Heathcote Gospel Trust v Sutherland Shire Council

[2013] NSWLEC 1051

Land and Environment Court

New South Wales

Medium Neutral Citation:	Heathcote Gospel Trust v Sutherland Shire Council [2013] NSWLEC 1051
Hearing dates:	4, 5, 6, 7 February 2013
Decision date:	28 March 2013
Jurisdiction:	Class 1
Before:	Pearson C Smith AC
Decision:	The parties are to provide an agreed condition to reflect the finding in paragraph [85] by 8 April 2013, following which final orders will be made in chambers.
Catchwords:	DEVELOPMENT APPLICATION - Place of public worship - Meeting hall - Bushfire prone land - Visual impact - Traffic -Impact on amenity
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1997 State Environmental Planning Policy No 1-Development Standards Sutherland Local Environmental Plan 2006 Threatened Species Conservation Act 1995 Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Cases Cited:	New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) LGERA 303 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10 Veloshin v Randwick Council [2007] NSWLEC 428 Wehbe v Pittwater Council (2007) 156 LGERA 446
Category:	Principal judgment
Parties:	Heathcote Gospel Trust (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel Mr C McEwen SC with Mr M Staunton (Applicant) Ms S Duggan SC (Respondent) Solicitors Mr V Conomos, Conomos Legal (Applicant) Ms J Amy, Sutherland Shire Council (Respondent)
File Number(s):	10453 of 2012

Judgment

1. This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of consent to Development Application DA11/1270 for the construction of a meeting hall, construction of an internal road, and ancillary works, at 44R Forum Drive Heathcote (the site).

Site and context

1. The site is 2.351ha, and is situated at the western end of Forum Drive, which is an unfinished "loop" that terminates at the southern and northern ends of the site. The site adjoins the Heathcote National Park to the west. Forum Drive and the surrounding streets are developed with single and two storey detached dwellings. The site is undeveloped with the exception of a fire trail that traverses the northern end of the site off Forum Drive. The middle portion of the site is on the top of a ridgeline land formation that slopes and drains north, west and south towards the Bottle and Heathcote Creek waterways. The site includes well vegetated native tree and shrub plantings, rock outcrops and rock escarpments. On the site are a number of Melaleuca Deanei plants which are identified as vulnerable species under the Threatened Species Conservation Act 1995 and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

1. The site had been vacant Crown land, and from 2000 was managed by Landcom which proposed to subdivide the site for residential allotments. No residential subdivision was approved, and the applicant purchased the site in 2009.

Proposed development

1. The proposed development provides a meeting hall to be used by members of the Plymouth Brethren Christian Church, and is to replace a meeting hall in Rosebery Street Heathcote which has operated since 1973.

1. The amended plans provide for a building approximately 51 m by 35 m, which contains a main foyer leading in to the inner church hall, which is 645 sq m, and has fixed seating for up to 900 people; a side foyer running from the main foyer along the southern side of the inner church hall; a balcony along the north eastern side of the building; toilet facilities; and egress stairs from the hall level at the rear of the building and on the north eastern corner of the inner church hall. The undercroft area includes a parking area within the building footprint, storage, and plant and equipment areas.

1. Vehicle access to the site is from Forum Drive South. The continuation of the roadway down from the meeting hall to Forum Drive North is not intended to be used by the congregation except if directed by the Rural Fire Service in the event of a fire, and is intended for emergency vehicle access only. There are 102 formal marked parking spaces provided on site, including 38 spaces in the undercroft of the meeting hall building, and a further 20 informal unmarked spaces within the internal road system. There are two set-down/pick-up areas which can accommodate up to 5 cars or two buses.

1. The proposed scheduled operations provide for attendance of up to 35 people each week on Monday (6.00pm-7.00pm) and Sunday (6.00am-7.00am), 130 people each week on Tuesday (7.30pm-8.30pm), and 250 people each week on Thursday (6.15pm-7.15pm); 130 people every 4 weeks on Saturday (8.00am-9.00am); 250 people every 3 weeks on Sunday (5.00pm-6.00pm), and 400 people every 3 weeks on (a different) Sunday (10.30am-11.30am). In addition to these regular scheduled local (35-130 people) or regional (250-400 people) meetings, there is to be an occasional meeting with a maximum 900 worshippers, attending by invitation only, on a frequency of not more than once a year. Additional unplanned events such as weddings and funerals will also occur, up to 4 times per year, and involving no more than 250 people. No use of the premises or site is proposed outside these scheduled operations, other than for maintenance of the facility and for administration activities involving no more than 5 people.

Issues

1. The Council's contentions raised in its Amended Statement of Facts and Contentions (exhibit 3) included contentions that the development will have an unacceptable impact on the amenity of the locality due to its visual prominence; adverse impacts on natural features and the character of the locality; an unacceptable level of bushfire risk for users of the facility and adjoining property owners; adverse impacts from traffic and parking; adverse impacts on the amenity of adjoining properties; that the proposal is an overdevelopment of the site; and that the design of the building results in unacceptable amenity and impacts on the site.

1. The Council's contentions as pressed were that the proposed development will have an unacceptable impact on visual amenity of those properties in Corinth Drive adjoining the site which share a view similar to that from 101 Corinth Drive; and that the increased traffic volumes in the surrounding streets is out of character with the low density residential environment and results in an unacceptable impact on amenity; and the matters raised by the objectors. The Council's position was that the impacts on visual amenity and those arising from increased traffic volumes would each not of themselves warrant refusal. The Council submitted that based on the evidence of the objectors the impacts on amenity arising from the visual prominence of the proposed building, and from the traffic movements on Forum Drive, would warrant refusal of the application.

Planning controls

1. The site is zoned Zone 3-Environmental Housing (Bushland) and Zone 23-Road under Sutherland Local Environmental Plan 2006 (the LEP). The permissible uses in the Zone 3-Environmental Housing (Bushland) are "drainage, dual occupancies, dwelling houses, places of public worship, recreation areas, residential medical practices, roads, tennis courts (private), utility installations (except gas holders or generating works)". A "place of public worship" is defined:

place of public worship means a building or place used for the purpose of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events, instruction or religious training.

1. It was common ground between the parties that the Brethren are a "congregation or religious group", and that the proposed use is permissible as a place of public worship. While not a requirement in terms of the definition of a "place of public worship", the evidence is, as demonstrated by the practice at the existing meeting hall (exhibit G) that Sunday gospel preaching meetings are open to members of the public who are "well disposed and suitably attired".

