Johnston v Blue Mountains City Council

[2011] NSWLEC 1220

Land and Environment Court

New South Wales

Medium Neutral Citation:	Johnston v Blue Mountains City Council [2011] NSWLEC 1220
Hearing dates:	19, 20, 23 May 2011
Decision date:	08 July 2011
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to conditions
Catchwords:	Development application; subdivision; access to bush fire prone land; tree removal and zone objectives
Legislation Cited:	Environmental Planning & Assessment Act 1979 Blue Mountains Local Environmental Plan 2005 Rural Fires Act 1997 State Environmental Planning Policy No 1: Development Standards Dividing Fences Act 1991 Conveyancing Act 1919
Cases Cited:	BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399 Cecil D Barker & Co v Blue Mountains City Council [2001] NSWLEC 244 Winton Property Group Ltd v North Sydney Council [2001] NSWLEC 46 Wehbe v Pittwater Council [2007] NSWLEC 827 Allen and anor v Cessnock City Council [2010] NSWLEC 1179
Texts Cited:	Planning for Bushfire Protection 2006
Category:	Principal judgment
Parties:	Ms B Johnston (Applicant) Blue Mountains City Council (Respondent)
Representation:	Counsel Mr O'Gorman-Hughes (Applicant) Solicitors Yates Beaggi Lawyers (Applicant) Mr A Seton (Respondent) Marsdens Law Group
File Number(s):	10079 of 2011

Judgment

1. This is an appeal pursuant to s 97(1)(b) of the Environmental Planning & Assessment Act 1979 (the Act) against the refusal by Blue Mountains City Council (the council) of Development Application No. S/56/2008 for a 10 lot subdivision of Lot 27 DP 212973 112 Cleopatra Street, Blackheath (the site).

1. The contentions raised by the council can be summarised as:

• Non-compliance with the development standard for road access to bush fire prone land in cl 84(3) of the Blue Mountains Local Environmental Plan 1995 (BLEP)
• Adverse impact on the landscape character and traditional garden setting of the locality because of the proposed extensive removal of trees and is thus inconsistent with the objectives of the zone
• Unacceptable impacts on trees on adjoining properties resulting from the removal of trees from the site
• Not in the public interest because of the risks and burdens imposed on the owners of adjoining properties.

The site and the locality

1. The site occupies an irregularly shaped central portion of the block bounded by Cleopatra, Cross and Romaine Streets and Govetts Leap Road Blackheath. The site is 1.66 ha with a street frontage of 18.9m to Cleopatra Street and a 22.5m frontage to Cross Street. The long axis of the site runs from northwest to southeast.

1. A two storey dwelling with driveway access off Cleopatra Street currently exists on the site. The site is surrounded by residential development of single dwellings on generally large blocks of land with established trees. Two heritage items listed in Schedule 6 of the BLEP adjoin the site; 'Cleopatra' to the south and 'Balquhain' to the west.

1. The site is dominated by mature Pinus radiata trees and a weedy understorey. There is some native vegetation in the northern corner of the site and a domestic garden adjacent to the dwelling. There are some mature deciduous and other exotic trees to the northeast of the 'Cleopatra' site. Many of the surrounding properties contain similarly large Pines and other established trees.

1. The south-eastern and south-western portions of the site, including the two access points, are classified as Bushfire Buffer on councils Bushfire Prone Land map. This means that they are within 100m of Category 1 bushfire prone land in Cleopatra and Cross Streets.

1. The site is generally level with an average grade towards the northeast corner of 4% and to the northwest corner of about 7%.

The proposed development

1. The proposal includes the following:

• Subdivision of the site into 10 lots ranging in size from 1243sq m to 1498sq m (excluding access handles),
• Retention of the existing dwelling on one lot,
• The creation and piping of a drainage easement over 185 Govetts Leap Road in favour of the site,
• Removal of approximately 350 trees from the site,
• The construction of a new cul-de-sac off Cleopatra Street (access 1) and a cul-de-sac off Cross Street (access 2) and the dedication of these roads as public roads,
• The installation of underground service mains to serve all proposed lots, and
• Identification of building envelopes on the proposed lots.

1. The site plan shows the proposed 10 lot layout. The site is relatively constricted in the centre by adjoining properties and can therefore be considered as consisting of 2 parts - the eastern portion connecting to Cross Street and the western section connecting to Cleopatra Street. Five lots are proposed for each portion.

Background to the appeal

1. Development Application No. S/56/2008 was lodged with council on 17 September 2008.

1. As it is integrated development, it was referred to the NSW Rural Fire Service (RFS) who subsequently issued a Bush Fire Safety Authority (BFSA) for the proposed subdivision. The response refers to conditions relating to asset protection zones, water and utilities, and relevantly, access.

1. The application was notified in accordance with council requirements and submissions from 16 parties and an online petition were received.

1. In response to issues raised by council officers and in public submissions, the applicant submitted an amended application and additional information including a supplementary heritage assessment, a SEPP 1 objection on road width, an arborist's report regarding tree removal and the likely impacts on trees on surrounding properties, and responses to public submissions. The responses included changes to setbacks of some building envelopes; provision of a 1.8m timber perimeter fence; and, subject to the owner's approval, an offer to remove trees on adjoining land identified as being at risk. The amended application was renotified and 15 submissions were received.

1. Because of an association between the applicant and BMCC, Penrith City Council conducted a peer review of the procedures followed by the council in assessing the development application; the report is dated 17 June 2010. The peer review included a review of the draft report prepared by council staff for the council meeting of 29 June 2010. Apart from specific issues relating to conditions, the review found the BMCC reports assessing the matters for consideration under s 79C to be well reasoned and the conclusions justified. The review found that the assessment, report and recommendations to be appropriate given the complexity of the issues and that preferential treatment in favour of the applicant was not found. The peer review agreed with the council staff recommendation for approval of the development application subject to conditions.

1. The report prepared for the council meeting of 29 June 2010 recommended granting deferred commencement consent subject to conditions. The council at that meeting agreed to defer the matter pending clarification from the RFS regarding access to and from the site via cul-de-sacs, an independent arborist report, and the number of trees to be removed.

1. Council engaged an independent arborist to review wind speed and tree removal issues. Council received the advice from the RFS. The applicant responded to the independent arborist report and agreed with most of the recommendations. The independent arborist's report and the applicant's response were provided to affected neighbours who were invited to comment. Written comments were received from the owners of 11 adjoining properties.

