Julian Malnic v Northern Beaches Council

[2017] NSWLEC 1761

Land and Environment Court

New South Wales

Medium Neutral Citation:	Julian Malnic & anor v Northern Beaches Council [2017] NSWLEC 1761
Hearing dates:	22 May 2017
Date of orders:	09 June 2017
Decision date:	09 June 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is dismissed 2. Modification application to amend conditions of development consent 2015/0556 associated with the subdivision at 145-147 Booralie Road, Duffys Forest is refused. 3. The Exhibits, except Exhibits A, B, C, D and 2, are returned.
Catchwords:	MODIFICATION APPLICATION – conditions on subdivision; restriction on dogs and horses; environmental impacts
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Warringah Local Environmental Plan 2011
Cases Cited:	Malnic v Northern Beaches Council [2016] NSWLEC 1353 Project Venture Management Pty Ltd v Warringah Shire Council & Anor [2006] NSWLEC754 Andre & anor v Northern Beaches Council [2016] NSWLEC 1478
Category:	Principal judgment
Parties:	Julian Malnic (First Applicant) Diane Malnic (Second Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: Mr T Howard (Applicant)   Solicitors: Mr T Sattler, Sattler & Associates (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2016/383520
Publication restriction:	No

Judgment

1. COMMISSIONER: In August 2016, the Court approved a subdivision of land known as 145-147 Booralie Road, Duffys Forest (the site) from two lots into three subject to a number of conditions: Malnic v Northern Beaches Council [2016] NSWLEC 1353. I presided over that matter.

2. The same applicant (or rather applicants being the Malnics) subsequently lodged a modification application under section 96(8) of the Environmental Planning and Assessment Act 1979 to amend five conditions of consent attached to the Court approval. One condition, Condition 1, related to correct reference to plans and an operative consent and the modifications sought to this condition were not opposed by the Northern Beaches Council (the Council). Changes sought to a second condition, Condition 24, to reduce the number of nesting boxes from 20 to 10 were also not opposed by the Council. Two further conditions, Conditions 7 and 15, were subsequently resolved by Council clearance of these conditions. There remained therefore one condition in dispute, Condition 65, and this formed the basis of the appeal.

3. Condition 65 reads as follows:

65. Restriction on animals

No companion animals (i.e. cats and dogs other than guide dogs for assistance of vision impaired persons), horses or other animals that fall within the definition of “stock’ under the Rural Lands Protection Act 1998 are permitted on any of the approved lots.

Prior to issue of subdivision certificate, a Section 88B instrument which includes the restrictive covenant, which prohibits the keeping of the said animals, in registrable form, shall be prepared by the owner of the land and produced to Council for approval and execution. Once a subdivision certificate has been issued, the covenant is to be registered on the title to each of the lots. The instrument must stipulate that the only person with the right to release, vary or modify the covenant is the Council. All costs associated with the preparation, execution and registration of the instrument are to be borne by the owner of the land.

Reason: Protection of biodiversity.

4. The applicants sought to amend Condition 65 to enable up to two horses and two dogs to be permitted on each of the approved Lots 1 and 2. The Council opposed any modification to the condition.

Background

5. Consideration of the modification sought to Condition 65 needs to be considered in the context of my deliberations in Malnic. The following are relevant extracts from that decision:

2. The subdivision raises a number of issues principally associated with environmental and bushfire protection given the location and physical characteristics of the site and the history of development approval for the two lots which comprise it, including a Court approval in 2006 with stringent environmental conditions.

5. The application sought the subdivision of two existing lots at No. 145 Booralie Road (Lot 258 DP 752017) and No. 147 Booralie Road (Lot 2 DP 1132323) (the site) to create three new lots. The creation of easements for drainage and vehicular access were proposed as part of the subdivision.

7. A relevant consideration in determining the application is a previous consent for subdivision of land which included part of the site granted by the Court in December 2006; see Project Venture Management Pty Ltd v Warringah Shire Council & Anor [2006] NSWLEC754 (the 2006 Court consent).

8. The 2006 Court consent approved the subdivision of Lot 446 DP48650 Booralie Road in accordance with an amended plan which limited the overall number of proposed lots to six, set aside a seventh lot as a dedicated reserve vested in the Council, incorporated bushfire Asset Protection Zones (APZs), and restricted development to defined ‘Development Areas’ for dwellings and effluent disposal, access tracks and fire trails.

9. The 2006 Court consent also required the conservation and dedication of areas of bushland. A substantial number of conditions were imposed including requiring an instrument on title setting out the terms of various positive and restrictive covenants given pursuant to sections 88B and 88E of the Conveyancing Act 1919 (the Instrument).

