Lipman Properties Pty Ltd v Warringah Council - [2010] NSWLEC 1310

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Lipman Properties Pty Ltd v Warringah Council [2010] NSWLEC 1310

PARTIES:
APPLICANT
Lipman Properties Pty Ltd
RESPONDENT
Warringah Council

FILE NUMBER(S): 10973; 10974 of 2009

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- for Seniors Living and subdivision; Threatened species - whether likely adverse impact and whether SIS required; Whether proposal consistent with desired future character of area; overdevelopment of site; draft LEP; precedent; public submissions.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Threatened Species Conservation Act 1995
Roads Act 1993 (NSW)
Rural Fires Act
Strata Schemes (Freehold Development) Act 1973
Environmental Planning and Assessment Regulation 1994
Warringah Local Environmental Plan 2000
Draft Warringah Local Environmental Plan 2009
Warringah Development Control Plan

CASES CITED: BGP Properties v Lake Macquarie City Council [2004] 138 LGERA 237
Retirement by Design v Warringah Council [2007] 153 LGERA 372
Mete v Warringabh Council [2004] 133 LGERA 420
Beacon Hill Retirement Pty Ltd v Warringah Council [2010] NSW LEC 1011
Newcastle and Hunter Valley Speleological Society v Upper Hunter Shire Council and Stoneco [2010] NSW LEC 48
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289
Motorplex (Australia) Pty Ltd v Port stephens Council [No.2] [2007] NSWLEC 770

DATES OF HEARING: 16 - 18 June 2010
2, 8 - 9 July 2010
Updated advice received 22 and 23 December 2010

DATE OF JUDGMENT:
30 December 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr C J Leggat (Senior Counsel)
with Mr N Eastman (Barrister)
SOLICITOR
G P Cummins & Co
RESPONDENT
Mr J Robson (Senior Counsel)
SOLICITOR
Wilshire Webb Staunton & Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

30 December 2010

Appeal No’s : 10973 of 2009 and 10974 of 2009

Lipman Properties Pty Ltd -v- Warringah Council

JUDGMENT

1 The applicant in these proceedings is seeking consent for a seniors living development on land at Beacon Hill in the local government area of Warringah. The site is about 2.6 hectares, known as No 8 Lady Penrhyn Drive and No 70 Willandra Road. The aerial photographs at figures 1 and 2 show the site in its broader and narrower contexts of adjoining residential subdivisions and the bushland of the Oxford Falls Valley Locality.

2 Appeal No. 10973 of 2009 is in respect of the proposed development for 32 self-contained dwellings in groups of 4 dwellings. Associated facilities include an amenities building containing a meeting room, gym, swimming pool and recreation facilities; car parking for residents and visitors; landscape and bushfire hazard management works. The application also proposes that the land be subdivided into two Torrens title lots with the smaller lot of 2064 sq m for the existing dwelling that is to remain on the site. The larger lot of some 22,000 sq m is proposed to accommodate the housing for older people and this is proposed as a under strata title scheme. Figure 3 shows the site development plan.

3 The associated appeal of 10974 2009 is for the development application to construct a vehicular driveway and pedestrian access path on an unmade road to provide access from Lady Penrhyn Drive.

THE SITE AND ENVIRONS

4 The subject site is an irregular triangular shape surrounded on two sides by streets and road reservations. The site for the proposed buildings is Lot 806 in DP 752038 and the unformed public road to provide access is Lot 12, DP 729342.

5 The adjoining residential subdivision and Council owned reserve at Red Hill is to the west and the residential areas of Beacon Hill are to the south and east. To the north the long boundary of the site adjoins undeveloped bushland. The National Parks are approximately 3 km north and southwest of the site.

6 Currently there is a brick and tile dwelling on the northwest portion of the land with access from Lady Penrhyn Drive. The existing dwelling is sited on the high portion of the land and the topography drops sharply away to a leveled area that has been cleared of vegetation and used for earth supplies. A large part of the land contains native vegetation and rock outcrops.

7 The site slopes from west to east and incorporates a number of naturally formed sandstone terraces at intervals across the site and native trees are interspersed amongst native heath. The general area has varied topography from gently sloping to relatively steep with escarpments and ridges and that part of the site proposed for the seniors living is significantly below the existing dwelling house and is more gently sloping and below the ridgeline.