1. As a result, another amended plan of subdivision was lodged in response to the independent report. The layouts of several lots were reconfigured, some building envelopes were altered and increased buffer zones were indicated.

1. A SEPP 1 objection relating to the proposed cul-de-sacs was submitted.

1. Council officers prepared another report for the council meeting of 14 December 2010 which addressed the issues raised at the meeting on 29 June. The report recommends the granting of deferred commencement consent subject to conditions. [I note that there is no reference in the council report regarding the SEPP 1 objection regarding the cul-de-sacs however the report concludes that whilst there is non-compliance, based on information from the RFS the cul-de-sacs are satisfactory and are conditioned accordingly.]

1. On 14 December 2010 council refused consent. Council's contentions reflecting the reasons for refusal are summarised in [2].

Relevant planning controls

1. The site is zoned 'Living - Conservation Zone' in the Blue Mountains Local Environmental Plan 2005 (BMLEP). Clause 9 requires a consent authority to be satisfied, amongst other things, that the development is consistent with the aims of the plan (cl 9(a)), complies with the principal objectives of the plan (cl 9(b)), complies with the locality management provisions in Part 2 (cl 9(c)), complies with assessment provisions in Part 3 (cl 9(d)) and complies with development provisions in Part 4 (cl 9(e)). Clause 15(2) states that consent shall not be granted to development unless it complies with the zone objectives.

1. The relevant zone objectives are given in cl 23:

The objectives for the Living - Conservation zone are as follows:

(a) To retain and enhance the character of residential areas that are formed by larger allotments and single dwelling houses within a prominent traditional garden setting.

(c) To ensure development, including development with adjoining road reserves, retains the prominence of landscape elements and traditional garden settings.

(d) To ensure that established gardens are retained or landscape settings are re-established as part of any development of land, including development involving major alterations or additions.

1. Division 4 Heritage Conservation cl 68(d) states that consent shall not be granted to development within the curtilage of a heritage item or archaeological site unless the consent authority is satisfied that the development complies with the relevant heritage conservation objectives and provisions within this division. Relevant to the matter is heritage conservation objective cl 69(b) that refers (in part) to the conservation of the heritage significance of the settings and views associated with heritage items.

1. Clause 76 relates to development in the curtilage of a heritage item.

76(2) Consent shall not be granted to development in the curtilage of a heritage item...unless the consent authority has considered a heritage impact statement, where, in the opinion of the consent authority, that development could adversely impact on the heritage significance or visual setting of that item or area.

1. Division 5 BMLEP concerns bush fire protection. Clause 84 relates to 'Access to bush fire prone land'. Clause 84(1) states:

(1) The consent authority shall not consent to development on bush fire prone land involving the construction of new roads or development for a special fire protection purpose, unless it is satisfied that adequate provision is made for public and private road access in accordance with this clause.

1. Of relevance to the proposal and council's contentions is cl 84(3) which states:

(3) New public roads constructed in conjunction with the subdivision of bush-fire prone land, not including perimeter roads or perimeter fire trails, are to be:

(a) at least 8 metres wide with shoulders on each side, so as to allow traffic to pass in opposite directions, and

(b) through roads wherever practicable, providing at least 2 access points to a main road from land that has been subdivided into lots intended for use for residential, commercial or industrial purposes, and

(c) cul-de-sacs only where the construction of through roads is impracticable given the physical constraints of the land.

1. Part 4 of BMLEP deals with considerations for development. The relevant clause in Division 1 - Subdivision are:

• cl 90(1) - the minimum lot size for the zone is 1200sq m with a minimum width of 22m.
• cl 90(8) - subdivision is to retain, where possible, existing vegetation
• cl 90(10)(a) and (b) - subdivision in the zone is to retain an appropriate setting and visual context for existing buildings including allowing for any existing formal garden settings; and identification of building envelopes for each lot that will maximise the retention of existing formal gardens and existing mature vegetation on the site.

1. The relevant Development Control Plan is Blue Mountains Better Living DCP (BLDCP). Part D8 considers subdivisions. D8.7.14 states that

Dead end roads constructed for the development of bushfire prone land are to be no more than 200 metres in length, incorporating a minimum 12 metre radius turning circle and to be clearly signposted as dead ends.

1. Clause D8.7.18 relating to new public roads for subdivisions in bush fire prone land is almost identical to cl 84(3) in BMLEP and has the same intent.

1. Clause D8.11.12 concerns the location of driveway access.

All lots should identify possible driveway locations. If there is only one possible or likely location then the driveway shall be constructed as part of the subdivision works.

1. Also of relevance in these proceedings is Planning for Bushfire Protection 2006 (PBP2006) and 2010 amendments. Section 1.2 regarding compliance with PBP states in part that residential subdivision proposals must comply with the specific objectives and performance criteria in sections 4.1. and 4.2.

1. Key to one of the contentions is found in 4.1.3 - Standards for Bush Fire Protection Measures for Residential and Rural Residential Subdivisions.

Performance criteria : public road widths and designs that allow safe access for firefighters while residents are evacuating an area.

Acceptable solutions : (includes) all roads are through roads. Dead end roads are not recommended, but if unavoidable, dead ends are not more than 200 metres in length, incorporate a minimum 12 metres outer radius turning circle, and are clearly sign posted as a dead end and direct traffic away from the hazard.

The hearing and the evidence

1. The hearing commenced on site. A number of owners of adjoining properties gave evidence and their properties were visited. The site was viewed from the surrounding streets, access paths traversed, trees discussed with the arborists, and bushfire issues relating to nearby bush blocks discussed with the bushfire experts.

1. The range of concerns from adjoining residents include:

• The loss of trees will have a detrimental impact on the visual character of Blackheath and the visual amenity currently enjoyed by neighbouring properties and tourists,
• Setback of access roads from neighbouring properties,
• The risk of tree failures on their land as a result of the removal of trees on the site due to increased exposure to wind,
• General exposure of adjoining properties to wind as a result of removing the wind protection the trees on the site currently afford neighbouring properties,
• The use of herbicides for weed control and possible drift onto adjoining gardens,
• Lack of detail regarding the location and extent of drainage works and the possible risk to vegetation, and
• The potential loss of birdlife from the area if the trees are removed.