1. The access roadway is located on that part of the site that is zoned 23-Road under the LEP.

1. The objectives of the Environmental Housing (Bushland) zone are:

(a) to minimise the risk to life, property and the environment from bush fire,

(b) to allow development that is of a scale and nature that complements the natural surroundings of the zone,

(c) to protect or restore existing bushland and other natural features,

(d) to ensure the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impacts of development,

(e) to minimise the impacts of development in the vicinity of heritage items,

(f) to allow the subdivision of land only where the size of the resulting lots makes them capable of development that retains or restores natural features, while allowing a sufficient area for building footprints and bush fire protection measures.

1. Clause 33(4)(b) of the LEP provides that the height of a building must not exceed 7.2m measured vertically from ground level to any point on the uppermost ceiling in the building, and 9m measured vertically from ground level to the highest point of the roof of the building. The proposed building complies with the total height limit, and exceeds the 7.2m ceiling height in an area of approximately 81sqm on the north eastern side of the building. The applicant provided an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP1).

1. Other relevant provisions in the LEP include cl 35 Building density, which establishes a maximum floor space ratio of 0.45:1, and cl 36 Landscaped area, which requires a minimum landscaped area of 45 percent of the area of the site. The proposed building has an FSR of 0.055:1, and landscaped area of 68%, and complies with both controls.

1. The site is bush fire prone land and cl 21 of the LEP provides the additional matters that must be considered. Section 79BA of the Act imposes additional requirements before any development consent can be granted, which are considered below.

1. Clauses 48-50 of the LEP provide for urban design. Clause 48 provides general considerations, and cl 50 provides for non-residential development in residential areas. Clause 50(2) provides:

(2) The consent authority must not consent to development to which this clause applies unless it has considered the following matters that are of relevance to the development:

(a) the extent to which any proposed non-residential buildings and their design will integrate into the locality concerned,

(b) the extent to which any such buildings will respond to the local character, and relate to the scale, streetscape, setbacks and use of materials of residential buildings,

(c) the extent to which the residential amenity of the locality concerned will be protected from detrimental traffic-related impacts and noise associated with the development.

1. The Sutherland Development Control Plan 2006 (the DCP) applies. Part 3 of Chapter 3 Urban Design includes provisions for side and rear setbacks. Part 3.b.7 provides for non-residential development in residential zones a minimum side setback of 1.5m and rear setback of 4.0m. Side walls are to be articulated to prevent continuous linear walls and promote variation and interest to setback areas and those walls; and where the height or length of any podium or elements erected on a podium is visually intrusive when viewed from a neighbouring property or public place, the elevation of the podium must be designed so that articulation, landscaping, level changes or the like are used to minimise the visual impact.

Evidence

1. The hearing commenced with a view of the site, which included a view of the site from four properties, 103, 101, 99 and 95 Corinth Drive. Evidence was given on site by Ms Christine Patterson, Ms Tamar Burns, Ms Joanne Jarvis, Mr David Grice, Mr Leonard Merryfield, Ms Susan Lohar, Ms Emma Edwards, Mr Keith Marshall, Mr Colin Heath, Ms Leonie Stone, Ms Kay Armstrong, Ms Gabrielle Williams, Mr Lionel Baker, Ms Rhonda Jackson, Mr Alan Norval, Ms Kim Mannix, Ms Fiona Willeman, Ms Vanessa Souter, and from his property by Mr John Veltmeyer. Notes of that evidence are exhibit 20. Ms Burns gave additional evidence in Court. The written objections made to the Council during its consideration of the application, and in response to the amended development application after the Class 1 appeal was lodged, are in evidence in exhibit 12.

1. The evidence of the objectors raised concerns as to:

• Loss of privacy, security fencing, cameras and lights, overlooking
• Traffic, including safety risks to children playing and riding bikes, noise and effects on sleep, access for emergency services, and access during busy times
• Traffic management, particularly problems at the intersection of Heathcote Road and Forum Drive North, and poor visibility at the intersection of Forum Drive South and Corinth Drive
• Parking, in particular for meetings of more than 400 people
• Bushfire risk given slope of site
• Bushfire safety risk, including whether closure strategy would be implemented, whether parishioners would remain on site rather than attempting to evacuate, and lack of adequate local knowledge for fire fighters
• Visual impact, in particular from properties in Corinth Road
• Height and bulk of building
• Compliance issues and reliance on Council to regulate
• Impact on amenity, including peace and tranquillity of area
• Loss of access to the National Park
• Development as a regional centre rather than being part of the local community
• Future growth in numbers
• Exclusion of members of the public
• Lack of community consultation.

1. The Council submits that the evidence of the objectors, at least in relation to the matters of visual impact from the properties that front Corinth Drive with rear boundaries adjoining the site, and vehicles travelling on Forum Drive South, is based on specific concrete and likely effects, backed up by expert evidence, and on the basis of those two matters consent should be refused.

1. The community responses to the proposed development as expressed in the written submissions made to the Council in its assessment of the development application are to be considered in accordance with s79C(1)(d) of the Act, and those responses, in the form of the written submissions and the evidence given by residents on site and in court, are aspects of the public interest within the meaning of s79C(1)(e) of the Act.

1. In Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10, Preston CJ confirmed that community responses are aspects of the public interest within the meaning of s 79C(1)(e) in securing the advancement of one of the express objects of the Act in s 5(c), being "to provide increased opportunity for public involvement and participation in environmental planning and assessment'' (see also New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 312 per Lloyd J; and Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 at 415 per Bignold J). Preston CJ held that in considering the community responses, an evaluation must be made of the reasonableness of the claimed perceptions of adverse effect on the amenity of the locality, and that involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on the amenity of the locality. A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the Act. The approach of Lloyd J in New Century was to the same effect, where his Honour held that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development.

1. Our findings, including those in relation to the issues of visual impact and traffic on Forum Drive South, are based on the expert evidence; the evidence of the neighbouring residents where based on objectively assessable and specific likely effects or impacts of the proposed development; and on the evidence obtained on the view.

1. While the Council's case as finally pressed was limited to the issues of visual impact and impacts of traffic on residential amenity, the Court is required by s79C of the Act to take into consideration all of the relevant matters including those identified in the LEP and DCP, and more broadly, under s 79C(1)(b) the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. Section 79BA of the Act imposes additional considerations. Each of the relevant issues, namely bushfire safety, acoustic impact, visual prominence, traffic and parking, ecological impacts, and stormwater management, is considered below.

