Iontaobhas Pty Ltd v Hawkesbury City Council - [2021] NSWLEC 1015

Land and Environment Court

New South Wales

Medium Neutral Citation: Iontaobhas Pty Ltd v Hawkesbury City Council [2021] NSWLEC 1015
Hearing dates: 16-19 November 10 December 2020
Date of orders: 13 January 2021
Decision date: 13 January 2021
Jurisdiction: Class 1
Before: Morris AC
Decision:
The Orders of the Court are:
(1) The appeal is dismissed.
(2) Development Application 0308/2019 for a six lot subdivision of land comprising Lot 28 DP 1184227 and known as No. 35 Hadden Ridge Road, Wilberforce is refused consent.
(3) The exhibits, other than exhibits A and 1, are returned.

Catchwords:
DEVELOPMENT APPLICATION – subdivision – impact on wetlands – endangered ecological communities

Legislation Cited:
Coastal Management Act 2016
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Hawksbury Local Environmental Plan 2012
Rural Fires Act 1997
State Environmental Planning Policy (Coastal Management) 2018
State Environmental Planning Policy No 55—Remediation of Land
Sydney Regional Environmental Plan No. 20 - Hawksbury Nepean River (No 2 – 1997)

Texts Cited:
Australian/New Zealand Standard ASNZS 1547:2012 On-site domestic wastewater management
Hawkesbury City Council, Development of Flood Liable Land Policy 2012
Hawkesbury City Council, Draft Flood Policy 2020
Hawkesbury Development Control Plan 2002
NSW Rural Fire Service, Planning for Bushfire Protection 2019

Category: Principal judgment
Parties: Iontaobhas Pty Ltd (First Applicant)
MOC Pty Ltd (Second Applicant)
David O’Connor (Third Applicant)
Hawkesbury City Council (Respondent)
Representation:
Counsel:
C Leggat SC (Applicants)
A Seton (Solicitor) (Respondent)
Solicitors:
Colin Biggers & Paisley Lawyers (Applicants)
Marsdens Law Group (Respondent)

File Number(s): 2019/365266
Publication restriction: Nil

Judgment

Development Application 0308/2019 was lodged with Hawkesbury City Council on 29 July 2019 seeking consent to subdivide an existing lot into 5 lots. The Council did not determine the application and the applicant is appealing that decision under the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The applicant was granted leave to amend the application on 1 August 2020. The amended application now proposes a 6 lot subdivision and modification and release of existing covenants that apply to the land.
The contentions in the case are detailed in the Council’s Amended Statement of Facts and Contentions filed on 7 October 2020.

The site and its context

The site is currently described as Lot 28 DP 1184227 and known as No. 35 Hadden Ridge Road, Wilberforce. It is a large rural allotment with an area of 93.9ha and is located on the northern side of Hadden Ridge Rd
It is irregular in shape with its primary frontage to Hadden Ridge Rd. There are three access handles that provide narrow frontages to Royerdale Place to the north of the site.
The site is currently separated into farm paddocks containing existing dams and patches of native canopy vegetation. It consists of low-lying floodplain associated with the Howes Creek wetland with steep sandstone slopes to the north and relatively gentle sandstone slopes with some local variations in slope in the south.
The prevailing character of development within the locality is one and two storey dwellings on large allotments within an agricultural setting.
The site is situated approximately 5.5 kilometres from Wilberforce and 13 kilometres from Windsor.
The properties within the immediate vicinity of the subject site are situated in Zone RU1 Primary Production and comprise predominantly larger sized rural/ agricultural allotments with low density residences with Hadden Farm operated as a horse spelling agistment property immediately to the west.
The site and surrounds are not serviced by reticulated water or sewerage.

Background and the proposal

The allotment the subject of the application is the result of three subdivisions approved by the council in 2010 which created 36 allotments including 33 lots of 1 hectare in area for rural residential use and three residual lots for agricultural use, with the subject site being one of those residual lots. Prior to the subdivisions, the site comprised part of Hadden Farm. Development Consent DA0037/10 has been modified on a number of occasions and it is this consent that created Lot 28, described as the “Farm Lot”. The consent required preparation of a Farm Management Plan, Wetland Management Plan and Vegetation Management Plan (condition 45). Condition 47 reads as follows:

“The area of the Farm Lot (Shown as lot 28 on the approved stamped plans) which is located between the wetland and the boundaries of Lots 1 and 17 and generally corresponding with the area edged in yellow and marked ‘2’ in Figure 2 to the Flora and Fauna Assessment Proposed Subdivision Hadden Farm Royerdale Place, East Kurrajong, Travers bushfire and ecology, January 2010, Ref: 9075F shall be defined as a conservation area on a plan and annexed to the Farm Management Plan, Wetland Management Plan and the Vegetation Management Plan to protect the identified Endangered Ecological Community and aboriginal sites and to provide a buffer zone between the wetland and future residential development.”

Various conditions required implementation of the plans in perpetuity, that future development be carried out in accordance with the Flora and Fauna Assessment and prohibition of development within the Conservation zone. These were by way of restrictions on the use of the land.
The application before the Court is to subdivide Lot 28 into six lots. Proposed Lots 1-5 are long narrow allotments that run in a north south orientation at the western side of the site. Proposed lot 1 would contain an access handle that runs from the existing bend in Hadden Ridge Rd along the southern boundary of the site. That handle would serve as a right-of-way for access to proposed lot 2. The applicant acknowledged during the hearing that the handle would also be required to include an easement for services. Part of proposed lot 3 would front that handle with frontage to Hadden Ridge Road also available. Proposed Lots 4, 5 and 6 all have frontage to Hadden Ridge Road. Lots 1-5 have areas of 10ha or similar whereas Lot 6 is the largest allotment at the eastern portion of the existing allotment with an area of 43.2ha. Lots 1, 5 and 6 would include the access handle frontage to Roylerdale Road described above however no works are proposed within that handle to facilitate vehicular access.
A building envelope with an approximate area of 4,900m² has been nominated on each lot. That envelope would allow for their construction of dwellings, sheds, swimming pools, effluent disposal/treatment areas and landscaping.
A plan of the proposed allotments is provided below.

The site is currently burdened by a number of covenants and restrictions (some as a result of the development consents issued for the previous subdivisions of Hadden Farm). The application sought modification or release of a number of these and, during the hearing was granted leave to amend the application to include additional provisions. Those matters now the subject of the application are:

Positive covenant numbered 2 in DP1154540: A Farm Management plan prepared by Travers Bushfire and Ecology dated August 2010 reference number A 10099, is to be implemented on the lot burdened to the satisfaction of Council; the application seeks modification of that covenant to exclude the site;

Positive covenant numbered 2 in DP 1165082 is modified to exclude Lot 28 DP1184227 from the burdened land with similar provisions to those in DP1154540;

Positive covenant numbered 2 in DP 1184227 is released and has the same effect as (a) and (b) above;

Restriction on the use of land numbered 7 in DP1165082: No development is permitted within the conservation zone identified in the Farm Management Plan prepared by Travers Bushfire and Ecology drawing no. A 10099, dated 20 September 2011, Amendment B;

Restriction on Use of Land numbered 7 in DP 1184227 is released; The terms of this restriction read as follows: No development is permitted within the Conservation Area Zone identified in the FMP prepared by Travis bushfire and ecology drawing number A10099, dated 20/09/11 Amendment B;

Right of access 18 wide numbered 8 in DP1184227: Right of Access as described in Section 181 A Part 14 Schedule 8 of the Conveyancing Act 1919; this is a right of carriageway in favour of the council that provides a link between the eastern end of Hadden Ridge Road to Stannix Park Lane. The access also affects the adjoining Lot 27;

Easement for overhead power lines numbered 9 in the plan: the terms set out in memorandum number 9262884 registered at Land and Property Information NSW, and incorporated in this document, subject to changing Integral Energy Australia to Endeavour Energy in clause 5.1.