10. A positive covenant was registered for all lots, including on approved Lot 2, which designated a Conservation Area and APZs based on the approved building footprint for the approved lots.

6. In granting approval to the subdivision having regard to all of the evidence of environmental impacts at the time, I was also required to address contested conditions of consent. The following are relevant extracts which deal with that issue:

188. The last contested condition is Condition 65. This reads as follows:

65. Restriction on animals

No companion animals (i.e. cats and dogs other than guide dogs for assistance of vision impaired persons), horses or other animals that fall within the definition of “stock’ under the Rural Lands Protection Act 1998 are permitted on Lot 2 DP1132323 and Lot 258 DP752017.

Prior to issue of subdivision certificate, a Section 88b instrument which includes the restrictive covenant, which prohibits the keeping of the said animals, in registrable form, shall be prepared by the owner of the land and produced to Council for approval and execution. Once a subdivision certificate has been issued, the covenant is to be registered on the title to each of the lots. The instrument must stipulate that the only person with the right to release, vary or modify the covenant is the Council. All costs associated with the preparation, execution and registration of the instrument are to be borne by the owner of the land.

Reason: Protection of biodiversity.

189. The applicant’s first position on Condition 65 is that it ought to be deleted in its entirety as the areas of proposed Lots 1 and 2 affected by conservation restrictions on the use of land (and supported by the ESMP) will not allow dogs, cats, stock etc. into the Conservation Area but leaves the remainder of those lots able to be set aside to have appropriate animals. If this position is not supported, then the applicant seeks the condition to be amended to allow a dog, pony or horse as a pet only within the parts of proposed Lots 1 and 2 that are not affected by proposed restrictions on the use of land for conservation purposes.

190. The Council opposed the removal of the condition arguing that the extremely sensitive nature of the land, the proposed segregated Conservation Area and the various threatened species and local wildlife that will inhabit it, means that it is inappropriate for dogs, cats, ponies or horses to be on any land in this subdivision. Further, this condition brings the subdivision into line with other subdivisions that were approved by the Court consent in 2006 and will be consistent with the existing situation with the portion of the site that is currently 147 Booralie Road.

191. In Project Venture, then Commissioner Moore concluded, for the subdivision that created approved Lot 2, that cats, dogs and larger herbivores (eg ponies and horses), and stock in general, should be banned. A condition reflecting Condition 65 was imposed accordingly.

192. No evidence was given to the Court by the applicant as to why that condition should not similarly apply to the current subdivision. Whilst I give limited weight to it for the reasons previously indicated, I note that in objecting to the subdivision, the Terrey Hills Progress Association would also seek the same conditions as the 2006 Court consent.

193. Allowing pets on any part of the site would, in my view, introduce a management regime which, at best, would be difficult to enforce and, at worst, would introduce an unnecessary element of risk to the environmental features of the site and the Conservation Area in particular. Condition 65 as sought by the Council is imposed accordingly but amended so that the prohibition extends to all of the proposed lots rather than the current lots. In this regard, the condition appears to have been copied from the 2006 Court consent and the lot references not updated. The first paragraph of Condition 65 will therefore be amended to read as follows:

65. Restriction on animals

No companion animals (i.e. cats and dogs other than guide dogs for assistance of vision impaired persons), horses or other animals that fall within the definition of “stock’ under the Rural Lands Protection Act 1998 are permitted on any of the approved lots.

7. The applicants’ principal argument was that 145 Booralie Road (Lot 258) was not part of the 2006 subdivision approved by the Court: Project Venture Management Pty Ltd v Warringah Shire Council & Anor [2006] NSWLEC754 and was therefore not currently the subject of restrictions on horses and dogs. Further, there was already a dog and a horse on that property and allowing up to two dogs and two horses on approved Lots 1 and 2 in areas contained in the original Lot 258, but not the more environmentally sensitive approved Lot 3, would not have any significant adverse environmental impacts. Finally, it would provide the applicants the same ‘rights’ to keep these animals as most property owners in Duffys Forest enjoyed rather than take away their existing rights to keep animals on Lot 258. As a minimum that right should still apply to approved Lot 1.

8. The Council’s position was that including Lot 258 into the 2016 application for subdivision provided scrutiny of its environmental features, which included a proposed Conservation Area on the land to be protected through a section 88B instrument as part of the proposed subdivision, and provided the opportunity to impose more stringent controls on keeping of animals over that lot. Further, that those controls were warranted given the agreed conservation values of all three of the approved lots.