Bushfire evidence

1. Mr S Parrott gave evidence for the applicant and Dr D Wotherspoon for the respondent. The experts prepared a joint report. The main bushfire related issue is whether the proposed cul-de-sacs provide suitable ingress and egress from the site or whether access should be a through road connecting the two access points. It is noted that the applicant's original position was a 6.5 m wide carriageway however, the applicant has accepted that any public road be 8m wide.

1. The experts agree that cul-de-sacs meet the minimum specification for a subdivision under PBP2006 however in their joint report they differ on whether a through road is the most appropriate option.

1. Dr Wotherspoon considers that the threat of a fire hazard near each of the intersections of the proposed access roads with the adjoining main road warrants alternate access and egress by means of a through road. He considers a radiant heat flux (RHF) of less than10kW/sq m at each of the intersections would allow the use of cul-de-sacs. However, he calculates the RHF at the Cross Street entrance to be 11kW/sq m with a flame length of 13.5m and at the Cleopatra Street entrance an RHF of 42kW/sq m and a flame length of 26.6m. He states that the model he used may have errors of up to 10% but notwithstanding that, he considers a through road to be advisable.

1. Mr Parrott considers the risk to the intersections of both access points to be low. Based on his calculations of separation distances, slope and so on, his modelling suggests a RHF of 9.72kW/sq m at Cross Street and 4.02kW/sq m at Cleopatra Street. He states that PBP2006 does not provide requirements for minimum/maximum radiant heat flux exposure levels for road access in bushfire prone areas and the 2 intersections are within designated bushfire buffer zones. However, he accepts that an exposure of less than 10kW/sq m would allow emergency workers and the public the opportunity to leave the cul-de-sacs in safety. Based on his modelling, reasoning and practical experience he considers that the cu-de-sacs meet the objectives of providing safe access and are therefore acceptable.

1. It is noted that the experts used different models and 'calculators' and both made different assumptions about certain inputs. For example, Dr Wotherspoon categorised the vegetation as forest and Mr Parrott as woodland.

1. Under cross-examination, both experts agreed that there are no terrain difficulties with the provision of a through road. Mr Parrott acknowledged that he was not involved in the design of the sub-division and conceded that assuming a 'clean slate' a through road should be provided. However, notwithstanding that statement, Mr Parrott maintained the actual risk to anyone entering or leaving either of the cul-de-sacs is low.

Arboricultural evidence

1. Mr D Ford provided arboricultural evidence for the applicant and Ms C Mackenzie for council. In their joint report, the arborists agree that, with a few exceptions, the Pinus radiata on the site are not significant due to their poor condition and short useful life expectancy. Some trees are worthy of retention because of their isolation.

1. They agree that given the close spacing of the trees, their poor trunk form and likely poor root systems, there is a significant likelihood of windthrow which would be increased by opening up the canopy. They consider that some trees on some neighbouring properties would be more exposed to wind loading should trees on the site be removed and this would probably necessitate their removal.

1. Both arborists agree that removal of low value trees on the site would enable replacement plantings of more suitable trees because at the moment there is negligible scope for replanting. They agree that landscape plan should be prepared to guide the replanting.

1. With respect to the contention that the removal of the trees will have an adverse impact on landscape character and the traditional garden setting of the locality, the arborists agree that there is very little landscape on the site that could be termed 'traditional garden setting' and this is something that could only be achieved if the majority of the Pines were removed.

1. During the site inspection it became clear that a detailed plan showing trees that could be retained had not been prepared. Similarly, the available survey plan (Plan no 16164T dated 27.02.08 prepared by Vince Morgan Surveyors) did not include some trees from the former extension of the 'Cleopatra' garden. The arborists were requested to mark up the survey plan to locate and identify the 'Cleopatra' trees, individual or groups of trees worthy of retention, and trees on neighbouring properties proposed for removal. This was done and tendered as exhibit H.

1. The marked up plan identifies 40 trees including 9 'Cleopatra' trees on the site that are suitable for retention and about 38 Pine trees on 4 adjoining properties that may require removal; 25 of these trees are located on a property in Cross Street. Two of the trees identified for retention are located within the two proposed access points from Cleopatra and Cross Streets.

1. On site, and in their reports, the arborists agreed that the prevailing winds are generally from the west and west-southwest and some from the north-west although it was acknowledged that consideration had been given to winds from all directions. Based on this, the trees on the majority of properties along Govetts Leap Road are likely to be unaffected by the removal of trees on the site. Some trees on 'Balquhain' near the driveway from Cleopatra Street may be somewhat affected. The adjoining properties identified at being most at risk from wind exposure are to the northeast and east of the site. There was some discussion as to what inspections, if any, of trees on adjoining properties should be undertaken prior to and after the removal of trees from the site. Mr Ford recommends one inspection prior to removal. Ms Mackenzie recommends one before tree removal and 2 re-assessments within 12 months of tree removal with at least one of the inspections to be carried out in August/ September, presumably because her report indicates that this is period of the strongest wind gusts.

1. In conclusion, the arborists agree that the vast majority of the trees on the site are not worthy of retention, that some trees on adjoining properties will be placed at risk if trees on the site are removed but that a number of these trees have owners' permission for removal and can be managed, and that there are a number of trees that can be retained and their retention will require specific protection measures when roads, driveways and services are installed.

Planning evidence

1. Mr V Hardy gave evidence for the applicant and Mr M Brown for the council. The planners prepared a joint report. The planners agree that it is practicable for the development to provide a through road, that the site is suitably zoned for residential subdivision and that the proposed lots are larger than the minimum required under the BMLEP.

1. With respect to the through road, even though he agrees it is practicable, Mr Hardy considers it is not necessary in order to provide safe vehicular access. He also considers that the requirement of a through road would result in an inefficient development response to the site. Mr Brown's view is that a through road is required by the BMLEP and larger lots would allow for the retention of more trees thus retaining a garden setting.

1. Under cross-examination, Mr Hardy stated that he had not been involved with the design of the subdivision. Mr Brown is of the opinion that there are other sub-division options and alternatives that would meet the zone objectives.