The applicant seeks to extinguish the positive covenants above as they apply to the site, on the basis that the agricultural use, namely grazing of cattle, will no longer be carried out on the site by the applicant (pursuant to the proposal) and a new Vegetation Management Plan (VMP) is proposed to replace the Farm Management Plan (FMP) and associated documents.
To protects wetlands and endangered ecological communities on the site, the applicant relies on the VMP. That document was amended during the hearing and now forms part of Exhibit F. Those amendments resulted in the Council raising the issue of Bushfire, a matter that had been addressed previously however, due to the terms of the VMP adding vegetation in areas that are bushfire prone, consideration of bushfire risk was required.
The Court granted leave to the applicant during the hearing to amend the application including the revised VMP subject to payment of the Council’s costs thrown away pursuant to the provisions of s 8.15(3) of the EPA Act.
The objectives of the VMP detailed at s 1.2 are to outline mitigation activities to conserve and protect the biophysical, hydrological and ecological integrity of the Howes Creek wetland; provide strategies to protect, stabilise and enhance the degraded River Flat Eucalypt Forest endangered ecological community (EEC) and Shale Sandstone Transition Forest Critically endangered ecological community (CEEC); protect, stabilise and enhance the vegetation and habitats within a riparian buffer to Howes Creek wetland, providing habitat connectivity and a protective buffer for indirect impacts associated with development of the lots; outline weed management strategies to protect an improve the ecological values of the native vegetation of the site; describe measures to limit the impact of development on existing native vegetation and habitats; establish guidelines for the appropriate use and management of the subdivision by future landholders and outline water quality monitoring requirements for the Howes Creek wetland.
A Bushfire Asset Protection Zone (APZ) has been set for an approximate 50 metre area surrounding the building envelopes. Fencing has been positioned to delineate the usable residential area and curtilage and separate that area from the remanent native vegetation and wetland areas that would form a part of the allotments.
The VMP adopts a number of different zones reflective of the different conservation areas and legislative provisions and proposes the implementation of planting regimes and management practises within those zones. A plan which shows the extent of those zones and the bushfire asset protection zones is provided below.

Key management actions are proposed within each of the zones. Zone 1 applies to the Howes Creek Wetland where it is proposed to remove grazing and manage aquatic weed species. Zone 2 is the Southern Wetland Buffer where restoration of the EEC including removal of grazing and associated fencing, regeneration, planting and weed and pest management is proposed. Zone 3, the Outer Wetland Buffer would be managed by the removal of grazing, regeneration, weed management, and habitat tree protection. Zone 4 is the fenced residential zone where development activities would occur with anticipation of possible loss of dead habitat trees over time and conservation works in the mapped Woodland areas on lots 5 and 6.
Zone 5 is the northern wetland buffer and the additional areas to its north with a primary weed control programme and ongoing maintenance for target weeds proposed. Zone 6A is the Woodland Remnants Conservation Area with conservation works proposed to conserve and enhance ecological condition. Zone 6B is the Woodland Restoration Conservation Area with conservation works to restore an enhance the ecological condition of that area proposed.
The VMP provides planting guides and maintenance programs over a five year period. The applicant’s preferred position is that all of the works the subject of the VMP are carried out by individual lot owners on purchase of the property and within the first two years of ownership of that property. Years three to five of the plan relate more to maintenance than additional planting. As the plan was written, the VMP would expire after five years however, the applicant has indicated that should the Court think fit, it could be extended in perpetuity. This would require consent conditions to reflect that requirement and amendment to the terms of the VMP. I deal with that later in this judgement. As a fallback position, the applicant has indicated that it would be prepared to carry out the first two years work prior to release of a subdivision certificate and then leave the remaining implementation of the VMP to individual lot owners.

The planning controls

The site is zoned RU1 Primary Production pursuant to the provisions of Hawksbury Local Environmental Plan 2012 (LEP). Clause 2.3(2) requires a consent authority to have regard to the objectives for development in a zone when determining a development application. The objectives of the RU1 Zone are:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To encourage diversity in primary industry enterprises and systems appropriate for the area.

• To minimise the fragmentation and alienation of resource lands.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To encourage agricultural activities that do not rely on highly fertile land.

• To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways.

• To promote the conservation and enhancement of local native vegetation including the habitat of threatened species, populations and ecological communities by encouraging development to occur in areas already cleared of vegetation.

• To ensure that development retains or enhances existing landscape values including a distinctive agricultural component.

• To ensure that development does not detract from the existing rural character or create unreasonable demands for the provision or extension of public amenities and services.

Consent is required for subdivision pursuant to cl 2.6 of the LEP. Clause 4.1 establishes a minimum lot size of 10ha and has the following objectives:

(a) to ensure that the pattern of lots created by subdivision and the location of any buildings on those lots will minimise the impact on any threatened species, populations or endangered ecological community or regionally significant wetland, waterways and groundwater as well as any agricultural activity in the vicinity,

(b) to ensure that each lot created in a subdivision contains a suitable area for the erection of a dwelling house, an appropriate asset protection zone relating to bush fire hazard and a location for on-site effluent disposal if sewerage is not available,

(c) to ensure a ratio between the depth of the lot and the frontage of the lot that is satisfactory having regard to the purpose for which the lot is to be used.

Each of the proposed lots has an area of 10ha or greater and therefore the application is compliant with the minimum lot size development standard. The Council contends the subdivision does not achieve the objectives of the standard.
Community title subdivision would be permitted on the land pursuant to cl 4.1AA provided the minimum lot size is met. The application is for a Torrens Title subdivision and therefore the provisions of this clause are not relevant to the case.
Clause 4.1B establishes additional requirements for subdivision in certain zones including the RU1 zone. Subclause (2) is in the following form:

(2) Development consent must not be granted to a subdivision of land to which this clause applies unless—

(a) the pattern of lots created by the subdivision and the location of any buildings on those lots is not likely to have a significant impact on any threatened species, populations or endangered ecological community or regionally significant wetland, waterways, groundwater or agricultural activities in the locality, and

(b) the consent authority is satisfied that each lot to be created contains a suitable area for a dwelling house, an appropriate asset protection zone relating to bush fire hazard and an adequate sewage management system if sewerage is not available, and

(c) if sewerage is not available—the consent authority has considered a geotechnical assessment that demonstrates the land is adequate for the on-site disposal of effluent, and

(d) the consent authority is satisfied that there is a satisfactory ratio between the depth of each lot and the frontage of each lot, having regard to the purpose for which the lot is to be used.

The site is located within the floodplain of the Hawksbury Nepean River backwater as well as being affected by rainfall runoff associated with the catchment of Howes Creek. The site is mapped as flood prone in the Hawksbury Nepean Regional Flood Study. For this reason, the provisions of cll 4.2B and 6.3 of the LEP apply to the proposed subdivision. Subclauses 4.2B(2) and (3) are in the following form:

(2) Development consent must not be granted for a subdivision to which this clause applies unless the consent authority is satisfied that there is an area of land on the lot that is above flood planning level and is sufficient for the erection of a dwelling house.

(3) For the purposes of subclause (2), an area of land is above flood planning level if the land is above the level of a 1:100 ARI (average recurrent interval) flood event (whether the level is a natural surface level or a level achieved by filling carried out with a previous development consent).

Clause 6.3 is in the following form:

(1) The objectives of this clause are as follows—

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change,

(2) This clause applies to land at or below the flood planning level.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a) is compatible with the flood hazard of the land, and

(b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

(4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0), published by the NSW Government in April 2005, unless it is otherwise defined in this clause.

(5) In this clause—

flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event.

Clause 6.1 Acid Sulphate soils is also relevant however due to the class of soil, no issues arise in the application due to the limited extent of excavation proposed.
The site is identified as “Significant vegetation” and “Connectivity between significant vegetation” on the Terrestrial Biodiversity Map to which cl 6.4 of the LEP applies. The terms of subclauses 3 and 4 are relevant to the application and are in the following form:

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider—

(a) whether the development—

(i) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and

(ii) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and

(iii) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(iv) is likely to have any adverse impact on the habitat elements providing connectivity on the land.

(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or

Clause 6.5 of the LEP applies to Wetlands and the site is also identified on the map to which this clause applies. Subclauses 3 and 4 are in the following form:

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider—

(a) whether or not the development is likely to have any significant adverse impact on the following—

(i) the condition and significance of the existing native fauna and flora on the land,

(ii) the provision and quality of habitats on the land for indigenous and migratory species,

(iii) the surface and groundwater characteristics of the land, including water quality, natural water flows and salinity,

(iv) the growth and survival of native fauna and flora,

(v) any wetlands in the vicinity of the development, and

(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

Clause 6.7 is in the following form:

6.7 Essential services

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required—

(a) the supply of water,

(b) the supply of electricity,

(d) stormwater drainage or on-site conservation,

(e) suitable road access.