8 The proposed development is described in more detail in the Statement of Facts as follows:

32 self contained dwellings for use as 'Housing for Older People Or People With A Disability', provided in a cluster of 8 detached buildings, each comprising four dwellings of 2 - 3 bedrooms (category 2 development) pursuant to the Warringah Local Environment Plan 2000 ("WLEP 2000");
A common amenities building comprising a multi purpose meeting room, gym, toilets, kitchen swimming pool and deck area;
Car parking comprising 56 resident spaces (a mix of I and 2 parking spaces per dwelling) and 10 visitor spaces;
Landscape and bushfire hazard management works;
Pedestrian access ramp from proposed units to Lady Penrhyn / Willandra Road intersection over Council's unformed road reserve, and
New vehicle access internal road connecting Willandra Road and lady Penrhyn Drive.
Retention of the existing dwelling and 4 associated car parking spaces;
Torrens title subdivision of the site into two allotments and a strata subdivision of the larger lot are also proposed.

9 The Warringah Development Assessment Panel deferred the application pending receipt of additional information including a Species Impact Statement. In September 2009 the Council forwarded a letter to the applicant advising of a number of concerns associated with the proposal and additional information sought included:

Species Impact Statement (Section 5A and Section 79B of the Environmental Planning & Assessment Act 1979)
An ecological site management plan be prepared and submitted.
An analysis of how the proposed development will affect local core habitats and specifically addressing the issues related to the loss of connectivity between these habitats should be incorporated into the environmental assessment.
Vehicular Access
Car Parking access ramps cross grades
Wheelchair Access To Community Building
Wheelchair Access On Access Pathway to Willandra Road
Pathway over Council land (Owners Consent)
Site Elevations
Clause 59 / Schedule 11 of Warringah LEP 2000 (Koala Habitat protection)
Site Capability Certificate for Seniors Development
House Density - Concurrence Required

10 The applicant submitted a Species Impact Statement (SIS) in December 2009 and other information, however, the application remains undetermined by the council and these proceedings are on the basis of a deemed refusal. The applicant appeals under the provisions of s 97 of the Environmental Planning and Assessment Act (EPA Act).

11 The development is for integrated development requiring referral to the NSW Rural Fire Service pursuant to s91 of the EPA Act. In February 2010, the RFS issued its General Terms of Approval, requiring the imposition of certain conditions.

STATUTORY PLANNING FRAMEWORK

12 The development application was lodged as a Seniors Living development under the provisions of Warringah LEP 2000 and does not rely on the State Environmental Planning Policy ‘Housing for seniors or People with a Disability’.

13 The site is located in the B2 Oxford Falls Valley Locality (B2 Locality) under the WLEP 2000. The relevant provisions of this LEP include Clause 12(3)(b)--Desired Future Character (DFC) and for the B2 Locality this is described as follows:

"The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows.

Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridge tops or in places that will disrupt the skyline when viewed from Narrabeen lagoon and the Wakehurst Parkway.

The natural landscape including landforms and vegetation will be protected and, where possible, enhanced Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.

A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape.

Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its Catchment and will ensure that ecological values of natural watercourses are maintained. "

14 The proposed development falls under the definition in the dictionary of the LEP (C1.6 of WLEP 2000) as 'housing for older people or people with disabilities' and this means:

' ... residential accommodation which is or is intended to be used permanently as housing for the accommodation of older people or people with disabilities, whether or not it is also used to accommodate people who live with older people or people with disabilities, or staff who are employed to assist in the administration of and provision of services to such housing. Housing for older people or people with disabilities may consist of a residential care facility, a hostel or a grouping of 2 or more self-contained dwellings, or a combination of these, but does not include a hospital or a group home.'

15 Under the B2 Locality Statement 'housing for older people or people with disabilities' and 'housing' are identified as a Category 2 development. 'Subdivision' is also identified as Category 2 development (Clause 14).

16 Clause 12(2)(b) requires the consent authority before granting consent must be satisfied that the development will comply with the development standards set out in the Locality Statement. Clause 12(3)(b) requires the consent authority to be satisfied the development is consistent with the desired future character described in the relevant Locality Statement but nothing in the description creates a prohibition on the carrying out of development.

17 Appendix B to the LEP contains the Locality Statement for the B2 Oxford Falls Locality. In this section of the LEP Housing density is under Built Form Controls and the maximum housing density is 1 dwelling per 20 ha of site area, except :

the site area (which does not include the area of any access corridor, whether such access corridor is to be created or is in existence at the time of application for development consent) is divided by the number of dwellings proposed on the site, including any existing dwellings which are to be retained,
the site is the allotment which existed on the day this plan came into effect, and
granny flats are not considered to be a dwelling and are limited to one per allotment.