Submissions

The applicant's position

1. Mr O'Gorman-Hughes for the applicant contends that the application before the Court was ultimately recommended for approval by council officers following a lengthy period of assessment, consultation with neighbours and the retention of an independent arborist. The main contentions remain the cul-de-sacs rather than a through road and the loss of trees from the site and the subsequent impacts on trees on adjoining properties as the zone objectives.

1. With respect to the access issues and the SEPP 1 objection lodged in regard to clause 84(3) of BMLEP Mr O'Gorman-Hughes submits that the cul-de-sacs: meet the minimum requirements specified in PBP 2006; satisfy the RFS; meet the intent to permit safe access to and egress from bushfire prone land as they are short and link to public roads that can be travelled in two directions; provide access to only 5 lots each and therefore congestion should not be an issue; and the bushfire affected areas are only in a bushfire buffer zone and the risk of direct exposure to a fire front is low. He argues that compliance with the control would result in the loss of at least 3 lots and reduce the amenity of remaining lots for no material benefit. Thus he concludes that compliance in the circumstances would neither be reasonable and would inhibit the orderly and economic development of the land and therefore that the SEPP 1 objection is well founded.

1. In regards to the removal of trees, Mr O'Gorman-Hughes contends that the zone objectives do not mandate the retention of existing vegetation but enable the re-establishment of landscape settings as part of any development. He asserts that the arborists agree that, with few exceptions, the majority of the Pinus radiata on the site have a short safe useful life expectancy and are in poor condition. He agrees that removal of trees from the site is likely to have an impact on the stability of some trees on nearby properties but this is capable of being managed.

1. He contends that with the exception of one resident objector, most surrounding properties, including 'Balquhain' have large gardens in which trees are or could be planted. He submits that there is an unreasonable expectation that the trees on the site should continue to provide benefits to nearby properties at the expense of the applicant's ability to develop the site, particularly as the site is zoned to permit the construction of dwellings.

1. In supporting his position that development is permissible he cites BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399 at [117]-[118] where McClellan CJ said, in part, (with citations omitted):

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor, planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects....

118 In most cases it can be expected that the Court will approve an application to use a site for the purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

1. Mr O'Gorman-Hughes contends that whilst the council submitted that a less intensive form of residential development on the site might be acceptable, any development will necessitate the removal of most of the trees for the reasons given by the arborists. He asserts that the development will result in acceptable environmental outcomes because the proposed lot sizes are in excess of the minimum size and will enable the planting of more suitable trees. He also considers that even with a 'do nothing' approach, the trees will eventually fail and therefore a co-ordinated removal of the trees now will result in a better environmental outcome which is also cost-effective.

The respondent's position

1. Mr Seton for the council contends that this is a classic case of a sub-division proposed by an engineer without regard to specialist advice concerning the constraints of the site. In particular he considers that the absence of a detailed base plan showing the locations of trees that could be retained is a major flaw in the process and as a result, the proposed lot layout does not respond to that particular constraint.

1. With regard to the zone objectives, he states that cl 13(1)(a) of BMLEP states that consent shall not be granted to development unless it complies with the zone objectives. He contends that it is not sufficient for a development to be merely consistent with the objectives. In support of his contention he cites Cecil D Barker & Co v Blue Mountains City Council [2001] NSWLEC 244 at [111]-[113] where Sheahan J discusses the meaning of the word 'comply'. Relevantly '" comply" requires action "in accordance with" a stated object or command'.

1. In this regard he contends that the emphasis in the zone objectives for the Living - Conservation zone in which the site is located is on the maintenance and enhancement of the existing landscape setting and that the removal of so many trees will not achieve this. He considers that locality is characterised by large lots with trees and notes that the trees are not exempt under the council's Tree Preservation Order. He submits that the trees on the site make a significant contribution to the character of the locality.

1. Mr Seton contends that the council is not saying that development cannot occur on this site but considers the proposal to be an over-development and that notwithstanding the fact that the proposed lots are larger than the 1200sq m minimum, there is scope for larger lots in order to retain more trees. He cites the examples of the heritage-listed properties of 'Cleopatra' and 'Balquhain' as being larger lots. He also submits that the applicant has failed to produce a landscape plan that demonstrates how the landscape character is to be enhanced.

1. Mr Seton asserts that s 79C(b) requires the Court to consider, amongst other things, the likely environmental impacts of the development on the locality. He considers that the removal of trees on the site will have unacceptable impact on trees on surrounding properties. He contends it is unreasonable to impose such an impact especially as it can't be mitigated.

1. With respect to the through road, he contends that both the planners and the bush fires experts consider it to be practicable on the site and therefore capable of compliance with cl 84(3)(b) of BMLEP. With regard to the SEPP 1 objection, he considers that the applicant has failed to demonstrate that compliance is unreasonable. He contends that the Cross Street entrance is opposite a significant bush fire hazard and that as there is a viable alternative on the site it should be implemented. Mr Seton's position is that in order to comply with the requirement for a through road the sub-division must be redesigned and, as it is not the role of the Court or the council to do this, the appeal before the Court must be refused.

Findings

• Bushfire and the SEPP 1 objection

1. On 29 June 2010 the applicant lodged a SEPP 1 objection with the council with respect to cl 84(3)(b) and (c) of BMLEP and the requirement for a through road for access on bush fire prone land. The applicant contends that whilst there is no physical constraint to the construction of a through road, such a road is impractical and unnecessary and strict compliance would hinder the orderly and economic development of the land that is suited for residential purposes.

1. The reasons given are that:

• the proposed cu-de-sacs are about 75m and 100m long and each will serve only 5 dwellings;
• a through road would impact on the development potential of the land and offer no real safety benefit;
• the proposed roads will enable fire vehicles to enter from existing sealed roads surrounding the site;
• the removal of the Pinus radiata will reduce the fire risk;
• the cul-de-sacs will provide better amenity for the residents of the subdivision and reduce council's long term maintenance of unnecessary roads; and
• the cul-de-sacs are not objected to by the RFS.

1. As the proposed subdivision is integrated development, the NSW RFS notified the developer of its response pursuant to s 100B of the Rural Fires Act 1997 . The requirement relevant to this matter regards access. Condition 3 in the letter from the RFS dated 29 September 2008 states:

3. The proposed roads shall comply with 4.1.3(1) of Planning for Bushfire Protection 2006.

1. As noted in [31], 4.1.3 (1) of PBP2006, the performance criteria requires public roads to be wide enough and designed so as to allow safe access for fire fighters while residents are evacuating the area. In terms of acceptable solutions for ensuring this, roads are to be through roads and whilst cul-de-sacs are not recommended they are acceptable if unavoidable, are less than 200 m long and appropriately sign posted.