9. The Council questioned how many times this issue had to be considered by the Court and re-iterated my finding in Malnic that allowing pets on any part of the site would introduce a management regime which, at best, would be difficult to enforce and, at worst, would introduce an unnecessary element of risk to the environmental features of the site, and the Conservation Areas in particular, and of adjoining land.

10. The Council referenced Project Venture where the prohibition of dogs and horses was first applied by the Court to part of the land in 2006. The Council claimed that in Project Venture the applicant resisted the banning of any domestic animals other than cats. However, Moore C noted that the species impact statement prepared in support of the application had concluded that dogs should also be excluded. Given that fences were proposed which did not preclude native fauna to be able to access part of the site, in the interests of protecting the Southern Brown Bandicoot (SBB) (Isoodon obesulus) and Rosenberg’s Goanna (Varanus rosenbergi), both threatened species, the then Commissioner Moore concluded that it was appropriate that dogs also be banned from the subdivision.

11. In terms of horses, Moore C was also not convinced that large herbivores, including horses, should be permitted stating:

107. With respect to the larger herbivores, I have carefully considered the terms of the material contained in Exhibit C (which is the stormwater management plan report).

108. I am unable to be satisfied, on the basis of the material contained in that document, that the stormwater management measures proposed for the site would provide an adequate protection from the transmission of nutrients in run off from the site, from the droppings of large herbivores, if they were to be permitted to be kept on the site. I also have concerns (but I have no evidence about it) that there might not be sufficient area for such animals.

109. As a result of not having evidence, I take no regard to that point – although it was put to me by way of submission on behalf of the second respondent (but only in passing).

110. I am satisfied that, with respect to the keeping of large herbivores, the applicant has not provided a sufficient basis upon which I could be satisfied that it would be an acceptable activity to be permitted.

12. The Council argued that no evidence was provided to address the issue Commissioner Moore had raised in Project Venture in terms of nutrient runoff from horses impacting the wetland or environmentally sensitive areas other than the applicants offering to collect and dispose of horse droppings.

13. Further, by applying to include Lot 258 in a new application with adjoining Lot 2 in order to obtain an additional lot overall, Mr Patterson for the Council submitted that the applicants had brought that lot into the same restrictive regime as applied to Lot 2. Further, that I had already dealt with the issue in my decision and in my specific requirement to impose Condition 65 across all of the approved lots rather than restrict it to the land in which the restriction currently applied.

14. Mr Howard, counsel for the applicants, submitted however that the Court should consider the zoning of the land under the Warringah Local Environmental Plan 2011 which was for rural pursuits not for environmental protection. In this zoning, a range of rural uses were permitted and with rural uses it was typical to have horses and dogs. Mr Howard submitted that the proposal met the objectives of the zone being Primary Production Small Lots RU4. The objectives of that zone are:

• To enable sustainable primary industry and other compatible land uses.

• To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

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

• To minimise the impact of development on long distance views of the area and on views to and from adjacent national parks and bushland.

• To maintain and enhance the natural landscape including landform and vegetation.

• To ensure low intensity of land use other than land uses that are primary industry enterprises.

• To maintain the rural and scenic character of the land.

15. Mr Patterson for the Council argued that the keeping of animals associated with the subdivision and development of the land was not a use, per se, but was ancillary to the approved development. In order for the proposed use of an additional lot and dwelling to be acceptable, the prohibition on such animals was necessary. Further the Council was not arguing that the application was not in accordance with the zoning or its objectives.

16. The Council also submitted that Lot 258, particularly in the area of approved Lot 2, had similar environmental characteristics to existing Lot 2 and therefore should have the same conditions imposed on any further development of it. The site is in close proximity to the Ku-Ring-Gai National Park (the National Park), has a Conservation Area now designated over it which Lot 258 previously did not have, and there was no environmental justification to exempt it from stringent controls once it was further subdivided.

Public submissions

17. The modification application was notified to surrounding landowners and over 30 submissions were lodged in response. Many, including the Terrey Hills Progress Association, objected to the removal of the prohibition on the basis of the potential adverse environmental impacts and the basis on which such a condition had been required in the first place by two previous Court decisions.

18. A number of letters supported the modification predominantly in the form of a pro-forma letter claiming that the keeping of animals was an essential part of the character and lifestyle of semi-rural Duffys Forest, that the condition removed the Malnics’ existing right to have contained domestic animals on the property, and that such a proposal could not possibly pose any significant threat to the environment.