Bushfire safety

1. The site is bushfire prone land. Clause 21 of the LEP provides:

The consent authority must not consent to development on bush fire prone land unless it has considered the following matters that are of relevance to the development:

(a) the extent to which the proposed development will achieve an appropriate balance between the conservation of the natural environment and the provision of appropriate bush fire protection measures,

(b) the risk of bush fire to life, property or the environment,

(c) the extent to which any proposed buildings will be constructed using techniques and materials to maximise their resistance to bush fire,

(d) whether adequate measures will be in place to enable the safe evacuation of people from the land, and enable access to that land by emergency services, during a bush fire,

(e) the intensity of the existing and proposed use of the land,

(f) the need to restrict vulnerable development on the land.

Note. Section 79BA of the Act and the Rural Fires Act 1997 also make provision for the carrying out of development on bush fire prone land.

1. The term "vulnerable development" is defined to mean "the erection or use of buildings whose occupants, in the opinion of the consent authority, are likely to need a high level of assistance during a bush fire or flood", including (a) a building used for a special fire protection purpose (within the meaning of section 100B of the Rural Fires Act 1997), and (b) accommodation for people with health and mobility problems, including aged and disabled housing and medical facilities with short term or long term accommodation. It was common ground between the parties that the proposed development is not "vulnerable development"; there is no evidence before the Court to suggest that the likely occupants of the meeting hall are likely to need a high level of assistance during a bush fire, and we are satisfied that the proposed development is not "vulnerable development".

1. Section 79BA of the Act provides:

79BA Consultation and development consent-certain bush fire prone land

(1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land unless the consent authority:

(a) is satisfied that the development conforms to the specifications and requirements of the document entitled Planning for Bush Fire Protection, ISBN 0 9751033 2 6, prepared by the NSW Rural Fire Service in co-operation with the Department of Planning (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or

(b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.

(1A) If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire.

(1B) This section does not apply to State significant development.

(2) In this section:

special fire protection purpose has the same meaning as it has in section 100B of the Rural Fires Act 1997.

1. Section 100B of the Rural Fires Act 1997 requires that a bush fire safety authority be obtained before developing bush fire prone land for the purpose of a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or development of bush fire prone land for a special fire protection purpose. Development requiring a bush fire safety authority is integrated development under s91 of the Act.

1. A "special fire protection purpose" is defined in s100B of the Rural Fires Act 1997:

special fire protection purpose means the purpose of the following:

(a) a school,

(b) a child care centre,

(c) a hospital (including a hospital for the mentally ill or mentally disordered),

(d) a hotel, motel or other tourist accommodation,

(e) a building wholly or principally used as a home or other establishment for mentally incapacitated persons,

(f) seniors housing within the meaning of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004,

(g) a group home within the meaning of State Environmental Planning Policy No 9-Group Homes,

(h) a retirement village,

(i) any other purpose prescribed by the regulations.

1. It was common ground that the proposed development is not a "special fire protection purpose".

1. The development as initially proposed included a residential subdivision. The Council referred the proposed development to the Rural Fire Service (RFS) which on 15 May 2012 issued a bush fire safety authority subject to conditions, including a requirement for a Bush Fire Emergency Evacuation Plan; management of the entire site as an inner protection area (IPA) in accordance with Planning for Bush Fire Protection 2006 (PBP); compliance with PBP requirements for water, electricity and gas; provision of a 50,000 litre tank for static water supply for fire fighting; compliance with PBP for internal roads, including a minimum carriageway of 6.5m; construction of the meeting hall to comply with section 3 and section 8 (BAL 40) Australian Standard AS3959-2009 "Construction of buildings in bush fire-prone areas"; and compliance with PBP for landscaping.

1. Following amendment of the proposed development to remove the residential subdivision, the RFS withdrew the bush fire safety authority, and by letter dated 7 August 2012 provided advice and recommended conditions regarding bushfire protection measures in accordance with s79BA of the Act, in similar terms to those provided in the bush fire safety authority. There was further correspondence between the Council and the RFS concerning various bushfire safety issues.

1. Expert evidence was provided on bush fire issues by Ms Debbie Pinfold (planner) on behalf of the Council, and Mr Graham Swain (bushfire management) and Mr John Travers (bushfire and environmental management) on behalf of the applicant, and a joint report was prepared dated 10 December 2012.

1. By Notice of Motion filed 25 January 2013 the Commissioner of the New South Wales Rural Fire Service sought leave pursuant to s 38(2) of the Land and Environment Court Act 1979 to participate in the proceedings including by giving oral or written evidence, and sought directions for the joint conferencing of the bush fire safety experts engaged by the applicant and the Council, and representatives of the RFS, and preparation of a joint report following that joint conferencing. Agreement was reached between the parties for two RFS officers, Ms Nika Fomin (Team Leader Assessment and Planning) and Chief Superintendent Stuart Midgley, to participate in further joint conferencing and the provision of a joint report (exhibit 1) and draft conditions addressing bushfire safety issues (exhibit 2). Those officers gave oral evidence together with Mr Swain, Mr Travers, and Ms Pinfold. The motion was dismissed by consent.

1. The Council initially contended in its Amended Statement of Facts and Contentions that the proposed development results in an unacceptable level of bushfire risk for users of the facility and for adjoining property owners. The principal issues were that the existing road network does not have the capacity to cater for evacuation of occupants of the proposed facility at the same time as evacuation of residents, and concern as to the efficacy of the proposed strategy of closure of the centre on days when a total fire ban has been declared or during periods of extreme or catastrophic fire danger.

1. The Supplementary Joint Report (exhibit 1) from the joint conferencing between Mr Travers, Mr Swain, Ms Pinfold, Ms Fomin and Chief Superintendent Midgley, addressed the issue of whether the closure strategy could be effectively implemented over the life of the development. The RFS officers outlined the elements of a "layered defence" strategy consisting of a combination of bush fire protection measures. Those measures included:

• construction of the meeting hall to BAL 40 standard, with the addition of shutters on all openings;
• design of the air conditioning system to ensure that the filtration design solution provides clean air for all likely occupants for the duration of the smoke logging period;
• Asset Protection Zone (APZ) requirements to be consistent with sections 3 and 5 of PBP and RFS Standards for APZs; and
• implementation of an annual audit process to certify compliance with the bush fire conditions of consent.

1. The RFS officers recommended development of the principle of enclosing the car park to achieve an additional shelter in place option for occupants of the site, on the basis that the site topography provides a greater level of protection being substantially located below existing ground and on a downhill slope and is unlikely to be exposed to a direct fire attack. That would also satisfactorily ameliorate the risk in the event of a "quick onset fire" on a day when the hall is not closed.

1. Ms Fomin and Chief Superintendent Midgley considered that this suite of bush fire protection measures would result in the same level of residual risk as currently experienced by the community as a whole, which is managed through the RFS operational plans and procedures including emergency warning systems. In their opinion, it would not result in the reasonable likelihood of church members needing to evacuate at the same time as the local residents under critical fire conditions. Ms Pinfold agreed that if that approach is adopted the matters raised in the bushfire contention are resolved subject to suitable conditions of consent.