1. In response to a need for further clarification regarding condition 3, the council wrote to the RFS. The letter in part states:

The proposed new roads are both cul-de-sacs, both less than 200m in length, with 6.5m wide carriageways within a 15m wide road reserve. The turning areas comprise 8.5m radius paved and kerb and guttered turning circles within a 12m radius road reserve.

Based on Council Officer's consultation with your [representative], a recommended condition of consent included the provision of an all-weather gravel hardstand between the back of the kerb and the lot boundaries around both turning circles.

Please report on whether the cul-de-sacs as proposed and conditioned satisfy the requirements of the Rural Fire service and explain why this is an acceptable solution. If the cul-de-sacs are not acceptable, please report on the specific requirements to satisfy the Rural Fire Service...

1. The response from the RFS dated 21 July 2010 states:

Planning for Bush Fire Protection 2006 indicates that cul-de-sacs (dead end roads) incorporate a minimum 12 metres outer radius turning circle. The information provided indicates that the proposed turning areas comprise an 8.5m radius paved with kerb and guttering within a 12 metre radius road reserve. To achieve compliance, the 12 metre radius will need to be trafficable, and the capacity of the road surface will need to be sufficient to carry fully loaded fire fighting vehicles. Provided the proposed all-weather gravel hardstand is capable of carrying fully loaded fire fighting vehicles, and kerbing is roll top, this is an acceptable solution.

As the proposed carriageway is 6.5 metres, the roads must also provide parking within parking bays and locate services outside the parking bays to ensure accessibility to reticulated water for fire suppression.

1. I note that the reports prepared by council staff for council meetings of the 29 June 2010 and 14 December 2010, whilst noting the non-compliance, the council considers the installation of a through road to be not warranted as it would adversely affect the development potential of the land and that splitting the roads would provide better amenity by minimising the likelihood of through traffic. The council relies on the findings of the RFS and recommends conditioning the consent accordingly.

1. I also note that the applicant has subsequently agreed to an increase in the road width from 6.5m to 8m.

1. In reviewing the evidence and considering the submissions of the parties, I make the following findings regarding the SEPP 1 objection to compliance with cl 84(3)(b) and (c) of BMLEP and the requirement for a through road for access to bush fire prone land. These comments follow the requirements for assessment of SEPP 1 objections as discussed by Lloyd J in Winton Property Group Ltd v North Sydney Council [2001] NSWLEC 46 and expanded by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827.

1. The questions posed by Lloyd J in Winton are summarised in Allen and anor v Cessnock City Council [2010] NSWLEC 1179 as:

(1)   Is the planning control in question a development standard?

(2)   What is the underlying object or purpose of the standard?

(3)   Is compliance with the development standard consistent with the aims of the policy and, in particular, does compliance with the development standard tend to hinder the attainment of the objectives specified in section 5 (a)(i) and (ii) of the Act?

(4)   Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? and

(5)   Is the objection well founded?

1. I am satisfied that cl 84(3)(b) is a development standard but it is not an absolute prohibition on the development. Similarly I am satisfied that the underlying purpose of cl 84 of BLEP is to ensure that adequate provision is made for public and private road access on bush-fire prone land. Whilst a through road is practicable given the absence of topographical constraints, in the circumstances of this matter, I am satisfied that strict compliance is both unreasonable and unnecessary. I find that strict compliance with the development standard would not necessarily offend s 5(a)(i) of the Act but it would limit the attainment of s 5(a)(ii) and the achievement of the orderly and economic development of the land. Whilst the proposed lot size exceeds the minimum specified for the zone and therefore it might be argued that the layout could in theory be redesigned to accommodate a through road and 10 lots, the configuration of the site is such that it is constricted by surrounding properties in the central area through which a through road would traverse. This would reduce the development potential of the site. The configuration of the site is such that there is effectively two obvious portions each of which has an access handle to a local through road.

1. I consider the alternative solution proposed by the applicant, that is the two cul-de-sacs, satisfy the provision of safe access to and from the proposed lots. Whilst there are two sites identified as Category 1 bush fire prone land opposite the two proposed access points, the access points themselves are in a bush fire buffer zone and the Category 1 blocks (as mapped by BMCC) do not fully extend across either of the proposed entrances. Access to and from each of the proposed cul-de-sacs can occur in two directions onto fully paved roads that readily connect with other through roads. The maximum distance of any part of any lot from the nearest intersection of the surrounding road network is approximately 150m, much less than 500m. The figure of 500m is relevant as cl 84(4) of BMLEP concerns perimeter roads (accepted by the fire experts as being more dangerous roads because of potential exposure) which must link to a public road network at intervals of no more than 500m.

1. Similarly, the cul-du-sacs are relatively short being approximately 75m and 100m, far less than the 200m considered to be the maximum by the RFS. I agree with Mr O'Gorman-Hughes that congestion leading to blocking of access is unlikely given that each cul-de-sac only services 5 properties.

1. With regard to the actual bush fire threat posed by the nearby bush blocks - one of which is zoned for residential purposes and the other a reserve, I find that the differences between the bush fire experts to be so disparate as to be of little assistance to the Court. The use of different methods, models and assumptions is confusing. Overall, I am not satisfied on the evidence that the bush fire risk is such that the provision of a through road is a necessity. I am content to accept the RFS findings that the proposal is acceptable.

1. I consider the objection to be well founded and the reasons given in the SEPP 1 objection outlined in [64] to be valid. Overall I find that neither the council staff nor the RFS found the proposal for the two cul-de-sacs to be unreasonable, and provided the roads are constructed in accordance with the RFS' response in [68], the cul-de-sacs are acceptable.

1. For the forgoing reasons I am satisfied that the SEPP 1 objection be upheld and the two cul-de-sacs be permitted.

Tree removal

1. The council's contentions regarding tree removal go to adverse impacts on the landscape character and traditional garden setting of the locality and thus inconsistency with the zone objectives, as well as unacceptable impacts on trees on adjoining properties that are not in the public interest.

