safety authority. The council refused the application on 7 June 2007 for two reasons:

• It is unable to grant consent since the RFS has not given a bush fire safety authority; and
• The proposal is not in the public interest because of bush fire risk.

10 On 19 December 2007 the RFS was joined as Second Respondent.

Relevant legislation and policies

11 The Ku-ring-gai Planning Scheme Ordinance zones the Landing site 5(a) Special Uses (Hospital). The retirement village of 220 dwellings was granted consent under the then State Environmental Planning Policy 5 – Housing for Older People and People with a Disability (SEPP 5). Soon after the consent was issued, Amendment 5 to SEPP 5 came into force, excluding the North Turramurra “peninsula” from the operations of the Policy, thus making medium density housing under SEPP 5 (and, with the change of name to the SEPP, housing under the Seniors Living State Environmental Planning Policy (SLSEPP)) a prohibited use. It is common ground that the site has existing use rights and that the Court has power to grant consent, notwithstanding the proposed use now being prohibited.

12 For the council to approve the development, it requires a bush fire safety authority pursuant to s100B(6) of the RF Act. Under s39(6A)(b) of the Land and Environment Court Act 1979, the Court has the power to approve the application notwithstanding the refusal by the RFS to issue a bush fire safety certificate.

13 The Regulations under the RF Act and the EPA Act referred, at the time the application was lodged, to the RFS’ guide Planning for Bushfire Protection 2001 (PBP 2001), a document suggesting ways of lessening bushfire risk for developments in bushfire prone areas. The document was revised in 2006 and republished as Planning for Bushfire Protection 2006 (PBP 2006). The revised document came into force on 1 March 2007. Section 100B of the RF Act and regulation 46(h) under that Act require the assessment of development to take into account PBP 2006.

The issues

14 In its Statement of Contentions the First Respondent, the council, raised several matters apart from bush fire risk. In the course of negotiations these matters were resolved to the council’s satisfaction, so that the only issue before the Court is that of bush fire risk.

15 The Second Respondent, the RFS, identified the matters in contention in relation to bush fire risk under the following headings:

• Occupants of a retirement village are more vulnerable in bush fire than the population generally.
• The existing Landings development is inadequately designed for the level of risk to which it is exposed. Examples are inadequate internal roads, inadequate water supply and pressure and inferior level of construction for bush fire safety.
• The proposed refuge is not likely to provide a safe haven in bush fires.
• Climate change will make matters worse.
• The Peninsula will be more difficult to evacuate as a result of the additional 12 dwellings.
• The improvements to fire safety offered by the applicant as a trade-off for the twelve additional dwellings are likely to be provided whether or not the application is approved.

The objectors’ evidence

16 The Court heard seven objectors during the inspection of the site. Mr G Wynn, who lives at 28 Leura Crescent, Eden Ridge, said that the evacuation procedures of the Landings are deficient, there being no evacuation routes and too much reliance being placed on the safety of the Community Building. Mr R Holland, who lives at 28 Kirkpatrick Street, pointed to the serious fire risk to the site by showing an aerial photograph taken during a fire event and printed in the Sydney Morning Herald. Mr M Halomas, who lives 317 Bobbin Head Road, was concerned about another 60 dwellings being built in an area that already had too many dwellings from the viewpoint of bush fire safety. Ms F Martin, who lives in Killara and is a community representative on the Planning for Bushfire Protection Committee, said that the proposal was inappropriate in its location. Mr C Russell, who lives at 236 Bobbin Head Road and is a member of North Turramurra Action Group, said that the proposal increases the danger for the rest of North Turramurra, which is overpopulated with old and sick people. Ms C Drake, who lives at 387 Bobbin Head Road, said that it takes three to four hours to evacuate the area. Every new dwelling adds to the delay. Mr B Cannon, who lives Miowien Road, said that the proposal would increase what is already a high concentration of vulnerable residents.

17 Taking the written and spoken objections together, it appears that a major concern of objectors was that additional dwellings at the Landings would make Bobbin Head Road even more crowded, should evacuation of the area be required. People living outside the Landings complex thought that more dwellings at the Landings will compromise their own safety.

The experts

18 The experts on behalf of the RFS were Mr L Short, manager of development control of the RFS; Chief Superintendent S Midgley, manager of risk management performance of the RFS; and Mr J Leonard, bushfire research scientist with the CSIRO. The experts in the applicant’s case were Mr B Eadie, a fire-engineering consultant, and Mr T Rogers, a traffic engineer.

Vulnerability of occupants

19 According to Mr Leonard and Mr Midgley, the occupants of the Landings are a more vulnerable group than the population in general. This is because smoke is more likely to affect old people than the average population. Older age groups should relocate well before the fire impacts on their location.