19. Two objectors spoke at the hearing. Ms Harris and Ms Marlowe.

20. Ms Harris has been a member of the Duffys Forest Residents Association (DFRA) for many years. The DFRA was involved in the Project Venture Court proceedings. In evidence and/or in her written objection, Ms Harris claimed that the applicants’ ecologist recommended in those proceedings a prohibition on the keeping of dogs and cats in order to convince the Court that the impacts of the development on native fauna could be ameliorated. Further, that the DFRA was of the view that the 2006 development should not have been approved directly adjoining sensitive land and burdening the Council with enforcing the animal prohibition condition in perpetuity. Any decision to remove the prohibition would affect community harmony as other future residents began to develop the approved lots and sought the same dispensation.

21. Ms Harris did not support what she called the applicant’s assertion, now being spread throughout the local community, that the Council was to blame and was somehow cancelling their rights. She was concerned that the pro forma letters in support of the application were divisive and misleading, and only served to divide the community.

22. Whilst agreeing horses and dogs played a large part in the character of Duffys Forest, Ms Harris did not accept that they do not pose any significant threat to the Duffys Forest natural environment. She queried how many times the Court had to refuse such requests and questioned what additional evidence had been presented which would call into question the Court’s original judgements imposing such a condition. She urged the Court to resolve the issue of animals on these lots so that the Duffys Forest community didn’t continue to be divided on the issue and blame the Council.

23. Finally, Ms Harris argued that the existing rights of the applicants were changing as a result of their proposed subdivision which involved removal of over 1ha of bushland. However, their existing rights would remain unchanged if they decided not to proceed with the subdivision.

24. The Court also heard evidence from Ms Jacqui Marlow who also provided evidence at the Malnic hearing. Ms Marlow is a member of three local environmental groups. She opposed the removal of Condition 65 and had a concern with any domestic animals on any of the property given it adjoined the National Park. She supported the Court’s decision in imposing the condition with placing the controls across all the proposed lots making sense.

25. Ms Marlow was also concerned about precedent if the condition was removed - not only for Duffys Forest but for the sustainable development of Ingleside. She claimed that horses could distribute over 150 species of seeds and introduce exotic species. The Red-crowned toadlet would be extremely sensitive to additional nutrients coming from horse droppings and adding four horses to the property would increase the nutrient load to the adjoining Coastal Upland Swamp (CUS). She was worried about the impact on the CUS which was reliant on stormwater runoff from the site and believed the Court should adopt the precautionary principle in considering the application.

17. Ms Marlow also stated that she was a member of Sydney Metropolitan Wildlife Services (SMWS) and, in that capacity, claimed the SMWS had evidence of dogs attacking native fauna.

The evidence

27. The applicants provided affadavits which stated they currently had an existing family dog and a friend’s horse on Lot 258. Mr Malnic advised the Court that the dog was currently free to roam but tended to stay close to their family and home and had been trained not to attack native fauna. In terms of the horse, this was moved around the lot to access feed and was contained by a moveable electric fence.

28. The Malnics’ affadavits stated that, from their experience, both dogs and horses are easily kept within confined areas by appropriate fencing, the following of daily feeding and supervision.

29. Mr Malnic did not dispute that a young dog could potentially jump a 1m high fence but stressed the importance of training. The Malnics were not looking to have a second dog but wanted to provide flexibility in the future in this regard. In Mr Malnic’s opinion, people in the district cared for the environment. The Malnics purchased the adjoining Lot 2 aware of the restriction on keeping of animals on that property (which they were not proposing to remove).

30. Expert evidence on the environmental impacts of removing Condition 65 was provided by Ms Jennifer Powell for the Council and Dr David Robertson for the applicant. Dr Robertson has also been involved in the Project Venture appeal.

31. At the commencement of the hearing, evidence was still being prepared on the potential environmental impacts which did not assist with the conduct of the appeal.

32. The experts agreed that the SBB had the potential to occur on the site but that extensive and much better quality SBB habitat occurs in the surrounding National Park and Crown Lands. Also that the proposed Conservation Areas on each lot could be future SSB habitats. Dr Robertson noted however, that the closest records of the SBB were some 1km from site and the impact on this species was not raised as a significant issue in the Malnic appeal.

33. Dr Robertson advised that he had also completed an assessment of significance albeit conceding the assessment had been prepared hastily given the timing of the proceedings. Mr Howard submitted that the findings of that assessment were that the proposal would not create a significant risk over and above what already exists in the area.