1. I accept the evidence of the arborists that the overwhelming majority of trees on the site are Pinus radiata in poor condition with a short safe useful life expectancy and when considered in the context of future development of the site, few trees are worthy of retention. I also agree that, given the form of the trees and their proximity to one another, the removal of any substantial group of trees will predispose others, including trees on some adjoining properties, to potential wind-throw especially from winds blowing from the west and west-southwest. I accept Mr O'Gorman-Hughes' submission that a 'do nothing' approach will inevitably lead to the same result of the loss of trees from the site. As the trees die or fail, nearby trees may then fail because of wind exposure or through inevitable natural attrition.

1. I also accept the evidence of the arborists and Mr O'Gorman-Hughes' submissions that the removal of the Pines will enable the replanting of the site with a more appropriate range of species that are more consistent with the 'traditional landscape settings' which typify many of the larger allotments within the Blue Mountains local government area. However, I also accept Mr Seton's submissions that the applicant has failed to provide a landscape plan that demonstrates how the landscape character of the site and the locality is to be enhanced at the subdivision stage.

1. I note from reading the internal council reports and the BMLEP, that BMLEP does not require a landscape plan to be submitted for a subdivision although cl D8.11.22 of the BMDCP states " New roads shall include landscaping/ street tree planting in character with the area " . However, I agree with Mr Seton that a landscape plan for the proposed public roads should be provided in order to demonstrate that suitable species that enhance the character of the area will be planted.

1. I do not accept the council's position that the trees on the site are typical of a 'traditional garden setting'. The pines on the site are more typical of an unmanaged plantation or naturalised forest. Apart from the plantings around the existing dwelling and the trees once associated with 'Cleopatra', I consider there to be very little vegetation on the site that could in any way be considered as a traditional garden. Whilst the Pines are certainly a component of the landscape character of the immediate locality, including a nearby property known as 'Parklands', it is also clear from the aerial photographs provided in exhibit 3, and by driving towards Blackheath town centre, that large groups of Pinus radiata are not a dominant feature of the landscape character of the wider locality.

1. I note in the reports prepared for the council meetings that the council's Tree Management Officer, who is an arborist, supports the issue of tree removal. The reports indicate that he reviewed the arborists' reports, and inspected the trees on the site as well as those nominated as being at risk on adjoining properties. The internal reports indicate a thorough consideration of the issues raised by nearby residents. The reports support the removal of the trees subject to detailed conditions of consent. In those internal reports I also note the detailed responses to issues concerning the trees raised by resident objectors.

1. With respect to the two trees located on the access handles off Cross and Cleopatra Streets, I consider that if their retention compromises locating the roads in the most appropriate position in order to minimise the impacts on adjoining properties, then the trees should be removed. It is my understanding that these access roads are to be public roads and will therefore eventually come under the control of the council. I do not think it reasonable to transfer the burden of maintaining and ultimately removing the trees onto the council. The removal of these trees will enable the establishment of more appropriate street trees and other landscaping elements that will help ameliorate the impacts on the adjoining properties. It was noted during the hearing that should the tree in the access road off Cross Street be retained, there would be a permanent kink in the road. Given the discussions around the need for quick and easy access in the event of a bush fire, such an obstruction may be unwise.

1. Based on these findings I do not consider that the proposal offends zone objective (a) in cl 23 BMLEP as, apart from the dwelling to be retained, there is no traditional garden setting on the site and thus this objective is almost incapable of being satisfied by the current vegetation on the site. I am satisfied that the conditioning of a landscape plan that includes canopy and other species typical of the larger allotments in the locality that will enhance the character of the site will achieve this objective. However I consider this objective will be more relevant to any subsequent development applications for individual lots. The proposed lots are larger than the minimum specified in the BMLEP and a single dwelling is proposed on each lot.

1. With respect to zone objective (c), the arborists identified a number of relatively isolated and healthy trees capable of retention. The retention of these trees, as well as a landscape plan showing the treatment of the internal roads following the principles outlined in [83], will enable compliance with this objective. For the same reasons outlined above, traditional garden settings are not a characteristic of this site but could be, only if the majority of the Pines are removed. The retention of a limited number of established trees (that the arborists are satisfied will remain stable) will retain some of the prominent landscape elements on the site. I am satisfied that this objective is capable of satisfaction by conditions.

1. In considering objective (d), I agree with Mr O'Gorman-Hughes that the wording of the objective requires either the retention of established gardens or the re-establishment of landscape settings. As stated above, the only established gardens on the site are those surrounding the existing dwelling. As it stands, the density and number of Pines on the site effectively prevent the re-establishment of a landscape setting; only the removal of the majority of the Pines will enable compliance with this objective.

1. In conclusion, in its current state, I consider that the site is out of character with the objectives for the Living - Conservation zone and their focus on 'traditional garden settings' and therefore, because of its unique character, is virtually incapable of compliance with the zone objectives as it stands. As previously stated, the site is more akin to an unmanaged plantation than a garden. I consider the only way of achieving compliance is to remove the majority of the trees in order to create sites capable of supporting a 'traditional garden setting'. I am satisfied that the retention of the trees nominated by the arborists, appropriate road design to achieve this and the production of a landscape plan that includes appropriate canopy and other species can be conditioned and will enable compliance with the zone objectives.

1. In considering the findings of McClellan in BGP Properties , the proposed development is permissible within the zone. Whilst on the face of it, the environmental impacts by way of the removal of approximately 350 trees would seem to the person in the street as extreme, in my view, maintaining the status quo would not improve the environmental outcomes for the site. Removing the majority of the pines and managing the weedy understorey will create an environment in which new and more appropriate landscapes can be established.

1. With respect to cl 76 and the curtilage of a heritage item, the arborists have recommended the retention of a number of Cupressus macrocarpa and some Pinus radiata near the north-eastern boundary of 'Balquhain' as well as the retention of a number of ornamental deciduous trees and conifers that form the extension of the grounds of 'Cleopatra'. I consider the retention of this vegetation will be sufficient to retain the visual setting, and not unduly affect the heritage significance, of those two properties. I also agree with Mr O'Gorman-Hughes that the grounds of 'Balquhain' are extensive and there is adequate space on that property for the establishment of trees if additional vegetative screening is required. With regards to 'Cleopatra', the Pines do provide a distant backdrop however that property is well endowed with established and relatively tall trees that effectively screen the house from the proposed sub-division.