20 Mr Eadie does not dispute the above. His response is the Emergency Incident and Evacuation Plan, prepared by the applicant for this application but applying to the whole of the Landings development. The two main elements of that Plan are: (a) that residents wishing to evacuate will be relocated 24 hours before the occurrence of a bushfire; and (b) those staying on the site will be accommodated in the Community Building, which is to be turned into a Safe Refuge Area. According to Mr Eadie, only residents who evacuate early would evacuate, while remaining residents would be transported to the Safe Refuge Area.

21 However, Mr Short has a concern with the plan to retain residents in the Safe Refuge Area as a principal strategy. This is because the Police and Emergency Services have the ultimate authority and they may order the evacuation of the site. He saw a potential conflict here. In addition, Mr Leonard said that in many cases there would not be 24 hours warning of impending bushfires. Recent fires (in particular the Canberra bushfire in 2003) have demonstrated that the warning time can be as short as 30 minutes.

22 Mr Eadie’s response to the possible short warning time was that, in such cases, all residents would go the Safe Refuge Area. They would be moved to the Safe Refuge Area by the community bus and 12 golf vehicles.

Vulnerability of the proposed East Bank development in the context of the existing Landings development

23 According to the experts on behalf of the RFS, the existing Landings development is highly vulnerable because the access is deficient, the existing buildings are not fire resistant, the private road network is too narrow, and the buildings are too close to each other. Moreover, the location at the northern end of Bobin Head Road requires that evacuation vehicles pass the “pinch point” in Bobbin Head Road mentioned above.

24 According to Mr Short, the location of the Landings site is the feature that renders the development most vulnerable. There are 1,700 vulnerable residents living north of the “pinch point” in Bobbin Head Road in five seniors living establishments, four retirement villages, one hospital and five nursing homes. Although it was not said in so many words, it was clear from the evidence of the RFS experts that they now consider allowing the original development in 2002 to have been a mistake.

25 Mr Rogers demonstrated that the road network was wide enough to allow the largest fire fighting vehicles to pass. I accept his evidence, though I note that in many places the vehicle paths that he had drawn indicate that the passage is very tight. Improperly parked vehicles would cause problems to any fire fighting vehicles.

26 The applicant’s response to the factors that make the Landings so vulnerable in bushfires is that the relevant matter for the Court is the assessment only of the East Bank development, not the inadequacies of the existing Landings, which have been approved and largely constructed. I accept that this is so, though the context of the whole Landings site is relevant, particularly in relation to access.

27 Apart from the 12 additional dwellings, the main difference between the approved East Banks development and the proposed East Banks development is the layout of the private road network. Mr Rogers said that the road network in the proposal was safer for fire fighting vehicles than the approved road network. Mr Short and Mr Midgley disagreed. They preferred the approved road network, which did not require a vehicle to turn after entering from the (as yet unbuilt) access way through Eden Ridge. Given Mr Short’s and Mr Midgley’s greater familiarity with driving fire fighting vehicles in bushfire events, I accept their evidence in preference to Mr Rogers’. The difference in the road pattern between the approved and the proposed East Banks development is a major change that appears to increase risk from bushfires.

The proposed Safe Refuge Area

28 Since the applicant’s principal argument for being allowed to build another 12 dwellings is the upgrading of the Community Hall to a Safe Refuge Area, the effectiveness of a strategy bringing most (and sometimes all) residents to the Safe Refuge Area in bushfires assumes great importance.

29 Mr Midgley cast doubt on the effectiveness of the strategy. He referred to a survey carried out in Victoria in 2003 concerning the intentions of people in the event of a bushfire. Over 70% of respondents to the survey indicated that they would choose to leave during a bushfire event. Twenty-seven percent of the respondents said they would leave when the fire threatened. According to Mr Midgley, this is the most dangerous time to leave. In cross-examination Mr Eadie said that in the Landings the proportion of people wanting lo leave the site is likely to be less than 70%. That may be correct, but even if it is only 50%, it would greatly reduce the effectiveness of the strategy of moving everyone to the Safe Refuge Area.

30 Mr Leonard said that it would be difficult to make the Safe Refuge Area completely safe in the even of a major bushfire. However, I accept that the applicant has proposed all practical measures to make the existing Community Building as safe as possible, and that it is better to have a Safe Refuge Area than not to have it. The question for the Court is whether the provision of the Safe Refuge Area is of sufficient benefit to justify placing 12 more dwellings into what is clearly a highly bushfire-prone location.