18 In the B2 locality there are a number of other provisions in the LEP as follows:

Building Height

Front building setback

Rear and side building setback

of land that can be included as landscaped open space is 1 metre. "

19 The Schedule 7 in the LEP contains matters for consideration in the subdivision of land and this is called up by cl 21(3) where the proposed subdivision is to be consistent with same. This schedule relevantly includes:

Environmentally sensitive/constrained land

Bushfire

20 There is no issue raised by the respondent and in my assessment the proposed subdivision is consistent with all the matters set out in this schedule.

21 Clause 29 of the LEP relevantly includes matters that relates to:

building height:

density and scale:

landscaped area:

²

parking:

visitor parking:

landscaped areas:

22 There is no issue and the proposed development complies with the above requirements.

23 Clause 40 of the LEP contains provisions for access to support services as follows:

Development for the purpose of housing for older people or people with disabilities must provide residents with adequate access to:

Wheelchair access:

site gradient:

(i) if the whole of the site has a gradient of less than 1:10, 100% of the hostel or residential care facility beds and 100% of the dwellings must have wheelchair access by a continuous path of travel (within the meaning of AS 1428) to an adjoining public road or an internal road or a driveway that is accessible to all residents, or

the specified minimum percentage)

road access:

common areas:

adaptability: …

24 Other principles and standards are contained in Schedule 16 to the LEP. These are not in issue and the proposal satisfies these detail design requirements.

25 Clause 56 refers to retaining unique environmental features on sites:

Development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land.

26 Clause 57 - Development on sloping land

On sloping land, the height and bulk of development, particularly on the downhill side, is to be minimised and the need for cut and fill reduced by designs, which minimise the building footprint and allow the building mass to step down the slope.
In particular:
the amount of fill is not to exceed more than 1 metre in depth; and
fill is not to spread beyond the footprint of the building; and
excavation of the landform is to be minimised.

27 Clause 58 - Protection of existing flora provides that:

Development is to be sited and designed to minimize the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species.

Draft Warringah Local Environmental Plan 2009 (Draft WLEP 2009)

28 The site is proposed by the council to be zoned E3 Environmental Management under the Draft Warringah Local Environment Plan 2009, (Draft LEP) which has been the subject of public exhibition. Seniors Living development is prohibited development in the E3 zone. This zone also sets a minimum subdivision standard of 1 dwelling per 20 hectares

29 The council referred the plan in late June 2010 to the Department of Planning for its making. The draft LEP is modelled on the Department of Planning’s template. The savings provision within the draft plan states under cl 1.8A is:

“if the development application has been made before the commencement of this plan in relation to land to which this plan applies and the application has not been finally determined before that commencement, the application must be determined as if this plan had not commenced.”

30 The E3 Environmental Management Zone contains the following objectives:

to protect manage and restore areas with special ecological, scientific, cultural or aesthetic values.

to provide for a limited range of development that does not have an adverse effect on those values.

to ensure that development, by way of its character, design, location and materials of construction, is integrated into the site and natural surroundings, complements and enhances the natural environment and has minimal visual impact.

to protect and enhance the natural landscape by preserving remnant bushland and rock outcrops and by encouraging the spread of indigenous tree canopy.

to protect and enhance visual quality by promoting dense bushland buffers adjacent to major traffic thoroughfares.

31 Development that is permitted with consent includes dwelling houses, community facilities, home businesses, horticulture, recreation areas and aquaculture. Prohibited development includes industries, multi dwelling housing, residential flat buildings, retail premises; and seniors housing.

32 The definition of seniors housing under the draft LEP means residential accommodation that consists of a residential care facility or a hostel or a group of self-contained dwellings or a combination of these that is intended to be used permanently for seniors or people who have a disability ... but does not include a hospital.

33 The full Statement of Contentions is at attachment 1. The respondent in submissions summarized these as that contained in contention 7.

7. Overdevelopment of the Site

Evidence and submissions

34 The Court met on site the first morning of the hearing with the parties and the objectors to the proposal. An extensive site inspection was carried out of the subject land, and a wider inspection of the area.

35 The Court heard from a number of resident objectors to the proposal and the Court also has copies of submissions received in respect of the development being advertised. The objectors concerns include that the proposed development will change the locality, and it will have a dramatic impact on views. Another concern relates to the effect of precedent for other developments. Concern was also expressed that the environment would not be protected by the proposed development and the proposal does not comply with current thinking and understanding of the environment. A further concern articulated by the objectors is that the site provides a wildlife corridor and contains swamps with the natural high water table, and that the proposed development would lead to run off and flooding, weed infestation and edge effects.