Objectors' concerns and the public interest

1. Under s 79C(1)(e) I must consider the public interest. In this regard I have considered the issues raised by the objectors. Whilst I accept that the removal of the majority of the Pines will result in a change in the visual character of the locality, that change is also inevitable if nothing happens to the site. The site is not a public reserve but privately owned land that is in an area zoned for residential development. The amenity provided by the trees is a 'borrowed' amenity for a number of the objectors. I note that the majority of properties surrounding the site have established trees or the room to grow them. With respect to wind protection I also consider it unreasonable for one property to be expected to provide wind protection at the expense of limiting the permissible development of that site.

1. I accept the advice of the arborists that some trees on some adjoining properties will be exposed to more wind and therefore at risk of damage or failure. I have reviewed the process undertaken by the applicant in engaging with the affected owners and the conditional agreement given by the majority of those owners. I note the council's internal report on these matters and consider the proposed conditions of consent to go a considerable way in addressing these concerns.

1. I consider that the setback of the roads from the adjoining properties is adequate and that the provision of two cul-de-sacs rather than a through road will limit the volume of traffic. A suitable landscape plan will be required to mitigate the visual impacts of the access roads.

1. A number of concerns were raised about the use of herbicide and possible drift. I am satisfied that these concerns can be addressed by a detailed weed management plan.

1. With respect to the location and extent of the drainage works, the arborists are to be involved with the detailed design of these works and in the preparation of specifications for their implementation.

1. I consider the peer review undertaken by Penrith City Council to be of value in addressing the broader public interest. I note the recommendations:

It appears that a robust assessment has been undertaken and address of matters raised in this review prior to the determination of the development application will ensure the integrity of this process.

The recommendation for approval of the development application is supported by strong evidence of consultation and professional advice. It has been demonstrated that this advice has been heeded.

The unique position of the development application is noted whereby there is an identified risk from tree failure on the site in doing nothing and upon adjoining properties identified as 'at risk' in doing something.

Council has demonstrated consideration of options and reasons for both refusing and approving the development application seeking legal advice for both scenarios. The assessment report provides sufficient information for council to exercise its decision-making functions.

1. The peer review assessed the internal assessment report prepared for the council meeting of 29 June 2010. The review suggested changes to and or clarification of a number of proposed conditions of consent. I also note that following the council meeting further information was obtained including the clarification from the RFS and the engagement of an independent arborist. Having read the internal council report prepared for the council meeting of 14 December 2010, I am satisfied that the issues raised in the peer review have been addressed.

1. Overall, notwithstanding the short to medium term impacts that the removal of the trees will have, I am satisfied that the proposal is acceptable and in the broader public interest. The lots are large and with the imposition of comprehensive conditions of consent I am satisfied that the risks associated with the proposal can be satisfactorily mitigated. The peer review process and the detailed internal council assessment reports all indicate a through process of consultation and consideration of the issues and as such, I am satisfied that the public interest and the other matters to be considered under s 79C of the Act have been duly considered and the appeal should be upheld subject to conditions.

Conditions

1. During the hearing a number of conditions of consent were discussed and some changes agreed by the parties; others are to be determined by the Court.

1. The parties agreed that conditions 6, 8, 12, 15, 18 and 30, in so far as they relate to trees, were to be refined by the parties' arborists. Condition 6 concerning tree removal is agreed however the 'tree removal plan' is to be incorporated into a broader 'Tree Management Plan' (TMP). Conditions 8 and 12 concerning trenching - the respondent's version of 10 m is preferred however this may be adequately addressed by detailed specifications in the TMP. It was agreed that conditions 15a and 15 could be incorporated into a condition covering the TMP. With respect to condition 30, a tree protection plan is to be included in the tree management plan. Therefore, with respect to the trees, it was agreed that the parties' arborists were to prepare a TMP for the site that includes trees to be retained, a tree removal plan, and a tree protection plan. The plan must also include a tree removal and management plan for trees on adjoining properties identified as being at risk. The wording in the conditions is to be adjusted to reflect the incorporation of a TMP. The approval of the TMP by council is to be a deferred commencement condition.

1. Since the completion of the hearing, the parties' arborists have prepared joint and individual versions of a condition requiring the applicant to submit a Tree Management Plan (TMP) to council for its approval prior to the operation of development consent. In reviewing the various versions of the new condition I find that they lack the detail given in existing conditions 6, 15a and 15. Whilst there may be an assumption that the detail in the original conditions would be included in a TMP, I am not convinced there is certainty of this happening unless the original conditions (as revised for consistency) are included in the final conditions of consent.

1. The production of an overall TMP was envisaged to be a comprehensive document to include tree removal operations (variously called the 'tree removal plan' in condition 6 and 'tree removal management plan' in conditions 15a and 15), a tree protection plan for all stages of the development, and an updated survey plan. Given the lack of detail in the new condition I propose that conditions 6, 15a and 15 be reinstated as originally drafted (but revised by this judgment) and the details and specific requirements in those conditions be expanded in the TMP. As the council is the normal consent authority for works on trees on private property, the TMP is to be approved by council rather than any other Principal Private Certifying Authority. Conditions 15a and 15 are to be amended accordingly. The wording in those conditions is also to refer to the TMP.

1. With respect to the new condition requiring a TMP I offer the following alternative, which addresses the requirements listed by the arborists but summarises them. It also incorporates the findings in this judgment at [86].

1A: The consent is not to operate until the applicant submits and the Council approves a Tree Management Plan prepared by a suitably qualified arborist. The Tree Management Plan is to include:

(a)   an updated survey showing the location of all trees on the site and any trees on adjoining properties where trees are within 10m of the site boundaries. The survey is to identify all trees for removal (including those on adjoining properties); trees to be retained on the site; and trees on adjoining properties (within 10 m of the boundary) that are to be retained but are deemed to be potentially at risk. Exhibit H is to be amended to show these details and to include the removal of the Pinus radiata in the access road from Cross Street and the Pinus radiata in the access road from Cleopatra Street;

(b)   a tree inspection and removal plan for the site and the trees on the properties identified in Conditions 6, 15a and 15 incorporating the details stated in those conditions.