1. The proposed development has been designed to provide shelter for the any occupants of the meeting hall in the event of a fire, and amended to enclose the undercroft carpark to provide an additional refuge. The proposed conditions include a deferred commencement condition requiring the applicant to satisfy the Council that the air conditioning system including the air conditioning filtration system can operate to provide clean air for all likely occupants of the site for a bush fire emergency during the duration of the smoke logging period which is estimated to be for one hour after the impact of a bush fire on the site. The conditions also require a Bush Fire Emergency Evacuation Plan, prepared in accordance with the RFS guidelines and approved by the Council before the use of the premises commences, and to be reviewed by the RFS if appropriate as part of the annual audit or when new guidelines are issued by the RFS; and an annual audit, with the premises not to be used unless and until a current certificate is provided following each audit. The Bush Fire Emergency Evacuation Plan is to require that the meeting hall not to be used for a 900 person event in the Bush Fire Danger Period (normally between 1 October and 31 March, or as declared by the RFS), and that the maximum occupancy during that period is 400; the building is to be closed during a Total Fire Ban, or during periods of Extreme or Catastrophic Fire Danger, or when directed by the RFS. Provision for management of the site as an IPA, and the other conditions recommended by the RFS relating to water and utilities, access, and design and construction of the buildings, are in proposed condition 3.

1. A draft Bush Fire Emergency Evacuation Plan, Fuel Management Plan, and Operational Management Plan are in evidence (exhibit A), and provide that the primary evacuation strategy if a fire occurs during a non Fire Ban Day is for the occupants to shelter in place, on the basis that the building is designed and constructed to withstand the impact of bushfire, and to evacuate only under the direction of the RFS. The proposed conditions include conditions 3(III) which requires the owner and operator of the facility to prepare an annual compliance audit covering the 12 months to 31 August each year and submit a report on the audit to the Council and the RFS. That audit and report must be conducted by a suitably qualified and experienced independent bushfire consultant, and include management of the APZ in accordance with the consent conditions, review and implementation of management protocols and the bushfire survival plan, and confirmation that the airconditioning system and power supply meet the consent requirements and the building is maintained in accordance with the bushfire construction requirements. Condition 3(III) provides that the premises cannot be used unless and until a current certification has been provided.

1. In oral evidence, Chief Superintendent Midgley was of the opinion that the management strategies of having the basement car park as a refuge for people to shelter in place, together with the APZ provisions, the construction of the building to BAL 40 standard and the additional shutters, and the monitoring, audit and compliance requirements, reduces the risk to an acceptable level.

1. In response to questions, Chief Superintendent Midgley addressed the issue of whether fire fighters in an emergency would have sufficient local knowledge to implement emergency management plans, commenting that it is not uncommon in large events to have firefighters from all around Sydney or the State or interstate, and the police also have police from outside the local area. The police control centre in Heathcote is set up to have the firefighting commanders, the police, and the local emergency management support people; if they send out of area firefighters out they always send local people with them. The command and control system they operate is a nationwide system called the Australian Inter-Agency Incident Management System and out of area firefighters are used to working in that arrangement. The basement would not be available for local residents to shelter; the primary mitigation method is not to occupy the meeting hall during extreme weather conditions and so it would not be likely to be open, which is one of the requirements for any neighbourhood safer place.

1. Section 79BA(1) requires that consent cannot be granted unless the consent authority is satisfied that the proposed development conforms to the requirements of PBP. We accept the evidence of Chief Superintendent Midgley and Ms Fomin that the combination of bushfire protection measures proposed for the development comply with the PBP requirements, and provide additional bushfire protection measures including the enclosure of the basement and the closure strategy. Having regard to this evidence, and to the conditions proposed, we are satisfied that the proposed development conforms with the requirements of PBP, and that s 79BA(1) of the Act is satisfied and development consent can be granted.

1. Clause 21 of the LEP requires consideration of a number of matters, including the extent to which the proposed development will achieve an appropriate balance between the conservation of the natural environment and the provision of appropriate bush fire protection measures; the risk of bush fire to life, property or the environment; the extent to which any proposed buildings will be constructed using techniques and materials to maximise their resistance to bush fire; whether adequate measures will be in place to enable the safe evacuation of people from the land, and enable access to that land by emergency services, during a bush fire, and the intensity of the existing and proposed use of the land.

1. The management of the site as an IPA will require clearing of vegetation, considered below. We accept the evidence of Chief Superintendent Midgley that having the site managed as an IPA, and with reduced fuel levels, would be of assistance to residents living in Forum Drive and further east of the site, and that the internal roadway would provide the RFS with high grade access to any fire interface, which would benefit the local community in addition to the users of the meeting hall. We accept the evidence of Ms Fomin and Chief Superintendent Midgely that the proposed building will be constructed to meet BAL 40 requirements, and provide for additional measures, including the shutters, that will increase its resistance to bush fire. We are satisfied that the proposed conditions prohibiting the holding of a meeting for 900 people during the declared bushfire season, and closing the facility on days when a Total Fire Ban is declared or during periods of Extreme or Catastrophic Fire Danger, or when directed by the RFS, together with the provision of shelter in the meeting hall and undercroft area, will mean that evacuation of the facility is not likely to be required at a time when the local residents are required to evacuate. On that basis, we are satisfied that adequate measures are in place to enable safe evacuation of both users of the facility and local residents.

Acoustic impacts

1. Clause 50(2)(c) of the LEP requires consideration of the noise impacts of the proposed development. An assessment of acoustic impacts was undertaken on behalf of the applicant by Mr Stephen Cooper, acoustic engineer. In his expert report (exhibit C) Mr Cooper noted that the ambient noise level in the area is consistently higher than the intrusive noise criteria used by the Environment Protection Authority of background plus 5 dB(A), which is either related to traffic movements associated with Heathcote Road and/or noise levels associated with wildlife or birds in the bushland setting. Mr Cooper assessed noise emission from people singing inside the meeting hall, mechanical plant noise, noise from people congregating outside the building, vehicle noise, and use of the car park stairs. Mr Cooper made recommendations for provision of acoustic barriers adjacent to the access roads and for the undercroft parking area. Mr Cooper assessed the drawings for the barriers proposed by the applicant, and in a supplementary report (exhibit D) proposed additional acoustic treatment for the undercroft parking area and access road and a modification of the barrier proposed for the eastern side of the access road.

1. The proposed conditions incorporate the recommended acoustic barriers, and include conditions limiting noise during the construction period, and during operation, including condition 91, limiting noise generated from acoustic or amplified noise, and 97 prohibiting musical or other forms of entertainment.