The site is mapped as the bushfire prone land on the map maintained by the NSW Rural Fire Service (RFS). The proposed development is Integrated Development within the meaning of s 4. 6 of the EPA Act as a bushfire safety authority is required pursuant to s 100B of the Rural Fires Act 1997.
The original application was referred to the RFS and it issued General Terms of Approval and a bush fire safety authority subject to conditions of consent. The amended application had not been the subject of review by the RFS at the time the hearing commenced, and this matter became a contention in the case due to the additional planting proposed under the VMP within bushfire prone areas.
The amended application had however been referred to RFS and a reply was received after the hearing had been completed. The Applicant applied to reopen the matter and this application was heard on 10 December and allowed, the tender of the more recent letter from the RFS being admitted. The letter from the RFS did not differ from the original document received by the Council and the issues raised by the bushfire experts and discussed below were not clarified.
The proposed development is Designated Development for the purposes of the EPA Act and the Environmental Planning and Assessment Regulation 2000 pursuant to cl 10(2) of State Environmental Planning Policy (Coastal Management) 2018 (SEPP2018) because it comprises development for which consent is required on land identified as coastal wetlands on the Coastal Wetlands and Littoral Rainforests Area Map. The provisions of the Coastal Management Act 2016 (CMA) apply to the site with cl 6 particularly relevant to the application. That clause is as follows:

6 Coastal wetlands and littoral rainforests area

(1) The coastal wetlands and littoral rainforests area means the land identified by a State environmental planning policy to be the coastal wetlands and littoral rainforests area for the purposes of this Act, being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests and land adjoining those features.

(2) The management objectives for the coastal wetlands and littoral rainforests area are as follows—

(a) to protect coastal wetlands and littoral rainforests in their natural state, including their biological diversity and ecosystem integrity,

(b) to promote the rehabilitation and restoration of degraded coastal wetlands and littoral rainforests,

(c) to improve the resilience of coastal wetlands and littoral rainforests to the impacts of climate change, including opportunities for migration,

(d) to support the social and cultural values of coastal wetlands and littoral rainforests,

(e) to promote the objectives of State policies and programs for wetlands or littoral rainforest management.

An Environmental Impact Statement was prepared in association with the development application and concludes that the subdivision represents rational, orderly, economic and sustainable use of the land. The Council submits the amended application does not have regard to the Secretary’s Environmental Assessment Requirements (SEARs) issued on 10 August 2018 As those requirements were issued on the basis of the original application that proposed the retention of all sensitive areas within one allotment rather than dividing those areas amongst the proposed 6 lots.
The amended subdivision pattern results in all allotments containing parts of the site associated with Howes Creek wetland which is defined as “coastal wetlands” and “proximity area for coastal wetlands” on the coastal wetlands and literal rainforests area map referred to in cl 6 of SEPP2018. Proposed lots 3, 4, 5 and 6 will contain land mapped as proximity area for coastal wetlands. An extract from the Coastal Wetlands and Littoral Rainforests Area Map with the subject site outlined in yellow, the coastal wetland area marked in blue and the proximity area for the coastal wetland hatched in blue is provided below.

The part of the site comprising mapped coastal wetlands is approximately 40 hectares, while the part of the site comprising proximity areas for coastal wetlands is approximately 17 hectares, including a further 9.1 hectares situated to the north of this site.
Clause 10(4) of SEPP2018 provides:

A consent authority must not grant consent for development referred to in subclause (1) unless the consent authority is satisfied that sufficient measures have been, or will be, taken to protect, and where possible enhance, the biophysical, hydrological and ecological integrity of the coastal wetland or littoral rainforest.

Clause 11(1) of SEPP2018 provides for land identified as proximity area for coastal wetlands the following:

(1) Development consent must not be granted to development on land identified as “proximity area for coastal wetlands” or “proximity area for littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map unless the consent authority is satisfied that the proposed development will not significantly impact on—

(a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or

(b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.

Sydney Regional Environmental Plan No. 20 - Hawksbury Nepean River (No 2 – 1997) (SREP20) applies to the land. Clause 4 applies and reads as follows:

4 Application of general planning considerations, specific planning policies and recommended strategies

(1) The general planning considerations set out in clause 5, and the specific planning policies and related recommended strategies set out in clause 6 which are applicable to the proposed development, must be taken into consideration:

(a) by a consent authority determining an application for consent to the carrying out of development on land to which this plan applies, and

(b) by a person, company, public authority or a company State owned corporation proposing to carry out development which does not require development consent.

(2) Those considerations, policies and strategies should be taken into consideration in the preparation of each environmental planning instrument and development control plan that applies to land to which this plan applies.

The terms of cll 5 and 6 relevant to the contentions are in the following form:

5 General planning considerations

The general planning considerations relevant for this Part are:

(a) the aim of this plan, and

(b) the strategies listed in the Action Plan of the Hawkesbury-Nepean Environmental Planning Strategy, and

(d) the relationship between the different impacts of the development or other proposal and the environment, and how those impacts will be addressed and monitored.

6 Specific planning policies and recommended strategies

The specific planning policies and recommended strategies for this plan are as follows:

(1) Total catchment management

Policy: Total catchment management is to be integrated with environmental planning for the catchment.

Strategies:

(a) Refer the application or other proposal for comment to the councils of each adjacent or downstream local government area which is likely to suffer a significant adverse environmental effect from the proposal.

(b) Consider the impact of the development concerned on the catchment.

(2) Environmentally sensitive areas

Policy: The environmental quality of environmentally sensitive areas must be protected and enhanced through careful control of future land use changes and through management and (where necessary) remediation of existing uses.

Note—

Environmentally sensitive areas in the Hawkesbury-Nepean catchment are: the river, riparian land, escarpments and other scenic areas, conservation area subcatchments, national parks and nature reserves, wetlands, other significant floral and faunal habitats and corridors, and known and potential acid sulphate soils.

Strategies:

(a) Rehabilitate parts of the riverine corridor from which sand, gravel or soil are extracted so that attached aquatic plant beds are replaced and water quality and faunal habitats improved.

(b) Minimise adverse impacts on water quality, aquatic habitats, riverine vegetation and bank stability.

(c) Minimise direct and indirect adverse impacts on land reserved or dedicated under the National Parks and Wildlife Act 1974 or the Forestry Act 1916 and conservation area sub-catchments in order to protect water quality and biodiversity.

(d) Protect wetlands (including upland wetlands) from future development and from the impacts of land use within their catchments.

(e) Consider the need to include buffer zones (such as adequate fire radiation zones) for proposals on land adjacent to land reserved or dedicated under the National Parks and Wildlife Act 1974 or the Forestry Act 1916.

(f) Consider the views of the Director-General of National Parks and Wildlife about proposals for land adjacent to land reserved or dedicated under the National Parks and Wildlife Act 1974.

(g) Consideration should be given to the impact of the development concerned on the water table and the formation of acid sulphate soils.

(h) New development in conservation area sub-catchments should be located in areas that are already cleared.

(3) Water quality

Policy: Future development must not prejudice the achievement of the goals of use of the river for primary contact recreation (being recreational activities involving direct water contact, such as swimming) and aquatic ecosystem protection in the river system. If the quality of the receiving waters does not currently allow these uses, the current water quality must be maintained, or improved, so as not to jeopardise the achievement of the goals in the future. When water quality goals are set by the Government these are to be the goals to be achieved under this policy.

Note—

Aquatic ecosystems and primary contact recreation have the same meanings as in the document entitled Australian Water Quality Guidelines for Fresh and Marine Waters, published in 1992 by the Australian and New Zealand Environment and Conservation Council.

Strategies:

(a) Quantify, and assess the likely impact of, any predicted increase in pollutant loads on receiving waters.

(b) Consider the need to ensure that water quality goals for primary contact recreation and aquatic ecosystem protection are achieved and monitored.

(c) Approve development involving primary contact recreation or the withdrawal of water from the river for human contact (not involving water treatment), such as showers, only in locations where water quality is suitable (regardless of water temperature).

(d) Do not carry out development involving on-site disposal of sewage effluent if it will adversely affect the water quality of the river or groundwater. Have due regard to the nature and size of the site.

(e) Develop in accordance with the land capability of the site and do not cause land degradation.

(f) Consider the need for an Erosion and Sediment Control Plan (to be in place at the commencement of development) where the development concerned involves the disturbance of soil.

(g) Minimise or eliminate point source and diffuse source pollution by the use of best management practices.

(h) Site and orientate development appropriately to ensure bank stability. Plant appropriate native vegetation along banks of the river and tributaries of the river, but not so as to prevent or inhibit the growth of aquatic plants in the river, and consider the need for a buffer of native vegetation.