36 Concern was also expressed about road kill and the impact of fires and the fact that bandicoots and other wildlife may be present on the site, including the square tailcoat kite, feather tailed glider and sugar gliders. The Court also heard of the need to evacuate people in the time of bushfires that move very quickly through the area. Concern was also expressed about the gradients being too difficult for older people to walk to the bus stop.

37 Other objectors also made comments concerning the overall context of Oxford Falls and the lagoon catchment that has great biodiversity. In particular, it was pointed out that the development would be prohibited under the new Draft Local Environmental Plan. It was also pointed out that the Narrabeen Lagoon catchment has 27 in native vegetation communities with 11 threatened and 8 not represented in national parks. The objectors considered the site to be a jewel of rare diversity. Concern was also expressed about the translocation of the Pimelea Curviflora is on the subject site, which will lead to a decline in biodiversity, because the prospects of its surviving translocation are difficult.

38 It was repeated that the proposal was not consistent with the desired future character of the area. The proposal would have a high bushfire risk and remove core habitat areas. The proposal was seen by the resident objectors as an over development of the land and not consistent with the aims and objectives and the proposal would have adverse environmental impacts. The possibility of the subject site being within range of four known species of is cicadas was also raises a concern.

39 The comment was made that with urban consolidation this requires in exchange and retention of bushland open to the community.

40 Concern was also expressed about the destruction of rock outcrops on the site, as well as habitat and bushland because of the area required for the asset protection zone. Comment was also made about the Aboriginal site that was on the subject band.

41 For the respondent council expert evidence was provided by Ms Teresa James, botanist and ecologist; Mr Rod Rose, bushfire consultant and fire ecologist; Mr Anthony Powe, landscape architect; and Mr Ryan Cole town planner. On behalf of the applicant's evidence was provided by Dr Anne Clements, restoration ecologist; Mr Ian Cady, consultant town planner; Mr James Koopman; Mr Rohan Dickson, architect urban designs; and Mr John Travers, consultant ecologist and bushfire consultant.

Assessment and findings

42 In closing submissions the respondent summarised the issues as: inconsistency with the desired future character of the locality: housing density: unacceptable impact on the Pimelea; unacceptable environmental impact because the site is environmentally significant and modification to 90% of the site is proposed; substantial non-compliance with the subdivision standard; and strategic planning considerations including the draft Warringah Local Environmental Plan which would prohibit development for seniors housing.

43 The above appear under contention 7 in attachment 1. This provides a copy of the Council’s Statement of Contentions to which I have assessed. As in many cases before this Court a number of contentions are either resolved by further information or conferencing of experts. For example the issues of a watercourse and the heath monitor are no longer pressed.

44 The respondent submits that with the various issues considered individually or together, it is apparent the development would result in gross over development.

Threatened Species - Pimelea Curviflora (PC)

45 I first deal with this contention because it is a threshold matter in my consideration of the proposed development.

46 The Environmental Planning and Assessment Act 1979 at s78(8) provides that a development application must be accompanied by:

Threatened Species Conservation Act

47 Section 5A of the Act states:

(b) any assessment guidelines.

(b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,

(c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action; and

(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,

(f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,

(g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.

48 The above matters are often referred to as the 7 part test and the ecologists Ms James and Dr Clements both provided a 7 part test that became exhibits 15 and L in the proceedings.

49 I acknowledge that there was confusion during the proceedings because just prior to the hearing commencing it was revealed that there had been a misidentification of the Pimelea on the adjoining council reserve that changed the assessment process because the local population is now confined to the 3 plants found on this site

50 There was also confusion as to whether the 3 plants could remain in-situ because Dr Clements maintains that being in dumped material then it could possibly be contaminated, although as submitted by the respondent there is no scientific evidence or reports to support this. And the experts agreed that translocation should only be carried out as a last resort if the area surrounding the plants is found to have a level of contamination requiring removal. Ms James in her evidence said that the lateritic soils where the Pimelea is located could be the occurrence of a clay lense in the Lambert soil landscape which she says are not uncommon. Dr Clements, on the other hand, says that there are signs that the site has been disturbed in the area where the Pimelia is located and referred to the dumping of material, including bins and extensive tracks. Ms James says that the typical habitat is sandy soil derived from sandstone or clay lateritic soils over sandstone on ridges or upper slopes in open woodland or open forest. This description does not apply to the location of the Pimelea on the subject land which is mid slope in woodland heath complex.

51 However, I accept Ms James’ evidence that it is no consequence as to whether these plants are in lateritic fill that was dumped on the subject site, the fact is, the 3 plants must be considered as the local population. And the presence of the 3 Pimelea must be considered as a local population and must be assessed subject to the provisions of the relevant acts.