1. Based on the evidence of Mr Cooper, and subject to the imposition of the conditions proposed, we are satisfied that all noise occurring on the site would fall below the intrusive noise target, and that while the Sunday morning meeting falls within the period identified for acoustic assessment purposes as night time, the noise on the internal access road of the anticipated number of vehicles arriving or departing at those times would be below the design target by reason of the acoustic barriers. The issue of vehicle noise on the public roads outside the site was addressed by the traffic experts, and is considered below.

Visual prominence

1. The Council contended that the development will have an unacceptable impact on the amenity of the locality due to its visual prominence, and that it results in development that is inconsistent with the scale and character of the locality and adjoining residential buildings and the wider locality from which it is visible. As noted above, this contention was pressed in relation to the impact on visual amenity of those properties in Corinth Drive adjoining the site which share a view similar to that of Location B in the revised montages. That is a reference to the three photomontages in evidence (exhibit 6), showing the view of the proposed development from location A, which is on Forum Drive North to the north east of the proposed building; location B, taken from the rear verandah of 101 Corinth Drive; and location C, taken from the rear verandah of 95 Corinth Drive.

1. Expert evidence on visual impacts was provided by Ms Pinfold, Mr Crosbie Lorimer (landscape architect), and Mr Peter Brooker (architect) on behalf of the Council, and by Mr Mark Kuhne (landscape architect), Dr Richard Lamb (visual impacts), Mr Michael Harrison (architect), and Mr Lindsay Fletcher (planner) on behalf of the applicant. The experts had regard to the recommendations made by Mr Cooper for acoustic barriers in their assessment of visual impacts. In their joint report (exhibit 5) the experts agreed that location A is the point of highest visibility from the public domain; location B is the location from which the proposed building will be most prominent; and location C is the property that is the closest location to the proposed building, with the image taken from a position approximately 40m from the proposed building. We accept that evidence, which is consistent with the view.

1. The experts agreed that the visual impact of the proposal is acceptable when viewed from the public domain. In assessing the visual impact from locations B and C, the experts considered the colour modifications proposed by the applicant, and amendments to the design of the undercroft carpark area suggested by Mr Lorimer to incorporate blade walls or panels, to relocate the rainwater tank further to the southeast of the site; and the incorporation of toughened glass screens to the undercroft carpark to meet the bushfire requirements. In a supplementary report (exhibit 8), Mr Brooker, Mr Lorimer, Mr Kuhne, Dr Lamb and Mr Fletcher agreed that blade walls or panels of approximately 3m in height, up to 340mm wide, and 1200-1500mm depth in sawn sandstone facing would further improve the visual impact when viewed from the rear of the Corinth Drive properties. They agreed on relocation of the water tank, and a proposed colour scheme, and agreed that with those amendments the visual impact from location C would be acceptable.

1. The experts disagreed as to location B. Dr Lamb, Mr Kuhne and Mr Fletcher maintained their earlier opinion that the visual impact from location B was acceptable, noting that the colour changes were an improvement. Mr Lorimer and Mr Brooker acknowledged that the colour change was an improvement, however they still considered there to be an unacceptable visual impact from that location.

1. In assessing the visual impact of the proposed development in its context we have had regard as required to the objectives of the Environmental Housing (Bushland) zone, and to the considerations for urban design in cll 48 and 50 of the LEP, and in Chapter 3: Urban Design in the DCP. The zone objectives relevantly include allowing development that is of a scale and nature that complements the natural surroundings of the zone, protecting or restoring existing bushland and other natural features, and ensuring the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impacts of development. Clause 50 of the LEP applies to non-residential development in residential areas, and relevantly requires consideration of the extent to which the proposed building will integrate into the locality, and the extent to which it will respond to the local character and relate to the scale, streetscape setbacks and use of materials of residential buildings. Part 3.b.7 of the DCP applies to non-residential development in residential zones; point 3 provides that side walls are to be articulated to prevent continuous linear walls and promote variation and interest to setback areas and these walls, and point 4 provides that where the height of any podium or elements erected on a podium is visually intrusive when viewed from a neighbouring property or public place, the elevation of the podium must be designed so that articulation, landscaping, level changes or the like are used to minimise the visual impact. The objectives of part 3 are to provide visual and acoustic privacy, control overshadowing of adjacent properties, provide deep soil zones for tree planting, provide adequate access for emergency services, reinforce the desired spatial character of an area, and mitigate the visual intrusion of building bulk on neighbouring properties. We have also had regard to the planning principles expressed in Veloshin v Randwick Council [2007] NSWLEC 428 in relation to assessment of height and bulk, and in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 in relation to compatibility in an urban environment. Those planning principles identify further relevant questions to be considered, including in Veloshin whether the impacts of a proposal's height and bulk are consistent with impacts that could reasonably be expected under the planning controls, and whether the proposal fits into the existing character of the area, and in Project Venture Developments, whether the appearance of the proposal is in harmony with the buildings around it and the character of the street, considering (in an urban context) height, setbacks and landscaping.

1. The site is located on a slope, and the proposed building is situated near the ridge top. We accept that vegetation removal required to create and maintain an IPA for bushfire safety reasons limits the screening of the proposed building that might otherwise be obtained through landscaping. Based on the plans (DA201A), while there will be trees removed to construct the proposed meeting hall, most of those trees on the slope between the building and the properties at 95, 97, 99 and 101 Corinth Drive will remain, which will retain a significant element of the existing bushland surroundings.

1. We accept the evidence of Mr Harrison that approximately 20m, or two thirds of the balcony to the main hall, will be visible from the rear of 101 Corinth Drive. We are satisfied that the proposed colour scheme and the amended design of the undercroft area assist in better integrating the proposed building in the context of the natural landform. However, the upper level of the building with meeting hall and foyer presents as a large continuous structure, and given the height of that structure relative to the surrounding residences and its length, we accept that the building will be visually prominent. We agree with Mr Fletcher that the setback between the proposed building and its nearest residential neighbour, at 40m, and the residence from which it is agreed to be most prominent, at approximately 75m, and the oblique view angle, assist in mitigating that impact.

1. While the site is presently vacant, it is not part of the national park, and is zoned to permit residential development, and certain forms of non-residential development including that presently proposed. Given the topography of the site, we are of the view that any permissible development on the site is likely to be visible from the adjoining properties in Corinth Drive, and would be likely to have a visual impact. Having regard to the height, design and location (including setbacks) of the proposed building, we accept the agreed expert evidence, which is consistent with the view, that while the building will be visible from the public domain, the visual impact is acceptable. Based on the view and the revised drawing forming part of exhibit 8, we accept the expert evidence that the visual impact from location C would be acceptable. In relation to location B, we are satisfied that while there is a visual impact, that it is not unreasonable, and would not of itself warrant refusal of the application.