(i) Consider the impact of the removal of water from the river or from groundwater sources associated with the development concerned.

(j) Protect the habitat of native aquatic plants.

(4) Water quantity

Policy: Aquatic ecosystems must not be adversely affected by development which changes the flow characteristics of surface or groundwater in the catchment.

Strategies:

(a) Future development must be consistent with the interim or final river flow objectives that are set for the time being by the Government.

(b) Ensure the amount of stormwater run-off from a site and the rate at which it leaves the site does not significantly increase as a result of development. Encourage on-site stormwater retention, infiltration and (if appropriate) reuse.

(c) Consider the need for restricting or controlling development requiring the withdrawal or impoundment of water because of the effect on the total water budget of the river.

(d) Consider the impact of development on the level and quality of the water table……

(6) Flora and fauna

Policy: Manage flora and fauna communities so that the diversity of species and genetics within the catchment is conserved and enhanced.

Strategies, generally:

(a) Conserve and, where appropriate, enhance flora and fauna communities, particularly threatened species, populations and ecological communities, aquatic habitats, wetland flora, rare flora and fauna, riverine flora, flora with heritage value, habitats for indigenous and migratory species of fauna, and existing or potential fauna corridors.

(b) Locate structures where possible in areas which are already cleared or disturbed instead of clearing or disturbing further land.

(c) Minimise adverse environmental impacts, protect existing habitat and, where appropriate, restore habitat values by the use of management practices.

(d) Consider the impact on ecological processes, such as waste assimilation and nutrient cycling.

(e) Consider the range of flora and fauna inhabiting the site of the development concerned and the surrounding land, including threatened species and migratory species, and the impact of the proposal on the survival of threatened species, populations and ecological communities, both in the short and longer terms.

(f) Consider the need to provide and manage buffers, adequate fire radiation zones and building setbacks from significant flora and fauna habitat areas.

(g) Consider the need to control access to flora and fauna habitat areas.

(h) Consider the need to maintain corridors for fish passage, and protect spawning grounds and gravel beds.

Strategies for wetlands:

(i) Maintain the ability of wetlands to improve the quality of water entering the river through the filtering of sediments and the absorption of nutrients.

(j) Maintain the ability of wetlands to stabilise soils and reduce bank erosion.

(k) Maintain the ability of wetlands to reduce the impact of flooding downstream through the retention of floodwaters.

(l) Maintain a variety of wetland flora and fauna species in the region and consider the scarcity of particular species on a national basis.

(m) Encourage the appropriate management of wetlands, including monitoring and weed control.

(n) Provide opportunities for recreation, scientific research and education where they are compatible with the conservation of wetlands.

(o) Consider the need to protect and improve the quality and quantity of surface water and groundwater entering wetlands by controlling development in the catchment of wetlands.

(p) Consider the desirability of protecting any wetlands of local significance which are not included on the map.

(q) Consider the desirability of protecting or, if necessary, actively managing, constructed wetlands if they have significant conservation values or make a significant contribution to improvements in water quality…….

(8) Agriculture/aquaculture and fishing

Policy: Agriculture must be planned and managed to minimise adverse environmental impacts and be protected from adverse impacts of other forms of development.

Note—

Refer also to items (1)–(7) and (12) for relevant strategies.

Strategies:

(a) Give priority to agricultural production in rural zones.

(b) Ensure zone objectives and minimum lot sizes support the continued agricultural use of Class 1, 2 and 3 Agricultural Land (as defined in the Department of Agriculture’s Agricultural Land Classification Atlas) and of any other rural land that is currently sustaining agricultural production.

(c) Incorporate effective separation between intensive agriculture and adjoining uses to mitigate noise, odour and visual impacts.

(d) Protect agricultural sustainability from the adverse impacts of other forms of proposed development.

(e) Consider the ability of the site to sustain over the long term the development concerned.

(f) Consider the likely effect of the development concerned on fish breeding grounds, nursery areas, commercial and recreational fishing areas and oyster farming.

(9) Rural residential development

Policy: Rural residential development should not reduce agricultural sustainability, contribute to urban sprawl, or have adverse environmental impacts (particularly on the water cycle or on flora or fauna).

Note—

Refer also to items (1)–(7) and (12) for relevant strategies.

Strategies:

(a) Give priority to agricultural production in rural zones.

(b) When considering a proposal for the rezoning or subdivision of land which will increase the intensity of development of rural land (for example, by increasing cleared or hard surface areas) so that effluent equivalent to that produced by more than 20 people will be generated, consider requiring the preparation of a Total Water Cycle Management Study or Plan.

(c) Maintain or introduce appropriate separation between rural residential use and agricultural use on the land that is proposed for development.

(d) Do not locate development in areas identified for future urban purposes in the Metropolitan Strategy.

(e) Consider the suitability of the land for keeping livestock, whether or not for commercial purposes, and appropriate mitigating measures to prevent land degradation.

(f) Consider the ability of the land to accommodate on-site effluent disposal in the long term.

(g) Consider any adverse environmental impacts of infrastructure associated with the development concerned…….

Part 3 Clause 8(5) of SREP20 requires that the consent authority must not grant consent to the carrying out of any development if the words additional matters for consideration by the consent authority appear in the item until it has considered those matters in addition to the matters specified in [section 4.15 of the EPA Act]. This clause brings up the provisions of cl 11(19) Development in Mapped Wetlands with the following provisions relevant to the application:

(19) Development in mapped wetlands

Definition:

The following, when carried out within wetland shown on the map:

(a) clearing,

(b) constructing a levee or carrying out, building, enlarging or extending an earthwork, bund wall or similar structure so as to change or impede surface drainage or tidal action,

(c) draining (including significant lowering of the water level), constructing, deepening, extending, opening, installing or laying any canal, drain or pipe,

(d) filling by raising the ground level through disposal of spoil from any landfill method (such as mining, dredging or refuse dumping), whether or not to enable the construction of a road or the erection of buildings or pylons or any other structure,

(e) subdivision of land.

Designated development unless the consent authority is satisfied that the development will be carried out on land in an ephemeral wetland shown on the map or carried out for the purpose of restoring or rehabilitating a mapped wetland.

Consent required.

Concurrence:

The Director or, if Part 4 of the Act requires, the Director-General of National Parks and Wildlife.

Additional matters for consideration by the consent authority:

(a) A Vegetation Management Plan is required for restoration or rehabilitation of a wetland and for any development in an ephemeral wetland.

(b) Whether a Vegetation Management Plan should also be required for any development other than restoration or rehabilitation in a wetland that is not an ephemeral wetland.

(c) Whether the development is likely to contaminate the soil resulting in a likely adverse impact on water quality when the wetland floods.

Matters for consideration by the Director as concurrence authority:

(a) Whether any feasible alternatives exist on the site to the carrying out of the proposed development.

(b) Any representations made by a public authority to the concurrence authority within the period referred to in section 80 of the Act.

• the growth of native plant communities, and

• survival of native faunal populations, and

• the provision and quality of habitats for indigenous and migratory species of fauna, and

• the surface and groundwater characteristics (including salinity and water quality) of the mapped wetland site on which the development is proposed to be carried out, and of the surrounding land.

(d) Whether adequate safeguards and rehabilitation measures have been, or will be, made or taken to protect the environment.

(e) Whether the development is likely to disturb acid sulphate soils either as a direct or indirect result of excavation or as a result of lowering the water table, or for a combination of those reasons, and the consequences of the disturbance.

(f) Whether any other wetlands are in the vicinity of the mapped wetland site to which the development application relates and the appropriateness of imposing conditions requiring the carrying out of works to preserve or enhance the value of those other wetlands.