(c)   a detailed tree protection plan for all trees to be retained including tree protection measures required before and during tree removal operations and site works associated with the subdivision stage . The tree protection plan is to be prepared in accordance with Australian Standard AS 4970 Protection of trees on development sites. The tree protection plan is to specify an arborist to supervise trenching or under-boring for water, sewer, electricity and telephone connections/supply and stormwater where appropriate in the vicinity of trees to be retained on the site and on adjoining properties.

1. The differences between the parties' arborists concerning the follow up inspections of the trees on adjoining properties discussed in [47] are raised in their versions of the new condition. Clauses 6, 15a and 15 state that certain trees on nominated properties are to be inspected at 6 and 12 months after the tree removal operations. This reflects the opinion of Ms Mackenzie. Mr Ford did not consider post-removal inspections to be necessary. I consider that a reasonable compromise to be: one inspection of trees on adjoining properties, nominated for removal or potentially at risk, prior to removal; and one inspection of trees retained but identified as potentially at risk in the September following the removal of the trees. If the tree removal occurs during August/September of any year, the following inspection should be between 6 and 12 months after removal. Conditions 6, 15a and 15 are to be amended accordingly.

1. The applicant seeks deletion of Condition 11, which concerns the construction of the battleaxe driveways and the installation of service conduits for Lots 7, 9 and 10. The basis for this condition is cl D8.11.12 - Location of Access Driveways in Part 8 - Subdivision - of the Blue Mountains Better Living DCP (BMDCP). This states:

D.8.11.12 All lots should identify possible driveway locations. If there is only one possible or likely location then the driveway shall be constructed as part of the subdivision works.

1. The plan of the proposed subdivision and the lot layout shows that Lots 7, 9 and 10 are accessed by 4.5m wide access handles off access road 1. It is therefore clear that there is only one possible or likely location of the driveways to these lots. Therefore the condition as proposed by the council should remain. However, given the location of several trees in the vicinity of the driveways to Lots 9 and 10, identified by the arborists as trees that could be retained, the design and construction of the driveways will require input from the arborists. The tree management plan must address tree protection measures for the trees most likely to be impacted by the construction of the driveways and the installation of the services.

1. Condition 14 concerns perimeter fencing. Whilst the applicant at one stage agreed to construct a 1.8m timber fence around the entire site, that has since been withdrawn. Council presses the condition. The applicant contends that there are no controls in the BMLEP or BMDCP that require the construction of a perimeter fence at the stage of subdivision and that this is a matter for individual lot owners under the Dividing Fences Act 1991. I am satisfied that this condition should be deleted for the reasons put forward by the applicant and any plans revised to remove reference to the fence.

1. Condition 18 requires a landscaping plan detailing the proposed street tree planting within the new roads. It should also include any additional landscaping treatment proposed along the new roads in order to ameliorate the visual impact between those roads and the adjoining properties. It was agreed that the parts of the condition relating to replacement plantings and landscaping of building setbacks of some lots be deleted.

1. Condition 51 seeks to impose a covenant under s 88/E of the Conveyancing Act 1919 with respect to on-site stormwater detention. Part (b) of the condition states:

b. The registered Proprietor shall indemnify the Council and any adjoining landholders against damage to their land arising from the failure of any component of the OSD or failure to clean, maintain and repair the OSD.

1. The applicant accepts the remainder of the condition but rejects part (b). As the council was unable to provide any compelling argument as to why this should be imposed, I see no reason why it should not be deleted. In this I find with the applicant.

1. Conditions 52, 53 and 54 also refer to restrictions on use of the land pursuant to s 88B/E of the Conveyancing Act 1919 . They propose restrictions on building setbacks and 'no development areas' which include groups of trees to be protected; a positive covenant on the type of landscaping on each lot; and a single storey height restriction on Lots 1,2, 6 and 7. The council contends that some or all of the restrictions should be imposed on the future lots in order to ensure future local amenity (including that provided by established trees) and to minimise the impacts of future development on the heritage value of the adjoining heritage items. Mr O'Gorman-Hughes contends that the issues underlying the imposition of the restrictions are matters that should be considered when individual development applications are lodged and are not appropriate at the sub-division stage. He contends that such restrictions would restrict flexibility in the determination of future development applications.

1. Both advocates considered the planning principle in Parrott v Kiama [2004] NSWLEC 77 regarding when a residential subdivision application should impose constraints on future development. Roseth SC at [17] states;

17 When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them.

1. With respect to these three tests, Mr O'Gorman-Hughes considers the first to be irrelevant as the lots are larger than required; secondly, the site is not especially environmentally sensitive; and thirdly, he considers there are no significant likely impacts on neighbouring properties that are not incapable of being mitigated (because of the large lot size) and considered at the individual DA stage. Mr Seton considers the imposition of constraints is reasonable to ensure that prospective residents are aware of the importance council places on the protection of trees and the amenity they provide. Similarly, he contends that height limits on future dwellings will meet council's heritage advisor's concerns regarding minimising any adverse impacts of any development on the visual setting of the two adjoining heritage-listed properties.

1. In regards to proposed conditions 52, 53 and 54 I consider these issues are more appropriately dealt with at the stage at which development applications are lodged for individual lots. The indicative locations of the building foot prints show reasonable set backs from adjoining properties and appear to be sufficiently generous to enable considerable refinement for the purpose of ensuring adequate tree retention or space for landscaping at the DA stage for the individual lots. Similarly with the height and size of the future dwellings, these will be assessed on their merits and in accordance with the planning controls, which include consideration of tree retention, landscaping and heritage. Therefore, I determine that these conditions be deleted.

Conclusion

1. I am satisfied, having regard to the evidence addressing the relevant matters to be considered under s 79C of the Act, the contentions raised by council and issues raised by resident objectors, that the development application for a 10 lot subdivision can be approved, subject to the conditions as agreed by the parties and in accordance with my findings in paragraphs [101] to [116] above.

1. The parties are directed to provide a copy of the final conditions of consent by close of business 18 July 2011, following which I will make the following orders in chambers:

(1) Appeal 10079 of 2011 is upheld.

(2) Development application No. S/56/2008 for a 10 lot subdivision of Lot 27 DP 212973 112 Cleopatra Street, Blackheath is approved subject to conditions in Annexure A.

(3) The exhibits are returned except for exhibits 2, 5, A, B & H.

J Fakes

Commissioner of the Court

ANNEXURE A

Decision last updated: 02 August 2011