1. We accept the agreed expert evidence that there are no overshadowing impacts. The proposed conditions prohibit use of the external balconies on the northern and eastern sides of the building except for emergency egress (condition 96), and alarms are proposed for the gates on those balconies and the door leading from the meeting hall to the northern balcony (exhibit M). External lighting is required to comply with Australian Standard AS4282- Control of the Obtrusive Effects of Outdoor Lighting so as not to cause a nuisance or adverse impact on amenity of residents or motorists (condition 89). We are satisfied that there is no reasonable likelihood of overlooking of the residences in Corinth Drive, and that there are no adverse privacy impacts.

Traffic and parking

1. Expert traffic engineering evidence was provided by Mr Graham Pindar on behalf of the applicant, and Mr Craig McLaren on behalf of the Council. There are 122 car parking spaces provided on the site, and the experts agreed that this parking would meet the needs of attendees at all meetings of less than 250 people, which would generate a maximum demand of 100 cars. The applicant has provided a Traffic and Car Park Management Plan (13 November 2012) which addresses traffic and car parking for meetings between 250-400 people, and for a 900 person meeting. Regional meetings of 250-400 people would generate 100 vehicles, assuming an occupancy rate of 2.5 to 4 persons per vehicle. For 900 person meetings, parking would be available on site for up to 488 attendees at the rate of 4 persons per vehicle, with the remaining attendees being transported by bus or taxi. Buses are to pick up and return passengers to the Darkes Forest Campus some 20km away. Mr McLaren and Mr Pindar agreed that during major events operations would need to be in accordance with the Traffic and Parking Management Plan (exhibit A), which would need to be reviewed on an ongoing basis. They agreed that for all normal operations the 122 available on-site parking spaces would be sufficient to accommodate the peak demands, and that subject to a condition limiting patron numbers and car occupancy outcomes there is spare on-site parking that can be used should the need arise; they agreed that the 122 spaces are more convenient for use than any on street residential parking in the locality.

1. Mr McLaren and Mr Pindar agreed that bus parking on-site should not occur during the major 900 person event as buses would park off-site, and would be moderate during events up to 400 persons and could be accommodated within the indented bus bays. They agreed that no on-street parking would occur, and that access for emergency services would not be impeded.

1. Mr McLaren and Mr Pindar agreed that work should be done to improve safety at the intersection of Forum Drive South and Corinth Road to provide barrier lines on all approaches, no stopping restrictions, edgelines and a stop sign in Forum Drive.

1. Mr McLaren and Mr Pindar agreed that on the basis of the evidence of the layered bushfire strategy which is satisfactory to the RFS, and which does not result in the reasonable likelihood of church members needing to evacuate at the same time as local residents, there were no resulting traffic issues concerning bushfire risk and management.

1. We accept this evidence, and are satisfied that subject to the proposed conditions which reflect the traffic management and parking provisions agreed between the experts, the proposed development will cater for the parking needs of users, without requiring on-street parking; and that there is not a reasonable likelihood of users of the facility needing to be evacuated at the same time as local residents in an emergency. We accept the agreed expert evidence that the proposed works to the intersection of Forum Drive South and Corinth Road will improve safety at that intersection and thereby assist in mitigating the impacts of additional vehicle movements. The proposed conditions include a requirement for the applicant to undertake the agreed work subject to the approval of the Sutherland Traffic Committee (condition 79A). The proposed conditions incorporate the agreed traffic management and parking provisions, including restrictions on the number of attendees for scheduled meeting times (condition 86), limits on the number of wedding and funeral functions, the number of attendees, and timing of arrival and departure of vehicles (condition 88), traffic and parking management, including the management of buses, and recording of details of numbers of attendees and vehicles for meetings of 400 or more persons (condition 103).

1. The remaining issue in dispute concerns the impact of increased traffic volumes in the surrounding streets, and whether it is out of character and will result in an unacceptable impact on the amenity of nearby residences. The Council's contentions were prefaced in relation to the anticipated number of vehicles for the annual 900 person event; however the objector evidence raised concerns as to the impact of traffic and vehicle movements more generally, and cl 50(2)(c) of the LEP requires consideration of the extent to which the residential amenity of the locality will be protected from detrimental traffic-related impacts and noise associated with the development. Expert evidence was given on this issue by the traffic engineers, and by the planners.

1. Mr Pindar and Mr McLaren agreed that Forum Drive South is classified as being between an access way, for which the Roads and Maritime Service (RMS) maximum peak hour volume is 100 vehicles per hour, and a local street, for which the environmental goal is 200 vehicles per hour, and the maximum volume is 300 per hour. Both agreed that there is no issue as to the capacity of the road to cope with the increased vehicle movements generated by the development. Both agreed that the road is 9m wide, and that even if it were parked out on the length of the road there would remain effectively a 5m carriageway which would be sufficient for two way flow, with a degree of caution.

1. Based on traffic surveys conducted by Mr McLaren (exhibit 11), Mr Pindar plotted the additional vehicle traffic likely to be generated for attendances at each of the regular scheduled meetings (exhibit L). Mr Pindar estimated that the early Sunday morning meeting would generate traffic before 6.00am when there is presently no traffic, with up to 15 cars travelling to and returning from that meeting. There would be a significant increase in vehicle movements at other times, with up to 100 vehicles travelling both ways for the three-weekly Sunday meeting of 400 people from 10.30am-11.30am, up to 62 vehicles travelling both ways for the three-weekly Sunday meeting of 250 people from 5.00pm-6.00pm, up to 50 vehicles travelling both ways for the four-weekly Saturday meeting of 130 people from 8.00am-9.00am, and up to 100 vehicles travelling both ways for the weekly Thursday meeting of 250 people from 6.15pm-7.15pm. Mr McLaren agreed with Mr Pindar's methodology and with his estimated vehicle movements. Mr Pindar agreed that there is significantly less traffic presently using the road than the RMS guidelines would suggest, and that while the absolute traffic level would still be low, the relative level would be higher.