The issues

The contentions in the case are that the applicant has paid inadequate attention to the content prescribed by the Environmental Planning and Assessment Regulation 2000 (Regulation) and does not comply with the Secretary's Environmental Assessment Requirements (SEARS); the applicant has failed to demonstrate that the proposed development incorporates sufficient measures to protect and enhance the biophysical, hydrological and ecological integrity and the quality and quantity of surface and groundwater flows to and from the Howes Creek wetland as required by the Coastal Management SEPP; the applicant has not demonstrated that the proposal complies with the general planning considerations of SREP and insufficient information has been provided to enable a proper assessment of whether the prescribed matters for consideration in that plan have been provided; the proposed subdivision does not comply with the requirements of cl 4.1B of the LEP; the applicant has not demonstrated that the proposed subdivision and any future residential development on the proposed lots are compatible with the existing or future flood hazard of the land based on contemporary studies of flood behaviour and incorporating appropriate measures to manage risk of life from flood events as required pursuant to cl 6.3 of the LEP; the proposed subdivision pattern results in allotments that are inconsistent with the subdivision pattern prevailing in the surrounding locality; the proposed development represents an overdevelopment of the site which does not provide for the ongoing sustainable use of the land; the proposal is not consistent with the objects of the Coastal Management Act 2016, the management objectives for the coastal wetlands and littoral rainforests of that Act and the objectives of Zone RU1 Primary Production in the LEP; extinguishment of the covenants is likely to have an unacceptable environmental impact on the site and the Howes Creek wetland, with inadequate information submitted to demonstrate acceptable ongoing management of vegetation, water quality and water flows on the site in the absence of such a covenant and the proposal is not in the public interest having regard to the contentions and would set an undesirable precedent for similar future inappropriate development in the locality.
State Environmental Planning Policy No 55—Remediation of Land (SEPP55) applies to the application. The Council does not raise a contention in relation to contamination and the applicant’s Contamination Assessment Report has concluded the site is suitable for residential development. I accept that finding.
Hawkesbury Development Control Plan 2002 (DCP) applies to the site with Part C Chapter 7 Effluent Disposal, Part D Chapter 3 with Clause 3.8 Rural and Rural Residential Subdivision particularly relevant to the contentions in the case.

The evidence

The hearing commenced onsite with a view of the proposed lot boundaries, building envelopes, ecological communities, wetland, drainage lines, water bodies, significant trees and proposed access locations. Observation of the form of dwelling housing constructed on the lots approved under the original 2010 subdivision also took place.
Expert evidence was heard from the following:

Applicant Respondent

Engineering         Dr D Martens         Ms L Collier
Planning         Ms L Wrightson      Ms N Piggott
Ecology         Mr T Peake         Dr A M Clements
Bushfire         Mr G Swain         Dr G Douglas

Engineering

The engineers have assessed the wetland hydrology and agree that morphologically the wetlands are coincident with the Howes Creek floodplain, this being a low lying, low gradient, alluvial plain presently dominated by pasture grasses and agricultural grazing. Surface water occurrence within the floodplain is mostly ephemeral and controlled largely by the occurrence of high flows coming either from the upstream Howes Creek catchment or from Hawksbury River backwater inflows. Long-term wetland wetting and drying cycles are thus controlled by catchment scale surface and groundwater flows and flood behaviour. Local tributary inflows to the floodplain periphery form a small part of the overall catchment and are a contributing water source, this assisting somewhat in prolonging the duration of surface water retention before wetlands dry out again between flooding cycles. The overall 5,610 hectare catchment is comprised of a mixture of land use including land cleared for predominantly agricultural uses, residential and rural residential areas and vegetated forested areas within the land zoned RU1 and RU4. Water quality within the wetlands is therefore impacted by upstream activities, as well as historical fertiliser use and grazing within the site, which is understood to vary in its intensity, particularly during recent drought conditions.
At the site, historical and present day direct access of stock to wetlands, depositing manure and urea into the wetlands or onto land in close proximity to and draining to the wetlands is a source of water quality impact which is largely unquantified.
In respect of the likely impacts of the proposal on wetland hydrology and wet dry cycles approximately 46 hectares of land occurs within the site to the south of the wetlands, this containing three small right bank sub catchments to Howes Creek and the proposed dwellings. The area represents around 0.8% of the total catchment area draining to the wetlands. Assuming around one hectare of this area would potentially be developed with driveways and dwellings, annual runoff volumes to the wetland would increase by around 0.03 two 0.04%. They do not consider this change in annual runoff volume is material and is not likely to detrimentally impact on current wetland hydrology or wet dry cycles.
In respect of the likely impact of the proposal on wetland water quality, nitrogen and phosphorus are key to wetland health and water quality. The site is presently grazed. Assuming 30 head of cattle are present on site this would generate in the order of 6000kg of nitrogen per year and 2400kg of phosphorus per year in a manure and urine. Dr Martens assumes that this grazing will cease under the proposed development due to the smaller farm sizes however Ms Collier notes that livestock grazing will cease however some form of grazing may still occur.
Typical farm fertiliser application rates used for ongoing past improvement can be significant. Treated wastewater from the dwellings that would be located within the proposed building envelopes will generate in total around 40kg of nitrogen and 14kg of phosphorus per year. Within the proposed building envelope areas treated effluent would be applied to a dedicated purpose built effluent disposal area located more than 150 metres from any wetland.
Similarly, stormwater produced by the development will in total generate around 1.5kg per year of nitrogen and 0.5kg per year of phosphorus which will partly be reused and treated by dedicated purpose built Water Saving Urban Design (WSUD) stormwater management measures.
The experts do not consider the changes in nutrient loads generated at the site associated with the proposed development would be material when compared to the range of potential existing nutrient sources within the subject site, and the wider catchment. Provided appropriate consent conditions are in place as recommended by these experts, they conclude the development is not expected to detrimentally impact on receiving water quality.
Based on the nutrient loads calculated, the removal of fertiliser application and livestock from the site and the controls on wastewater and stormwater proposed would have the potential to provide the greatest ongoing benefit in reducing nutrient loads delivered to the wetland.
Both experts consider the current management of the wetland under the FMP which includes a Wetland Management Plan (WMP) is an important element and as that it would be replaced by the VMP, wetland hydrology and water quality are important elements that should be considered in the preparation of that document. They recommend that the draft VMP be further considered by the water experts so that issues such as water quality monitoring can be properly addressed and included where necessary. They suggest a series of conditions which should be implemented including that no structures excluding appropriate fencing should be located within any mapped wetland areas and no grazing permitted on areas marked as a Coastal Wetland in SEPP2018.
Miss Collier considers that an additional condition should be included limiting the grazing of animals to 2 animals on each lot at any one time. Dr Martens proposes a condition that no fertiliser is to be permitted to be used on areas marked as a coastal wetland unless directed by or specific prior approval is provided by a relevant authority. Prior to the application of any broadscale fertiliser outside of the coastal wetland areas as identified in SEPP 2018, an assessment should be undertaken by a suitably qualified environmental or agricultural practitioner to determine suitable farm fertiliser application rates and the method and timing by which fertiliser is applied so that risk of impacting wetlands is appropriately mitigated. As an alternative, he suggests such a clause may more appropriately be incorporated directly into the VMP.
Ms Collier proposes an alternate condition that no fertiliser is to be permitted to be used on areas marked as coastal wetland. An additional condition that no pasture improvement or similar fertiliser application is to be permitted anywhere on the site. Any fertiliser for other purposes is to be strictly limited to 1kg per year.
The experts agree that based on the July 2019 Hawkesbury Nepean Valley Regional Flood Study the 1% AEP and PMF flood levels for the site are 13.2 and 23.7 m AHD. The impact of potential climate change on the 1% AEP level depends on the rainfall intensity increase scenario selected but a level of 14.2 m AHD is reasonable assuming a conservative higher rainfall intensity increase threshold of around 14%. They concur that all of the proposed building envelopes and access driveways are located above the 1% AEP flood level thus satisfying Council’s 2012 Flood Liable Land Policy and Council’s current draft 2020 Flood Management Policy. All lots, except for lot 6, are also above the 1% AEP plus climate change level. In respect of lot 6, a minor adjustment to the building envelope would enable the building envelope to be positioned outside the 1% AEP plus climate flood extents. They say this would not materially affect the development proposal layout.
As the development does not comprise earthworks or structures below at the 1% AEP flood level, they agree there will be no impact on flood behaviour.
In terms of evacuation, they note that there will be sufficient warning time, in the order of at least one day, to evacuate the dwellings during extreme events above the 1% of AEP and PMF. Evacuations of future drillings will be required for all flood events that exceed a flood level of 14.2m AHD. Evacuation may be required for an extended period of time, potentially of the order of months, and they say occupants should be prepared for this circumstance.
Subject to appropriately worded consent conditions, they conclude the proposed development is compatible with the sites flood hazard and meets the objectives and requirements of cll 6.3(1) and 6.3(3) of the LEP.
The proposed storm water treatment train includes rainwater tanks and rainwater reuse at each dwelling, stormwater swales along the access driveway and rain gardens located at the outlet of each stormwater pipe below the driveways. The experts agree this is an appropriate treatment train for the proposed development and that no material impacts of stormwater are anticipated provided appropriate consent conditions are imposed as described in their report.
There is an existing pond area within the proposed building envelope of proposed lot 3. Ms Collier is of the view that the building envelope should be relocated to the southern side of this rock outcrop and that any mound system for effluent disposal should ensure that it is not located such that flows are not discharged to this pond. Dr Martens sees no real benefit in relocating that building envelope provided that the pond outflow is properly directed away from any structure or effluent disposal field. He agrees that sufficient area is available to relocate the building envelope to address the concerns of Ms Collier.
The proposal incorporates they use of an Aerated Wastewater Treatment System (AWTS) for each dwelling within each allotment. The system must treat effluent to a secondary treatment standard and must also include disinfection to avoid transmission of pathogens from the wastewater system to the farm dams and the wetlands. The experts agree the primary constraint to effluent disposal within the site is the occurrence of shallow sandstone derived soils and intermittent rock outcropping. That rock outcropping is not specifically mapped for the site.
They agree that adequate land area is available within each lot to construct a suitable effluent disposal system such that it is located above the 1% AEP floodline and greater than 100m from the mapped wetlands.
Whilst they agree the preferred method of effluent disposal for future dwellings is a Wisconsin Mound system designed and constructed in accordance with ASNZS 1547 (2012) because such a system is well suited to shallow soils and involves the importation of clean field material to construct a raised effluent disposal area over the existing ground surface. The system ensures that all effluent is disposed of below ground so that it is not materially affected by rainfall conditions.
Ms Collier says that all of the allotments should utilise a Wisconsin Mound system and specifies construction criteria to address water quality and human health concerns. Dr Martens says that in some of the lots, where average soil depth is greater than 0.5m within the disposal area, effluent disposal can also be via a subsurface irrigation field designed to meet that Standard.
The experts have considered an Acid Sulphate Soils Assessment Report prepared by Martens and Associates dated 13 November 2020 and conclude the only potential impacts are likely to be associated with excavations for fence posts or other minor excavations within the wetland area. They recommend the imposition of a consent condition that restrict excavation within the area identified as Class 3 acid sulphate soils so that only fence posts are permitted.