34. Specifically, Dr Robertson argued that there is no scientific evidence or objective environmental impact assessment to support the restriction on pets and no data from the Duffys Forest locality that demonstrates that pet ownership jeopardises native flora or fauna in a way that would make otherwise viable local populations damaged or extinct. Moreover, as the majority of existing housing lots in Duffys Forest did not appear to have a restriction on pet ownership, Condition 65 seemed incongruous and unlikely to achieve a significantly improved ecological outcome in the locality.

35. Ms Powell argued that there is scientific evidence in the Recovery Plan for Southern Brown Bandicoot (DEC 2006) that demonstrates that dogs may damage populations of SBB. She also cited SBB Environmental Impact Assessment Guidelines (NWPS 2001) (the SBB Guidelines). These Guidelines reference a Species Impact Statement prepared by Ecotone Ecological Consultants in 2003 for the subdivision of Lot 447 Duffys Forest where it is quoted that dogs had been reported attacking bandicoots, cited incidence of dogs roaming off leash within identified habitat including within conservation reserves, and stated that bandicoot hair has turned up in dog scats. In her view, these instances all supported exclusion of companion animals (dogs and cats) from new residential developments adjacent to areas of high conservation values which included SBB habitats.

36. Ms Powell referenced Commonwealth government literature which stated that, for the northern population of bandicoot in the Ku-ring-gai Chase and Garigal National Parks, predation by dogs and foxes was known to be a major threat. Predation by dogs was also a threat to Rosenberg’s Goanna, also known to occur in the vicinity of the site.

37. Ms Powell also noted that there are a number properties located on the border between the developed area of Duffys Forest and Ku-ring-gai Chase National Park where there are restrictions on pets including the lots the subject of the 2006 Court approval, the former Waratah Park, Council reserves (which restrict dogs to leash), a number of schools, the NSW Gun Club, and Terrey Hills Golf Club.

38. Ms Powell argued that the intention of Condition 65 is to protect native wildlife and not introduce an unnecessary element of risk to the environmental features of the site and the Conservation Areas in particular. She referenced examples of other subdivision approvals in NSW where dog ownership had been banned in order to protect wildlife: for example Koala Beach Estate at Pottsville.

39. Ms Powell also referenced the SBB Guidelines which suggests that, where developments are proposed on or in the immediate vicinity of SBB habitat, mitigating measures should be adopted where practicable. One of those mitigating measures to negate or reduce predator impacts states as follows:

Feral predators such as cats, dogs and foxes pose a significant threat to I. obesulus. Control of these feral predators should be carried out where necessary. Similarly, domestic pets such as cats and dogs also have the potential to impact on bandicoots, at the interface between native vegetation and developed areas. Responsible pet ownership in such areas, and in some cases restrictions on pet ownership, may reduce potential for conflict.

40. Dr Robertson outlined his personal experience with dogs and horses. In his view, the fencing proposed to contain the proposed animals was appropriate with no clearance of vegetation required to erect the fencing. The dog fences were proposed to be 1m wide timber fencing with chicken mesh lining the inside which, in his experience, would be extremely effective at containing dogs and preventing them from wandering into inappropriate areas where they could cause harm.

41. Dr Robertson also considered there were sufficient reasons to compel dog owners to prevent dogs straying into areas of ecological significance, such as to stop tick infestation and snake bites.

42. In the Expert Joint Report (Exhibit 3), Dr Robertson states that he has formed the view that dogs and horses can be kept responsibly and without major detrimental environmental impact on the areas specified in Lots 1 and 2.

43. Ms Powell’s experience with dogs showed their potential hunting capabilities and the importance of management. She doubted that the fencing proposed would effectively contain those dogs which had a strong instinct for hunting/chasing animals and could successfully escape/jump fencing and traverse bushland to hunt animals. She referenced the Court’s approval of a commercial dog training facility also in Duffys Forest: Andre & anor v Northern Beaches Council [2016] NSWLEC 1478 where a much taller, sturdier fence was required and conditions imposed requiring dogs to be under the supervision of an adult when in the fenced enclosure at all times, and with a trial period imposed. In Andre, she noted that Commissioner Fakes took care to point out that the proposal related to the particular proposed use for a dog obedience and agility training facility by a nominated operator and that it was not an endorsement of the general keeping of dogs on the site.

44. Ms Powell argued that the closest record of SBB approximately 1km to the south showed that the three approved lots are, in effect, within the habitat range of this population estimated to be 0.5 – 9.0 hectares. This information and other information referenced in Project Venture show that both SSB and Rosenberg’s Goanna are likely to have habitat within the vicinity of the site.