1. Ms Pinfold and Mr Fletcher agreed that the additional noise from the increased traffic would not exceed the applicable standards, however they disagreed on the amenity impacts of the additional vehicle movements. Ms Pinfold's evidence was that there would be a significant change in the amount of noise which the residents would hear, and a significant change in the volume of cars. The proposed development is a regional scale place of public worship with a larger capacity than existing places of public worship in residential areas of Sutherland Shire, with its heaviest period of utilisation occurring after normal working hours at times when residents are more likely to be at home. In her opinion the increased traffic volumes would contribute to a change in character of the street from a quiet dead end street serving local residents perceived as safe to function as an extension of their recreational spaces, to one providing regular access to a regional facility. Mr Fletcher agreed that the 6.00am Sunday meeting falls within the period considered as night for acoustic assessment purposes, and there is a requirement to consider sleep disturbance during that period. Mr Fletcher accepted that there would be an appreciable change.

1. In considering the amenity impacts of the increased vehicle movements and traffic, it is relevant to note the context. Forum Drive South, where the proposed vehicular entry to the site is located, is a no-through road that, in the absence of any development on the site, presently serves only the low density development in the locality. We accept that the development will add significant volumes of traffic on weekends and after hours on weeknights in a locality that currently experiences very low traffic volumes. We accept, based on the objector evidence and that of Ms Pinfold, that the increased traffic volumes would contribute to a change in character of the street, in particular through restricting the use of front lawns by children. We accept that the increase in traffic will be a change experienced by residents, and find, based on the evidence of the objectors and that of the traffic experts in terms of the relative level of traffic, that it will impact on amenity, using that term in the sense in which it was used by Sugerman J in Vacuum Oil Company Pty Ltd v Ashfield Municipal Council (1956) 2 LGRA 10 at 11 to mean not simply negative factors of freedom from physical discomfort, but those elements that make for a comfortable and pleasant life, and in the wide and flexible sense in which it was used by Lloyd J in New Century at [53]-[54] to include the residents' subjective perception of their locality.

1. We accept the evidence of Mr Fletcher that the increase in traffic volume will be intermittent, and that while Sunday would be the busiest day, that would be expected for a place of public worship. The applicant proposes to alert local residents with a timetable for the larger events that are not scheduled each week, namely Saturday 8.00am-9.00am every four weeks, and the three-weekly Sunday regional events, and proposed condition 108 requires provision of a timetable quarterly in advance. We accept that the early morning meeting on Sunday will generate vehicle movements at a time when Mr McLaren's survey showed no vehicle movements and when only very few vehicle movements would generally be expected in a quiet residential area. However, the estimated number of vehicles at that time is small, and the proposed conditions include noise mitigation arrangements for the entrance gate to minimise noise to surrounding residents early on Sunday mornings (condition 110). The proposed conditions, including the notification of scheduled events, are in our view appropriate to minimise potential adverse impacts. The proposed conditions limit the number and times of scheduled events, and the number of attendees, and any change would require further consent. The Social Impact Comment provided with the development application (exhibit A, tab 11) included letters from four residents living near the current meeting hall in Rosebery Street Heathcote. One commented that while the Brethren do have large meetings and there are many cars, "at no time do they park across driveways, rev their cars or speed up and down Rosebery Street"; another that large gatherings can involve the arrival of a number of buses "which is no more disturbing than the normal traffic on King Street". While we accept that there will be an impact on amenity, we are satisfied that the increased vehicle movements and traffic would not constitute an adverse impact on amenity sufficient to warrant refusal of the application.

Ecological issues

1. An Ecological Assessment was prepared on behalf of the applicant by Ecological Australia, dated 3 May 2012 (exhibit H). That assessment included a data audit and an on site field survey, and a tree condition survey. The assessment noted that the site constitutes vegetation in good condition with relatively low levels of disturbance and a high density of flora species, a common feature amongst similar sandstone communities; previous low density fire has occurred throughout parts of the site. There has been some slashing and vegetation clearance on the eastern boundary. The site contains important habitat components for local reptile species, mainly outcropping and loose rock, crevices and overhangs; and there are a number of hollows on the site. The assessment considered the impact on vegetation communities and threatened species of the removal of vegetation, earthworks, and construction of the internal road, and undertook an assessment of significance for each of the identified species, populations and ecological communities in accordance with s 5A of the Act (exhibit H, Appendix B), and an assessment of significance applying the Significant Impact Guidelines under the Environment Protection and Biodiversity Conservation Act 1996 (Cth). The assessment concluded that a significant impact on threatened species resulting from the development is unlikely.

1. The assessment noted that the threatened plant Melaleuca deanei occurs as a small patch comprising 13 stems or ramets, which is likely to constitute 1-2 individual plants, and which was considered a distinct local population. The area in which these plants are located is presently fenced. In consultation with the Council, the applicant proposed translocation of those plants as an ameliorative measure. The assessment concluded that implementation of a Conservation Management Plan would avoid a significant impact on the M. deanei.

1. The ecological assessment included an assessment of Darwinia diminuta and Hibbertia nitida (both Rare or Threatened Australian Plants species) undertaken by Dr Kevin Mills on behalf of the applicant, and concluded that the potential impact on those species of clearing two to four plants of the former was negligible; the two locations on the site where the Hibbertia nitida was recorded in 2001 no longer seemed to support the species.

1. The ecological assessment recommended a number of ameliorative measures, including a Soil and Water Management Plan and a Vegetation Management Plan, control of stormwater runoff, and translocation of the M. deanei. Those requirements are incorporated in the proposed conditions.

1. A Conservation Management Plan for the M. deanei has been prepared by Dr Kevin Mills (exhibit 4) including transplantation locations and methods, planting of additional seedlings, and long and short term management. A Vegetation Management Plan prepared for the site includes provision for management of the M. deanei sites. The Vegetation Plan was originally prepared in April 2012, updated in August 2012, and further amended in September 2012 (exhibit 4). Dr Mills and Mr Ian Drinnan, Senior Environmental Scientist for the Council, considered that plan following amendment of the development plans in November 2012, and expressed agreement that minor matters could be dealt with by conditions, and that the changes did not change their overall view that the Vegetation Management Plan is adequate and that the impact of the development is acceptable. In particular, they expressed agreement that the revised plans deal adequately with the translocation of the M. deanei. We accept that evidence.

1. The amended plans incorporate continued access for neighbouring residents to the National Park across a right of way on the northern part of the site. Proposed condition 76 requires creation of a right of public footway, and a right of carriageway in favour of the Council, the National Parks and Wildlife Service and Emergency Services Authorities; and proposed condition 94 provides that there be no physical or legal restrictions to prevent public access through the property to the Heathcote National Park through the approved right of public footway.

Stormwater and drainage

1. The applicant has provided a stormwater drainage strategy plan which provides for a stormwater drainage pipeline to drain the western portion of the site to connect to the existing Council stormwater drainage pipeline in Forum Drive North. The parties' experts, Mr Brian Lapham and Mr Peter Anderson, agreed that the stormwater overflow rates from the pond which ultimately flows onto National Parks land is controlled to not exceed the existing peak flowrates as required by the Office of Environment and Heritage, and that the Strategy complies with the requirements of the Office of Environment and Heritage and the Council (exhibit 14). We accept that evidence.