During the site view, existing drainage easements that picks up road water drainage from Hadden Ridge Rd and adjacent land to the receiving waters of Howes Creek were identified. The experts agree these existing drainage easements require extension to ensure that stormwater is safely conveyed from the road past the building envelopes. They recommend appropriate conditions of consent be imposed to address that issue.

Planning

The planning experts have considered whether the proposed development incorporates sufficient measures to protect and enhance the biophysical, hydrological and ecological integrity and quality and quantity of surface and groundwater flows to and from the Howes Creek wetland in accordance with the requirements of SEPP2018. Their particular focus is on the pattern of farm use and they agree that limited details regarding the historical patterns of farm use were provided in the Environmental Impact Statement (EIS). Despite this fact they agree that it is better to look to the future for the site and consider how it can be best managed to ensure the wetland areas are enhanced.
Miss Piggott does not consider the proposed subdivision is the best way to ensure the wetland areas are enhanced submitting the existing FMP is the best option for the management of the site when allowing for past rural subdivisions. That is because the incorporated VMP and WMP required annual site audits to be lodged for a period of five years and then every three years in perpetuity whereas the proposed VMP does not include any wetland management strategies and only seeks a review period of five years. She concludes there is no long-term management strategy for the wetlands including water quality monitoring.
Ms Wrightson says the proposed subdivision is a better management option as it focuses on vegetation and wetland management rather than on the continued agricultural use of the site. She says the existing allotment, although over 90 hectares, is not suitable for an agricultural use due to the large area of wetland and vegetation that is required to be protected. The proposed large lot subdivision retains the rural character of the area while bringing in a management regime to enhance and protect the wetland.
The original FMP appears to propose continued grazing on the site based on the fact that the site has been grazed and used for agricultural activities since the 1790s and not on the best management options for the site and wetland generally. It has been nine years since that FMP was adopted for the site and the proposed management regime has changed. The proposed VMP recommended for the site, after consideration by the expert ecologists and engineers, can be amended to include water testing requirements if considered appropriate.
She considered the existing lot to be a lifestyle allotment, not dissimilar to the one hectare lots adjoining the site, the main difference being that it is larger area to manage. The proposed subdivision is more orderly, rational and sustainable use of the site and provides an appropriate economic benefit to the area that single dwelling would not. She stated that the proposal through the VMP provides appropriate funding to manage the wetland and ecological area rather than a single landowner trying to rely on the farm to produce an income for management that may not provide the same benefits to the economy and ecology of the area including that downstream of the site however, when cross examined, could not provide the source of that funding.
The VMP does provide costings of the works required and, during the hearing, the Applicant proposed to amend the provisions of the plan to provide for the first 2 years of work being undertaken by the applicant prior to sale of the lots. The remainder of the work would become the responsibility of the new owners. The VMP does not provide for works beyond that 5 year period. Again, the applicant submitted the plan could be revised to address this issue and allow for management of the lands in perpetuity.
The experts agree that there may be edge effects as a result of the proposed development, primarily from weed invasion. These impacts could be managed through additional provisions in the VMP to implement a weed management regime along boundaries with existing one hectare lots to the north and south. They also agree that the potential impacts from the proposed subdivision on Nos 62 and 29 Hadden Ridge Rd from access driveways could be ameliorated by landscaping treatment to ensure privacy is maintained.
There is no agreement whether the provisions of SREP 20 are met. Ms Piggott says cl 4 of the policy specifically states that this specific planning policies and related recommended strategies set out in cl 6 must be taken into consideration by a consent authority. The strategies listed require consideration for agriculture which is the proposed subdivision seeks to remove both the extinguishment of the positive covenant and the layout of the proposed lots, which effectively sterilise any opportunity for agricultural activities to be carried out. The allotments will not be able to sustain agricultural activities as the majority of the sites contain parts of the wetland, with associated buffer zones, and require adequate separation from the adjoining neighbouring residential lots. Therefore, the strategies listed have not been complied with as these allotments will no longer be able to carry out agricultural activities, which the subject site currently can and have been demonstrated by the current FMP. That plan recognised the historical grazing of this site, the endangered ecological communities and the wetland and its significance and provided management strategies to allow farming and grazing activities to continue whilst protecting the wetland and vegetation on site.
Ms Wrightson says the policy includes strategies that are aimed at both protecting the wetland and biodiversity areas and also protecting the agricultural land and activities. She questions the viability of the existing site for agricultural purposes and says they proposed allotments will maintain the rural character of the area, while including the VMP to protect and enhance the vegetation and ecology of the site. She does not contend that continued use of the site for grazing or farming is not viable but does contend the better option is to allow for the subdivision as proposed and cessation of grazing to improve the ecological outcomes for the site and locality.
The buildings will be limited to a building envelope which is clear of the main stands of vegetation, out of flood affected areas, includes appropriate APZs and appropriate effluent disposal areas. She says the Council has not given priority to agricultural production in rural zones or permitted appropriate separation for agricultural uses to continue through the approval of many rural residential allotments in the area. The proposal has considered the siting and context of the surrounding rural residential uses, the minimum 10 hectare lot size, and the wetland area and the proposal is the best way for this site to be managed while still allowing for additional dwellings retaining the rural character.
The subdivision allows the expenses and management of the wetland area and vegetation to be shared between 6 landowners rather than it falling on one landowner. She says this is the best way to ensure the protection of the wetland on the site and its appropriate management will have environmental benefits for properties downstream and their ability to manage their land sustainably.
The plan is consistent with the DCP vision that requires a satisfactory ratio between the depth of each lot and frontage of each lot having regard to the purpose to which the lot is to be used. That ratio is 1:5 and it is common ground that none of the lots, other than lot 6, meet this ratio.
Ms Piggott says the purpose of the control is to ensure that there is adequate area is available for a dwelling, outbuildings, agricultural uses, separation from neighbouring properties and alike. She accepts the fenced portions of the site would make the width to depth ratio however this does not change the fact that this subdivision proposed will create long linear allotments, particularly for lots 1-5 and create a pattern which will not only fragment the available agricultural capacity of the existing site but also the State and regionally significant wetland. She does not agree that multiple owners are more likely to protect and enhance the wetland but rather have the potential to create conflict, including disagreements over cost of works that may be required to be carried out by one owner which will benefit another owner’s allotment and so on, therefore multiple owners can become problematic and can potentially create a risk to the wetland being appropriately managed and protected.
Ms Wrightson says the proposed subdivision ensures that the future owners of the allotments all have ownership of the wetland they will be protecting and enhancing, and the location of the building envelopes limits the impact from dwellings and associated infrastructure to the area away from that wetland and out of flood impacts. The sites also contain sufficient building envelopes to provide area for dwellings and associated outbuildings and the areas within the proposed fencing locations do meet the depth to frontage provisions of the DCP. The proposal recommends the sharing of costs between the landowners under a new VMP for this site and purchasers would be aware of their obligations under the VMP through notations that could be applied to the title of each allotment.
With regard to the objectives of the RU1 Zone, Ms Piggott says the proposal does not meet objectives 1, 2 and 8. The proposed 6 allotments do not encourage sustainable primary industry production or diversity in primary industry enterprises as the subdivision pattern sterilises any primary industry, being agriculture. The site has a very distinctive agricultural landscape setting which will be lost with the proposed subdivision pattern. It will also fragment the wetland currently contained on the subject site. The proposal seeks to remove all agricultural uses from the proposed allotments, namely livestock grazing, for which the site is specifically is zoned for and can be carried out on the site in its current form. The site is classified as Class 4 agricultural land which, according to the Department of Primary Industries and the Department of Planning and Environment, is land that is suitable for grazing but not for cultivation. It is currently used for grazing with no cultivation and has a specific farm management plan over the site addressing the grazing which is being carried out. The application fails to demonstrate that the resulting allotments will not significantly affect the wetland on site, particularly as the subdivision pattern fragments and removes the agricultural capacity of the land and fragments those wetlands.
Ms Wrightson says the objectives are met as the VMP will provide a sustainable outcome for the site which will enable improvements to sustainable agriculture on downstream properties where it is more viable and possible in terms of environmental constraints. The Class 4 land in conjunction with the wetland and ecological area within the site limits the agricultural potential and suitability of the site. Neither the total site, nor the limited land size available after accounting for those constraints, is viable for livestock grazing. The proximity of existing rural residential dwellings and the wetland also limits the options available due to the potential for land use conflicts associated with intensive style agriculture which may also be suitable on this class of land. She cites activities such as beekeeping, growing of mushrooms or micro herbs and says it is possible that the 6 lots could continue to be used for agricultural purposes including the continued use for grazing.
The proposal will protect wetland and ecological areas that contribute to the protection of important natural resources and the site, being Class 4 agricultural land, has a low resource potential and is already fragmented by the wetland and previous subdivisions. The change in predominant use from agriculture to Environmental Protection will minimise conflicts between this site and adjoining properties and will not increase the conflict with other nearby holdings due to the size of allotments and the proposed location of dwellings. Although it is important to be able to encourage agricultural pursuits on land not as fertile the proximity of existing rural residential dwellings and the wetland limits the options available due to the potential for land use conflicts associated with intensive style agriculture which may be suitable on this class of land. The wetland conservation area will be rehabilitated and protected through implementation of the VMP promoting conservation and enhancement of local native vegetation, threatened species habitat and ecological communities.
The proposal will also improve water quality in the catchment through the improvement of the wetland and ecosystem areas which will have positive downstream impacts. It will retain the existing natural and landscape features of the site true considered sighting of houses and APZ areas in predominantly cleared locations. The retention of the wetland area and its improvement through the VMP will also retain the rural character of the area. The surrounding locality is already subdivided for small lifestyle lots and the revised lot layout ensures future construction of dwellings will remain compatible with the existing rural character. The size and scale of the proposed subdivision will not create unreasonable demand on the provision of public amenities for infrastructure. Ms Wrightson contends the proposal is a better outcome than the continued operation of the site for grazing under the current FMP.