45. She claimed that the extent of available SBB habitat in the nearby National Park was limited by the topography and associated vegetation types. She also noted that the presence of habitat in the National Park as a mitigating factor was clearly not considered influential in the Project Venture, Andre or Malnic decisions with the Court imposing conditions restricting pet ownership on the entirety of the lots or, in the case of Andre, with strong conditions to control dogs under a trial period.

46. Whilst the previous Court hearings had focused on potential impacts to threatened plants and Coastal Upland Swam, Ms Powell believed that the continuation of the restriction of pets to protect the ecological significance of the area was assumed throughout these hearings with the animal restriction condition being imposed on all the relevant Court approvals.

47. Ms Powell also noted that, in Project Venture, the approved subdivision identified that areas of each lot outside the Conservation Areas should be accessible to fauna (for foraging and movement). The keeping of dogs and horses in these areas would either prevent (by fencing) or potentially deter fauna from using these areas.

48. Dr Robertson indicated that the dog fence design could be adjusted to allow some native fauna through. He accepted that some fauna, particularly birds, could get over the fence and if so could be killed by dogs. However, he argued that the vast majority of both lots could be utilised by fauna effectively sharing the area set aside for the horses, and that the dog areas were away from the Conservation Areas.

49. Ms Powell considered that Dr Robertson’s impact assessment was simplistic; focusing on the impact of the loss of the area proposed to be used by dogs and horses and assuming that dogs will be effectively contained by fencing at all times. Thus it did not consider the risk of dogs escaping or jumping the fence and accessing adjacent high conservation habitat. In her view, these were manifestly inadequate arguments to support the proposal to allow dogs and horses on Lots 1 and 2. In her view they did not consider the complexities of potential fence deterioration, risk of dog escape, mixed messages to other private dwellings in the area, or the ability for effective monitoring and enforcement by Council.

50. In terms of the keeping of horses, Ms Powell was concerned with the possible additional nutrient loading, and with additional erosion and run-off in terms of the CUS. Also that the areas to contain the horses adjoined Conservation Areas.

51. Dr Robertson agreed that nutrient impacts were an important consideration but believed horse waste could be managed, such as by stabling. The Malnics had indicated that they collected and disposed of the droppings from the horse currently on Lot 258.

52. Ms Powell’s primary opposition to the application related to the dilution of the measures to protect threatened species with impact assessments prepared in isolation of potential cumulative impacts associated with lifting the restriction on other lots. She argued that modification to the restriction of dogs and horses on approved Lots 1 and 2 would provide a precedent for the five adjacent lots where the owners may wish to also keep dogs and horses themselves or improve the sale value of their property by removing the restriction.

53. Ms Powell contended that likely impacts to threatened species from dogs was a principle issue in the Project Venture case and the restriction on pet ownership was considered to be a key mitigating factor. Therefore, the incremental dilution of this measure raised doubts about the efficacy of the subdivision approval to effectively prevent a significant impact on these species in the long term.

54. Dr Robertson in response was critical that Ms Powell had not provided any assessments of significance for any of the fauna species that he had assessed so it was unclear how she could reach a conclusion that a significant impact is likely from the keeping of dogs and horses on already cleared land on Lots 1 and 2.

55. He reiterated that horse and dog ownership was widespread in Duffys Forest and, whilst agreeing that dogs and horses could escape enclosures, and that fences will need maintenance, the point was that dog and horse owners typically do enclose their animals. To do otherwise would be to break the law, and risk death or injury to their companion animals.

56. In terms of Ms Powell’s precedent concern, Dr Robertson argued that such proposals would be individual proposals that would need to be assessed on their merits. He argued that the proposal would exclude dogs and horses from 63% of the total land area of the subdivision, including all of Lot 3, which fronts the National Park, and from the three Section 88B Conservation Areas that protect flora and fauna habitat. In any event, in his view, if such approvals were given, they would not likely jeopardise wildlife in the adjacent subdivision area or the National Park.

57. Dr Robertson considered it also important to note that new information had emerged on the SBB since the Project Venture approval. The Commonwealth Department of the Environment and Energy released Conservation Advice on the Southern Brown Bandicoot on May 5, 2016. In that advice, which represents the latest advice on the impacts on the species, a risk assessment table is provided that categorises the key threats to the species. Predation by foxes is rated as having a severe consequence that can have an impact over large areas. Predation by feral and domestic cats is ranked as having a moderate/severe consequence. So too is too frequent and extensive burning. Climate change is ranked as having moderate risk to large areas of habitats. Other moderate and minor threats are also mentioned including weeds, timber harvesting habitat change by disease and accidental poisoning. Predation by domestic dogs is not even ranked as a low risk.