SEPP 1 Objection

1. The proposed building exceeds the 7.2m maximum ceiling height limit imposed by cl 33(4)(b) in an area of approximately 81sqm on the north eastern side of the building. The applicant provided an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP1), submitting that the objection is well founded because the objectives of the development standard in cl 33(4)(b) are satisfied notwithstanding the non-compliance.

1. In Wehbe v Pittwater Council (2007) 156 LGERA 446, Preston CJ held (at [37]-[40]), that the Court must be satisfied of three matters before it can uphold a SEPP 1 objection and grant development consent. Those matters are, first, that the Court is satisfied that the objection is well founded (cl 7 of SEPP 1), which places the onus on the applicant making the objection; secondly, the Court must be of the opinion that granting consent to the development is consistent with the aims of SEPP 1 as set out in cl 3 (cl 7 SEPP 1); and thirdly, the Court must be satisfied that a consideration of the matters in cl 8(a) and (b) of SEPP 1 justifies the upholding of the objection.

1. The objectives of the development standard are provided in cl 33(2):

The objectives of this clause are as follows:

(a) to ensure the scale of buildings:

(i) is consistent with the desired scale and character of the street and locality in which the buildings are located, and

(ii) complements any natural landscape setting of the buildings,

(b) to allow reasonable daylight access to all buildings and the public domain,

(c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,

(d) to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,

(e) to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings on land in those zones.

1. The proposed building complies with the 2 storey limits in cl 33(4)(a), and with the overall height limit of 9m in cl 33(4)(b)(ii). The non-conforming component of the building is towards the northern end of the building, and not adjacent to the neighbouring properties. The maximum height of the non-conforming part of the ceiling is 8.313m, a non-compliance of 1.113m. It was not in dispute that the ceiling is not visible from outside the building and the departure from the control would not be detectable when viewed from any of the adjacent residences or from the public domain. We accept the applicant's submission that it is the overall height of the building rather than the internal ceiling height that would determine whether the potential impacts identified in cl 33(2) are minimised or avoided, and whether the building would be consistent with the objectives of the development standard. We accept the applicant's submission that in circumstances where the height of the internal ceiling is not detectable outside and where the building otherwise complies with the overall building height control, variation from the ceiling height control would have no impact on the perceived scale or visual impact of the building or character of the area when viewed from outside; that due to the size of the site and the setbacks from boundaries there would be no adverse impacts on daylight access, or on views from or overshadowing of nearby properties; that those factors and the restriction of use of the balconies and the internal design will ensure no adverse impact on privacy or visual intrusion; and that the ceiling height would not be a factor in the visual impact of the building or its compatibility with the scale of the neighbouring residences.

1. We are satisfied that the objectives of the development standard are achieved, notwithstanding the non-compliance with cl 33(4)(b)(i), and on that basis compliance with the development standard is unreasonable or unnecessary. We are satisfied that the objection is well founded and that the granting of consent to the application is consistent with the aims of SEPP 1, which are to provide flexibility in the operation of planning controls in circumstances where strict compliance would be unreasonable or unnecessary or tend to hinder the objectives in s 5(a)(i) and (ii) of the Act. We are satisfied that the proposed development and non-compliance do not raise any matters of significance for State or regional environmental planning, or in relation to the public benefit in maintaining the planning controls expressed in cl 33(4)(b)(i). We are satisfied that it is appropriate to uphold the SEPP 1 objection, and that consent can be granted.

Conclusion

1. The requirements of s79BA of the Act are met, and the SEPP 1 objection to compliance with the ceiling height control is upheld, which means that there is power to grant consent to the proposed development.

1. In considering whether the development should be approved, we note that the development has been amended during the course of these proceedings to respond to many of the issues raised by the Council and its experts, and by the objectors. Those amendments include the changes to the undercroft area to provide for an additional safe refuge area for occupants of the meeting hall during a bushfire. Those changes, together with the requirements in the Bushfire Management Plan and the conditions that there be no occupation of the premises for any scheduled event, wedding or funeral on days when a Total Fire Ban is in force, days of forecast Extreme or Catastrophic Fire Danger, or when directed by the RFS (condition 87), and specification of the measures to be in place during required times of non-occupation including locked gates, signs and security monitoring (condition 104), address the concerns as to the potential need to evacuate large numbers of people from the meeting hall at the same time as local residents. The proposed building is required to be constructed to meet, and exceed, BAL 40 requirements. The proposed conditions incorporate provisions for construction and ongoing management of the site and the use of the meeting hall, including traffic and parking, and bushfire safety. We are satisfied that the development as now proposed and subject to the conditions as proposed is consistent with the zone objective of minimising the risk to life, property and the environment from bush fire, both for the site and for the neighbouring residences. The proposed development would, through the management of the entire site as an IPA and the provision of the access roadway for use by emergency vehicles, assist in bush fire safety for the surrounding residents. We are satisfied that, to the extent possible where management of the whole site as an IPA is required, and having regard to the assessment of ecological impacts, the proposed development is consistent with the zone objectives of allowing development of a scale and nature that complements the natural surroundings, and protects existing bushland and natural features.

1. The strong preference expressed by the neighbouring residents was for the site to remain in its natural vegetated state, or to be incorporated into the national park. However, the site is zoned to permit development for residential purposes and for some non-residential purposes including that proposed. It is clear that the proposed development, as would any development on the site for residential purposes or for a non-residential use permissible in the Environmental Housing (Bushland) zone, will have an impact on the amenity of the locality. We are satisfied that while there are identified likely adverse impacts of the development, they are not such that consent should be refused. Subject to the qualification below, we are satisfied that the conditions proposed are appropriate to mitigate or minimise likely adverse impacts. The Court is required to assume that the conditions will be complied with.

1. We are of the view that one amendment needs to be made to the proposed conditions, to require that the Bushfire Emergency Evacuation Plan, the bushfire audit report, and the Traffic Plan of Management, required by conditions 3 and 103, should be publicly available, preferably through the Council. That would enhance the operation and effectiveness of the resident liaison committee required under proposed condition 106. Subject to the amendment of the conditions to incorporate that requirement, we are satisfied that development consent should be granted.

1. The parties are to provide an agreed condition to reflect the finding in paragraph [85] by 8 April 2013, following which final orders will be made in chambers.

Linda Pearson   Bob Smith

Commissioner of the Court  Acting Commissioner of the Court

Decision last updated: 28 March 2013