Ecology

The joint expert report, exhibit 4, contains a useful summary of the proposed management of the site post subdivision. The six allotments would contain all residential activities constrained to a fenced area and beyond the fence is to be managed for conservation purposes. The management areas are divided into management zones with a total of seven zones applying. The first zone is the Howes Creek Wetland zone (a combined area of 38.13ha) and requires removal of grazing and management of aquatic weed species.
The second zone is the Southern Wetland Buffer with a combined area of 8.11ha. This requires restoration of River-flat Eucalypt Forest, an Endangered Ecological Community, including removal of grazing and associated fencing, regeneration, planting and weed management.
The third zone is the Outer Wetland Buffer, comprising a total area of 9.64ha. the works required are removal of grazing, regeneration, weed management and habitat tree protection.
The above three zones and Zone 5, the Northern Wetland Buffer and all the additional area to the north of the site are all subject to the provisions of the CMA. Works in zone 5 require weed control and ongoing weed maintenance for target weeds.
Other zones and the works required are Zone 4, the residential area that would be fenced and has a total area across the six lots of 21.66ha, development activities are expectations of possible removal of dead habitat trees and conservation works in mapped woodland areas on Lots 5 and 6.
There are two Woodland zones, 6A, the Remnants Conservation Area, covering 3.61ha, and 6B, Woodland Restoration Conservation Area, covering 4.01ha. Both areas require conservation works to conserve and enhance ecological condition within the limitations imposed by the APZ bushfire management work.
Four significant habitat trees are identified and will be conserved with buffer areas between 300m²and 600m² proposed.
The experts agree on the soil classification however Dr Clements disagreed on the classification of the Endangered Ecological Community. Despite this fact, it is agreed that the management practices to be contained in the VMP would be the same and therefore the dispute does not affect the outcome.
Their report was prepared in the absence of the report by the bushfire experts and therefore some reservations in regard to the extent of restoration works were expressed.
Dr Clements was critical of the investigative works on which the VMP is based and says more information is required to ensure that the plan would be appropriate and succeed in achieving the conservation and enhancement of the areas required. She was also critical that the plan suggested works were to be carried out by a number of specialists however provided no guidance on the coordination required to engage those experts. Similarly, no information was provided on who should undertake the reporting and who would coordinate that function and most importantly, what the reporting would be measured against and would happen if adverse impacts were uncovered.
Mr Peaks says there should be a five year monitoring program to ensure delivery of the works outlined in the VMP.

Bushfire

Mr Swain had reviewed the VMP and confirmed the bushfire protection measures and management protocols provided in Section 3.3.16 – Bush Fire Protection Zones, including Figure 3.5 – Bushfire Asset Protection Zones on Page 45 of the document comply with the Bushfire Safety Authority (BFSA) issued by the RFS and the recommendations of a Bushfire Protection Assessment Report he had prepared in June 2020.
Dr Douglas says the major issues for the development arise from the management and revegetation of the Howes Creek wetland. It can be expected with the removal of stock, additional regrowth is a likely scenario without active intervention. As the site is currently largely cleared and grassy some existing trees are found on site. The RFS has identified that the main Bush Fire Protection measures go to creation and maintenance of APZs, property access provisions and water and utilities. In addition, requirements for construction, landscaping and fencing are incorporated. In relation to the maintenance of APZs, he says the proposal includes a large area of asset protection zones, incorporating both inner protection (IPA) and outer protection zone (OPA) areas as well as a strategic fire advantage zone (SFAZ). The use of SFAZs is unusual and is not considered suitable for fire management purposes for development assessment purposes, due to the relatively long inter-fire intervals adopted, being 8 to 10 years under the VMP.
In his view, for lot 6, the management of the property does not conform with the BFSA and in particular lot 6 relies heavily on the SFAZ to the northeast of their building footprint. The RFS has advised that the whole of the site should be managed as an IPA. Although he does not agree that the site should be an IPA in its entirety, the reliance on both SFAZs and OPAs is not justified on bushfire grounds.
The proposal includes property access from the main public road with access to be 4 metres in width. The authority proposes that road should not exceed 200 metres in length, and he concurs with that assessment however notes that lot 6 does not comply with the advice as the length clearly exceeds the 200 metre requirement by a substantial and not insignificant amount. The movement of the dwelling further south could remedy this, however, may come into closer proximity to areas of revegetation.
For these reasons he recommends the removal of lot 6 and consolidation with the other lots will the proposal be revised to relocate the building footprint further south on the lot. He also recommends that a Bushfire Management Plan be prepared and approved prior to the granting of consent. That plan would need to incorporate all of the lots, the management of APZs, property access, water supplies and utilities location as well as landscaping and construction requirements. In addition, he recommends a restriction on the title of lots 1-5 so that the construction of the proposed new buildings comply with BAL 12.5. In relation to lot 6, he is not satisfied that the building envelope is well located or can meet BAL 29 based on the use of SFAZ and OPA requirements other than IPA specification identified by the RFS BFSA.