31 In my opinion, the most persuasive evidence against reliance on the Safe Refuge Area is that it has not been demonstrated effective elsewhere. While Mr Eadie showed himself a strong advocate of the Safe Refuge Area strategy, he was unable to cite a single development where the concept has been implemented. Mr Midgley recalled only one other development that utilised a refuge in bushfire emergency and that was a nursing home, which is quite different from the Landings where the dwellings are widely spread over a large area. Mr Short did not recall approving a development that utilised the concept.

32 The fact that the concept of a Safe Refuge Area for bushfire emergency has been rarely used does not mean that it should not be tried here. If it were a matter of the applicant proposing to introduce the concept into the existing Landings development, thereby adding an alternative way of dealing with bushfire emergency without increasing the risk, the concept would probably find favour. In the present case, however, the applicant is requesting approval of 12 more dwellings against the provision of the Safe Refuge Area. The balancing equation becomes quite different. The Court’s confidence in the strategy would be greatly strengthened if its proponent, Mr Eadie, had been able to point to its having been tested elsewhere.

Climate change

33 Mr Leonard pointed out the likelihood that bushfire events are likely to increase in the future because of climate change. While this is probably correct, I have not given this contention major weight, mainly for the reason that, while it has undoubtedly a major impact on the Landings and the whole of North Turramurra Peninsula, the impact on the 12 additional dwellings is unlikely to be major. The significance of the evidence on climate change is only that, if one has any concerns about the threat of bushfire to the Landings in general, and the East Bank application in particular, then these concerns are unlikely to decrease in the future.

The improvements offered would happen anyway

34 According to Mr Midgley, given the extent of the risk identified in his Statement of Evidence, “any prudent landowner should act to lessen the risk, regardless of the outcome of these proceedings”. In the applicant’s submission,

“It is difficult to see what the planning basis is for this criticism, or what the Court’s power would be to impose such a condition in response to this subject development application. It seems to be some sort of attempt to transfer risk and/or liability away from the Rural Fire Service”.

35 In paragraph 8 I outlined the improvements that the applicant proposes as trade-off for being allowed to construct 12 additional dwellings. Most of these improvements are simply expressions of better management and better information for the residents to help them behave sensibly in bushfire emergencies. With the exception of structural changes to the Community Building to transform it into a Safe Refuge Area, they seem to me to be aspects of responsible management of a retirement village accommodating vulnerable people in an area of high bushfire risk.

36 The applicant’s submission that the Court has no power to require the applicant to manage the Landings responsibly is correct. Does this mean that the Court should assume that the applicant would not manage the development responsibly, now that the site’s vulnerability has been highlighted in these proceedings? I note that the 2002 consent for the Landings was subject to a condition of the rights-of-way to Eden Ridge and Du Faur Street being constructed. Despite the fact that the majority of the dwellings in the development have been constructed, the two rights-of-way have not. Since development has not been fully completed, there is no legal obligation on the applicant to comply with all the conditions. Nevertheless, the failure to implement these rights-of-way by the time most of the residents are living on the site is disappointing. It calls into question how seriously the applicant considers bushfire risk.

37 As concerns the structural alterations to the Community Building proposed in the application, these would certainly require development consent as well as a bushfire safety certificate. If these improvements were proposed without the risk posed by the 12 additional dwellings, simply as an additional way to deal with bushfires, they are unlikely to have difficulty in being approved. I accept, of course, that neither the Court, nor the council, nor the RFS has any power to require the applicant to undertake these improvements.

38 The approach I have adopted is that the improvements offered by the applicant will not be provided if the subject application is refused, though I hope that that approach is too pessimistic.

Conclusions

39 The fundamental question for the Court is whether the improvements to bushfire safety offered by the applicant as a trade-off against being allowed to construct 12 additional dwellings would result in a safer development overall than leaving the existing development consent for the Landings unchanged. The three experts on behalf of the RFS have persuaded me that consent for the application would not result in an overall safer development. The applicant’s expert, Mr Eadie, who advocated the strategy to move the majority of residents into the Safe Refuge Area in bushfire events, could not point to any example where this strategy has been tried. The failure to demonstrate that the Safe Refuge Area strategy works in practice strengthens me in the above conclusion. For these reasons the appeal is dismissed.

Orders
1. The appeal is dismissed.

2. Development application to construct a residential precinct consisting of 58 dwellings, referred to as the East Bank Development, within the nearly-completed senior housing development of 220 dwellings called The Landings, on lot 1 DP 858405, known as 440 Bobbin Head Road, North Turramurra is determined by refusal.

3. The exhibits are returned.

___________________
Dr John Roseth
Senior Commissioner