58. Hence, whilst Dr Robertson agreed that dogs should be controlled, he also agreed with the Commonwealth risk assessment that foxes, feral and domestic cats, altered fire regimes and climate change are the most significant risks associated with SBB in the National Park. Dogs are a minor and controllable risk, and controls for that risk are proposed.

59. Even if dogs on the property did kill native fauna, in Dr Roberston’s opinion the impact on threatened species would not be significant given the number of dogs on each property would be limited to two.

60. Dr Robertson did however, accept the Council’s argument that the effectiveness of the dog containment areas would depend on the type of fence, the breed and training of the dog, and the management of the property by future occupiers.

61. Ultimately, the Council criticised the lack of a Plan of Management to control the impact of horses on nutrients and flora, and the lack of any evidence on this issue, and the lack of agreement on the most appropriate fencing to restrain dogs. The Council queried what has changed since the Malnic decision last year where the Court considered it necessary to impose this condition? In the Council’s view, the evidence was not conclusive in terms of anything material which warranted removing the condition.

Findings

62. It was suggested by Mr Howard that I may not have been aware that Lot 258 was not currently subject to a prohibition on dogs and horses. This is not the case. I clearly noted at paras 7, 190 and 193 of the Malnic judgment that only part of the site was the subject of the former Court approval, and therefore the prohibition on dogs and horses. I nevertheless imposed Condition 65 to extend the prohibition across all of the proposed lots notwithstanding the applicants’ opposition to this condition.

63. Specifically, the applicants sought in the 2016 appeal for Condition 65 not to be imposed arguing that the conservation restrictions on the use of land (supported by the Environmental Site Management Plan) would not allow dogs, cats, stock etc. into the Conservation Areas but would leave the remainder of the proposed lots able to be set aside to have appropriate animals. If that position was not supported, then the applicants sought the condition to be amended to allow a dog, pony or horse as a pet (not up to four dogs and four horses) within areas of then proposed Lots 1 and 2 not affected by proposed restrictions on the use of land for conservation purposes.

64. Based on the limited information before me then, I nevertheless imposed a condition not permitting such animals on any of the approved lots, agreeing with the Council that the various threatened species and local wildlife that inhabit the site and its surrounds, meant it was inappropriate for dogs, cats, ponies or horses to be on any land in the subdivision.

65. In reconsidering the need to impose Condition 65, based on the evidence now before me, I have concluded that there remains insufficient evidence or basis to justify removing Condition 65.

66. The areas proposed to allow the dogs and horses take up the majority of both proposed lots with the areas for horses adjoining approved Conservation Areas. In the case of approved Lot 2, the Conservation Area is in close proximity to the National Park.

67. I have also not been persuaded that my original finding was incorrect, namely that allowing pets on any part of the site would introduce a management regime difficult to enforce and an unnecessary element of risk to the environmental features of the site and the Conservation Areas in particular.

68. The applicants did not seek only to retain their existing dog within the confines of or in close proximity to their existing house which may have been considered given the existing circumstances. However, as one objector pointed out, they can retain their dog and the horse they currently allow on the property by not proceeding with the approved subdivision.

69. However, should they create the approved subdivision, the applicants can only do so by maintaining the environmental controls considered necessary associated with the introduction of an additional dwelling, associated infrastructure and impacts. This includes creating new Conservation Areas which have the capacity to become habitat for threatened species occurring in the locality including the SSB and Rosenberg’s Goanna whether or not such species are currently utilising the site.

70. The applicants may claim that in their experience dogs and horses can easily be kept in confined areas with appropriate fencing, the following of daily feeding and supervision. However, this relies on the fencing proving to be appropriate, adequate daily feeding and constant supervision, not all of which could be guaranteed of future owners.

71. Dr Robertson argued that the risk can be managed, that potential impacts are not significant and the proposal can proceed without major detrimental environmental impact. However, I see little if any justification by way of conclusive evidence for adding unnecessary risk or for permitting any additional impact, and am not comforted by Dr Robertson’s conclusion that the proposal won’t have ‘major’ detrimental environmental impacts. Avoiding any unnecessary detrimental environmental impacts specifically caused or potentially caused by dogs and horses is the intent of Condition 65.

72. The fact that such a condition may improve the environmental outcomes from the current use of Lot 258 is a positive reason for its imposition and is one of the benefits of allowing the 2016 subdivision.

