JML Designs v Blue Mountains City Council

[2008] NSWLEC 1244

Land and Environment Court

of New South Wales

CITATION:	JML Designs v Blue Mountains City Council [2008] NSWLEC 1244
PARTIES:	APPLICANT JML Designs Pty Limited RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	11266 of 2007
CORAM:	Brown C
KEY ISSUES:	Development Application :- erection of a dwelling - bushfire protection
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Blue Mountains City Council Local Environmental Plan 1991
DATES OF HEARING:	29/05/08
EX TEMPORE JUDGMENT DATE:	29 May 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr R O'Gorman- Hughes, barrister SOLICITORS Yates Beaggi RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

29 May 2008

11266 of 2007 JML Designs v Blue Mountains City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application X/666/2007 by Blue Mountains City Council (the council) for the erection of a two storey dwelling at Lot 17, The Links Road, Leura (the site).

2 I acknowledge that the parties have spent considerable time in addressing the often conflicting objectives of providing bushfire protection through fuel reduced areas and retaining existing significant vegetation with the result that the only issue in the proceedings is the adequacy of the northern Asset Protection Zone (APZ) for the proposed dwelling.

3 The site is within Zone Residential Bushland Conservation under Blue Mountains City Council Local Environmental Plan 1991 (LEP 1991). Clause 9.3 provides that consent shall not be granted unless consideration has been given to the objectives of the plan and the objectives of the zone and the Court is of the opinion that the proposed development complies with the relevant objectives.

4 The relevant zone objective is:

(e) To ensure bushfire protection measures are adequate to protect proposed development and are able to be implemented without unacceptable environmental impacts.

5 Clause 10.5 addresses Environmental impact. Clause 10.5(ca)(i) provides that consent shall not be granted unless the proposal incorporates effective measures within the boundary of the site to protect the dwelling from bushfire. Clause 10.5(ca)(ii) provides that consent shall not be granted unless the proposal mitigates adverse environmental impacts of the measures (identified in c11 0.5(ca)(i)) to the maximum extent possible.

6 Clause 1 0.5(d)(a)(i) provides that consent shall not be granted to the erection of a dwelling unless the dwelling incorporates effective measures to ensure that it has no significant adverse environment impact on environmentally sensitive vegetation listed in Schedule 3 of LEP 1991. In this case, Blue Mountains Heath and Scrub and Blue Mountains Swamp are relevantly listed in Schedule 3.

7 The site is identified on Blue Mountains City Council Bushfire Prone Land Maps as Category 1 development, and as such s 79BA of the Environmental Planning and Assessment Act 1979 is activated. This requires the consideration of bushfire protection measures in the consideration of the application. The relevant Fire Danger Index is 100 with vegetation located to the north, west and south of the site. The vegetation is classified as Open Forest for the purposes of assessing bushfire protection.

8 The required APZ, based on the prescriptive controls in Planning for Bushfire Protection 2006, is 60 m. As this APZ cannot be achieved because of the size of the lot, the proposed development was assessed on a performance based approach provided for in Planning for Bushfire Protection 2006 by the bushfire experts for the council and the applicant.

9 There was agreement between Mr Steve Parrott for the applicant and Mr Corey Shackleton from the Rural Fire Service for the council that if a range of conditions relating to building construction, the maintenance of APZ's on the site and the provision of a dedicated water supply were imposed then the dwelling could be adequately protected from bushfire attack. These conditions were not opposed by the applicant.

10 To protect the proposed dwelling from fire from the north, they agreed that if an area, 20 m from the rear of the proposed dwelling and the width of the lot was maintained as an Inner Protection Zone (IPZ) and the' area between this line and the agreed location of the Blue Mountains Heath and Scrub was managed as an Outer Protection Zone (or fuel managed zone) through a Vegetation Management Plan, then adequate protection was provided for the proposed dwelling from the north.

11 The location of the boundary of the Blue Mountains Heath and Scrub vegetation community was agreed to by Ms Fiona Nagel for the council and Or Trevor Hawkeswood for the applicant. It is generally located by a line measured 21.4 m from the rear boundary on the western boundary and 9.6 m on the eastern boundary. The dwelling location does not directly impact on the Blue Mountains Heath and Scrub vegetation community.

12 There was agreement between Ms Nagel and Or Hawkeswood that there should be a buffer area to protect the Blue Mountains Heath and Scrub vegetation community. While a 60 m buffer was considered optimal by Ms Nagel and Or Hawkeswood they both accepted that a 20 to 32 m buffer would be acceptable but with at least 50% of this area retained in its natural state.

13 The sole issue in the proceedings centres on the area required by Mr Parrott and Mr Shackleton to be maintained as an OPZ and the area required by Or Hawkeswood and Ms Nagel to be retained in its natural state to provide a buffer for the Blue Mountains Heath and Scrub vegetation community. The areas are not identical, however they are generally the same and can be considered to be so for the purposes of this issue.

14 As a starting point I propose to adopt the agreed positions of Mr Parrott and Mr Shackleton in terms of bushfire protection. Given the starting point of a 60 m APZ, I accept that their joint position reflects a commonsense and practical solution to the difficult characteristics of the site.

15 The question that now needs to be answered is whether the OPZ and Vegetation Management Plan can adequately fulfil the role of a buffer for the Blue Mountains Heath and Scrub vegetation community so that the proposal would not have a significant adverse environmental impact on that community. Dr Hawkeswood says yes and Ms Nagel says no.

16 In considering that the objective of the buffer is to protect the Blue Mountains Heath and Scrub vegetation community from impacts such as edge effects, stormwater run-off, weed invasion, changes in micro-climate and domestic animals, I agree with the conclusion of Dr Hawkeswood. The evidence suggests that the existing tree canopy density was in the order of 50% whereas a 30% density would likely satisfy the requirements for an OPZ. While some understorey clearing would also be required the general consensus was that the existing understorey was not overly dense. Mr Parrott suggested that a reduction of some 50% in fuel load would likely be required, that is, from a density of 20 tonnes per hectare to 10 tonnes per hectare, to satisfy the requirements for an OPZ .

17 I am satisfied that a Vegetation Management Plan can be prepared that will maximise the retention of existing vegetation and minimise any impacts on the Blue Mountains Heath and Scrub vegetation community so that there will not be a significant impact on that community. I agree that the Vegetation Management Plan should be a deferred commencement condition to allow the council to properly assess its contents.

18 In accordance with cl 9.3 of LEP 1991, the proposed development complies with the relevant plan and zone objectives. I am also satisfied the proposal satisfactorily addresses c11 0.5(ca)(i) and c11 0.5(ca)(ii) in that the adverse environmental impacts of the bushfire measures are mitigated to the maximum extent possible.

19 The Orders of the Court are:

1. The appeal is upheld.
2. Development Application X/666/2007 for the erection of a two storey dwelling at Lot 17, The Links Road, Leura is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit A.

___________________

G T Brown
Commissioner of the Court