Other than these criticisms, Dr Douglas concludes that there are no specific barriers to the approval of lots 1-5 as identified in the application however lot 6 as currently arranged and located with its associated building envelope is not compliant with the BFSA for the reasons detailed above.
Mr Swain disagrees and says the access driveway to lot 6 contains overtaking lanes and is an access road for the purposes of the RFS publication Planning for Bushfire Protection 2019 and the area adjacent to the building envelope will continue to be managed as an IPZ with a 29m setback from the vegetation to the east.
Both experts agree that if all of lot 6 is managed as an IPA there could be no OPA near zone 6A which would address bushfire concerns however Dr Douglas still has the view the house should be closer to any public road. They also agree there is a need to ensure the strategic fire advantage zone is not densely planted and therefore the VMP would require amendment to reflect this requirement.

Conclusion and findings

Having regard to the evidence I am not satisfied that the development application is worthy of consent. That is particularly because the subdivision as proposed would fragment the environmentally sensitive areas under SEPP2018, SREP20 and the LEP and, having regard to the information available, I am not satisfied that the long term management of that area would ensure the necessary ecological outcomes are achieved.
Much of the applicant's case relies on the view that the discontinuance of grazing cattle on the site will, by the removal of the waste products associated with that cattle and keeping the wetland free from the animals walking through the area and destroying regrowth is a better outcome then the existing scenario managed through the FMP. Determination of a development application is not a comparison exercise and there is no evidence that the existing FMP is an inferior document to the proposed VMP. Both have been prepared having regard to the planning controls and seek to address those issues that must be considered before consent can be granted.
I might accept that proposition in the event that I was satisfied that the long term management of the wetland and adjoining buffer zones and ecological communities could be effectively managed through the VMP. The fragmentation of the land into six allotments and therefore they need for the necessary long term maintenance of those areas by 6 individual owners without an overarching facilitator is not, in my opinion, orderly development of the land.
I do accept that the VMP is a document which would guide the restoration, rehabilitation and ongoing maintenance of those areas however, it is not a simple document to understand and despite the author’s attempts to make it easily to comprehend, the complexities of the site are such that I'm not satisfied an individual lot owner would be capable of ensuring compliance in the long term. The fact that six different parties would be responsible for varying degrees of work further complicates the issue. There is no certainty that the objectives of SEPP2018, SREP 20 or the RU1 Zone will be met.
Regard must be had to the objectives of the RU1 Zone and in this regard, I do not find the relevant objectives are met. That is because the development does not encourage sustainable primary industry production by maintaining and enhancing the natural resource base not encourage diversity in primary industry enterprises and systems appropriate for the area.
Most importantly, it does not minimise the fragmentation and alienation of resource lands, land that is currently used for agricultural purposes and there is no evidence that this purpose cannot continue on the land nor is it viable, a matter of particular relevance in view of the fact that the land is not highly fertile.
The subdivision of the land and the construction of dwellings with associated infrastructure and outbuildings in close proximity to each other will not retain or enhance existing landscape values including a distinctive agricultural component and will detract from the existing rural character.
Whilst, in the short term, the rehabilitation works proposed under the VMP may enhance the local native vegetation including the habitat of threatened species, populations and ecological communities through the location of the buildings in cleared areas, the need to provide asset protection zones in close proximity to those areas, compromises the conservation of the areas.
The majority of the objectives of the development standard for minimum lot size are met however, in regard to Lots 1-5, which are only just compliant with the 10ha minimum, I am not satisfied that the pattern of lots will minimise impact on the regionally significant wetland and waterways due to the fragmentation of that land and the five parties that would be responsible for management of the six zones in an uncoordinated manner, despite the VMP.
That fact is a precondition to consent pursuant to the additional provisions for subdivision under cl 4.1B(2)(a) of the LEP. Development consent must not be granted to a subdivision of land to which this clause applies unless the pattern of lots created by the subdivision and the location of any buildings on those lots is not likely to have a significant impact on any threatened species, populations or endangered ecological community or regionally significant wetland, waterways, groundwater or agricultural activities in the locality. For the reasons stated above, I am not satisfied the subdivisions will not have a significant impact on the regionally significant wetland and endangered ecological communities. For that reason, consent cannot be granted.
I am satisfied that the development would address the relevant flood planning levels as required under cl 4.2B(2) and (3) and 6.3 of the LEP.
After consideration of the matters listed in cl 6.4(3) of the LEP in relation to the designation of parts of the site on Terrestrial Biodiversity Map I consider the proposed subdivision has the potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and is likely to have any adverse impact on the habitat elements providing connectivity on the land. Whilst the VMP has been prepared in an attempt to manage these issues, the fragmentation and uncoordinated approach to this management will not ensure that the risk is minimised or mitigated. For that reason, I am not satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact and the VMP will successfully mitigate those impacts. For that reason, pursuant to the provisions of cl 6.4(4), consent cannot be granted.
For the same reasons, consent cannot be granted pursuant to the provisions of cl 6.5(4) of the LEP relating to the impact on the regionally significant Wetlands.
The terms of cl 6.7 of the LEP in relation to Essential Services have been met.
The fragmentation of the land as proposed, particularly in Lots 1-5 will not satisfy the management objectives of cl 6 of the CMA as the uncoordinated approach to management of the areas will not ensure the protection of the coastal wetlands in their natural state, including their biological diversity and ecosystem integrity or, in the longer term promote the rehabilitation and restoration of degraded coastal wetlands.
The provisions of cl 10(4) and 11(1) of SEPP2018 prohibit the grant of consent unless the consent authority is satisfied that sufficient measures have been, or will be, taken to protect, and where possible enhance, the biophysical, hydrological and ecological integrity of the coastal wetland or littoral rainforest and that the proposed development will not significantly impact on the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest. For the reasons outlined above concerning the fragmentation of the land and the uncoordinated approach to the complex management regime, I am not satisfied the requirements are met and accordingly, consent cannot be granted.
The terms of SREP20 and in particular require consideration of specific planning policies and recommended strategies and once again, the fragmentation of the land does not satisfy the terms of those policies and strategies.
For these reasons, consent cannot be granted, and I do not need to address in detail the areas of disagreement between the experts. Suffice to say, the location of dwelling should best address the minimisation of impacts and risk.
The Orders of the Court are:

The appeal is dismissed.

Development Application 0308/2019 for a six lot subdivision of land comprising Lot 28 DP 1184227 and known as No. 35 Hadden Ridge Road, Wilberforce is refused consent.

The exhibits, other than exhibits A and 1, are returned.

………………………………

Sue Morris

Acting Commissioner of the Court

**********

Decision last updated: 13 January 2021

Medium Neutral Citation:	Iontaobhas Pty Ltd v Hawkesbury City Council [2021] NSWLEC 1015
Hearing dates:	16-19 November 10 December 2020
Date of orders:	13 January 2021
Decision date:	13 January 2021
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	The Orders of the Court are: (1) The appeal is dismissed. (2) Development Application 0308/2019 for a six lot subdivision of land comprising Lot 28 DP 1184227 and known as No. 35 Hadden Ridge Road, Wilberforce is refused consent. (3) The exhibits, other than exhibits A and 1, are returned.
Catchwords:	DEVELOPMENT APPLICATION – subdivision – impact on wetlands – endangered ecological communities
Legislation Cited:	Coastal Management Act 2016 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Hawksbury Local Environmental Plan 2012 Rural Fires Act 1997 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan No. 20 - Hawksbury Nepean River (No 2 – 1997)
Texts Cited:	Australian/New Zealand Standard ASNZS 1547:2012 On-site domestic wastewater management Hawkesbury City Council, Development of Flood Liable Land Policy 2012 Hawkesbury City Council, Draft Flood Policy 2020 Hawkesbury Development Control Plan 2002 NSW Rural Fire Service, Planning for Bushfire Protection 2019
Category:	Principal judgment
Parties:	Iontaobhas Pty Ltd (First Applicant) MOC Pty Ltd (Second Applicant) David O’Connor (Third Applicant) Hawkesbury City Council (Respondent)
Representation:	Counsel: C Leggat SC (Applicants) A Seton (Solicitor) (Respondent) Solicitors: Colin Biggers & Paisley Lawyers (Applicants) Marsdens Law Group (Respondent)
File Number(s):	2019/365266
Publication restriction:	Nil