73. The areas proposed for horses directly adjoin the Conservation Areas to be set aside on both lots. There was no evidence provided on the impacts from the keeping of the horses, particularly the offsite impacts, despite this issue being raised by objectors and canvassed as a concern in the Project Venture decision.

74. In particular, there was no evidence to indicate that the droppings from the horses would not add nutrient load to stormwater feeding into the Coastal Upland Swamp. Like Commissioner Moore found in Project Venture, I am unable to be satisfied, on the basis of the material provided (given none was), that the stormwater management measures proposed for the site would provide an adequate protection from the transmission of nutrients in run off from the site from the droppings of horses if they were to be permitted to be kept on the lots.

62. I do not consider that an adequate or in any way realistic ameliorating measure is for future owners to collect and remove from the site droppings from four horses, particularly given the horses are permitted to graze over much of the two lots and those droppings can occur anywhere they graze at any time.

63. Although he had no evidence, Moore C also had concerns that there might not be sufficient grazing area for such animals in the Project Venture subdivision. Dr Robertson’s advice to me was that he was unsure if there was sufficient cleared area for grazing of the four horses proposed in the current application, particularly for the two horses on Lot 2. In viewing the area proposed, I have reservations that enough grazing area exists on Lot 2 without the need for additional clearing creating further potential impacts.

64. In the absence of expert evidence on this issue and in terms of likely additional nutrient loading from horse droppings irrespective of the quantum, the risk of adverse environmental impacts from up to four horses on the two lots as proposed can not be ruled out.

65. In making my findings, I accept that many residents of Duffys Forest likely keep animals such as dogs and horses. However, they do not live on relatively recently created lots where the Court has been persuaded that, notwithstanding the environmental constraints arising from the land or adjacent land, some additional development can occur. However, this is with the proviso that such development would be subject to stringent environmental requirements, such as the creation of Conservation Areas and the preclusion of domestic animals, environmental protection measures agreed to by the original developer who created the lot that is now 147 Booralie Road.

66. If such controls are subsequently eroded or removed, rather than extended where the opportunity arises, simply to maximise the enjoyment of the use of the land by occupants, then it questions the merits of accepting such limitations in return for additional development in the first place.

67. The applicants acquired 147 Booralie Road knowing the limitations on its development and use then sought to add their own property at 145 Booralie Road to it in order to obtain approval to an additional lot. That approval was given but on the basis of imposition of the restrictions across the site. There will be additional impacts from the creation of an additional lot however, I determined that those impacts were not so significant and granted approval given the environmental benefits put forward in the proposal, such as the creation of Conservation Areas on each of the proposed lots, including No 145 which currently does not have such an area. It was also subject to the preclusion of domestic animals on all of the proposed new lots which can only be of environmental benefit.

68. The Court has on at least the two occasions, in Project Venture and Malnic, granted approval to further subdivision of environmentally sensitive land in Duffys Forest on the understanding that applicants would rather have increased development potential in the form of additional lots than keeping their existing lots and their animals. Rather than taking away the owners’ rights to their animals, these Court approvals have assumed that owners would accept having to forgo any such arguable ‘rights’ in return for the financial benefits that allowing further controlled subdivision of their land would bring. If this is a wrong assumption, then the owners have the right not to undertake the subdivision and keep their pets notwithstanding the acknowledged environmentally sensitive location of their lots.

69. As for any argument that the Rural zoning of the land should allow rural pursuits or typical rural activities including the grazing of horses and the keeping of dogs, the subdivision of this land would not have been supported if such activities were proposed given the environmentally sensitive nature and location of this site. The further subdivision was only approved with the offer of the creation of Conservation Areas on each proposed lot, the detailed analysis to determine an acceptable location for buildings, effluent areas and asset protection areas, the restriction on further clearing, the thorough assessment of environmental impacts and the prohibition on domestic animals, all of which were required in order for me to grant approval.

70. It does not matter if Condition 65 does not achieve a significantly improved ecological outcome in the locality as Dr Robertson suggests it should have to in order to be imposed. I consider it is sufficient that I am satisfied that it must reduce the risk of adverse environmental impacts from the development, rather than adding to them.

71. Condition 65 is retained accordingly.

Orders

85. The orders of the Court are:

1. The appeal is dismissed.

2. Modification application to amend conditions of development consent 2016/0556 associated with the subdivision at 145-147 Booralie Road, Duffys Forest is refused.

3. The exhibits, except Exhibits A, B, C, D and 2, are returned.

_________________________

Jenny Smithson

Commissioner of the Court

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Decision last updated: 28 February 2018