52 Dr Clements says that the lateritic outcrops generally occur on ridge tops and plateau surfaces and the site is on a mid slope, and she considers the Pimelea is likely to have been introduced in soil dumpings and that the chances of survival are not high with the do nothing scenario as a result of the existing management of the site and the extent of disturbance and degradation of the site is likely to increase over time. In her opinion, the impact would be mitigated because of the design of the road in the bioswales and water treatment regime proposed with the development.

53 Ms James agreed there is fill on the top part of the site but down slope vegetation is in good shape with few exotics on site. Furthermore, she said that clay lenses occur in sandstone and this is not an issue or problem, and in her opinion the proposed development will result in the removal of habitat from the site and this will also lead to a lack of connectivity and isolation and edge effects.

54 A description of the Pimelea Curviflora is provided on the New South Wales Threatened Species website and is referenced in the BMP as follows. The photograph in Figure 7 shows the species.

Description

A much-branched subshrub or shrub 20 to 120cm high with hairy stems. Flowers are red to yellow, hairy and occur in terminal heads of 4 - 12 flowers. Leaves are 5 - 10 mm long, 2 - 4 mm wide, with a sparsely hairy lower surface. The curved fruit is 2 - 4 mm long.

Location and habitat

Distribution
Confined to the coastal area of Sydney between northern Sydney in the south and Maroota in the north-west. Former range extended south to the Parramatta River and Port Jackson region including Five Dock, Bellevue Hill and Manly.
Habitat and ecology

Occurs on shaley/lateritic soils over sandstone and shale/sandstone transition soils on ridgetops and upper slopes amongst woodlands.

Flowers October to May.

Has an inconspicuous cryptic habit as it is fine and scraggly and often grows amongst dense grasses and sedges. It may not always be visible at a site as it appears to survive for some time without any foliage after fire or grazing, relying on energy reserves in its tuberous roots.

Likely to be fire tolerant species capable of resprouting following fire due to the presence of a tap root. Seedlings have been observed following fire.

Regional information
This species is found in the following catchment management authority regions.

Hawkesbury/Nepean

Sydney Metro

Threats

Habitat loss due to clearing for urban development.

Habitat degradation due to for example, weed invasion, recreational activities, road and trail maintenance, and bush rock removal.

Recovery strategies
Priority actions are the specific, practical things that must be done to recover a threatened species, population or ecological community. The Department of Environment and Conservation has identified 7 priority actions to help recover the Pimelea curviflora var. curviflora in New South Wales.
What needs to be done to recover this species?

Introduce measures to prevent habitat degradation related to unrestricted access and/or trail maintenance.

Manage weed infestation.

Protect areas of known and potential habitat from clearing and further fragmentation.

References

Benson, D. and McDougall, L. (2001) Ecology of Sydney plant species. Part 8.

Harden, G.J. (ed.) (2000) Flora of New South Wales Vol. 1. UNSW Press, Kensington, NSW.

NSW Scientific Committee (1998) Pimelea curviflora (a small shrub) - Vulnerable species determination - final. DEC (NSW), Sydney.

55 His Honour, Preston CJ sets out the requirements of a 7 part test and SIS in the matter of Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 as follows:

81…. The requirements for a SIS flows from s78A(8)(b) of the EPA Act which requires that a development application must be accompanied by a SIS if the application is in respect of development on land that “is likely to significantly affect threatened species, populations or ecological communities, or their habitats”. The requirement is a jurisdictional fact; satisfaction of the requirement is an essential pre-requisite to granting consent to an application. If a SIS is required, but it has not been prepared, then consent cannot be granted…

82. A number of point may be made about this requirement. First s 78A(8)(b) focuses on the development proposed in the development application; the inquiry is whether the “development” in respect of which application is made is likely to significantly affect threatened species, populations or ecological communities or their habitats An application can, of course, be amended after it is initially lodged. . The development proposed , therefore , may be amended. The relevant time for the inquiry is immediately prior to the determination of the application; it is the development as it then stands that is to be evaluated for its likely impact on threatened species, populations or ecological communities or their habitats… In this case, therefore, the inquiry must focus on the development as it finally stood at the conclusion of the hearing of the appeal.

83. Secondly, the description of the development the subject of the development application is not restricted to the nature, extent and other features of the development but can also include ameliorative measures to prevent, mitigate, remedy or offset impact of the development. However, in order to be able to be considered in answering the inquiry of likely impact, the ameliorative measure must be proposed as part of the development application. Ameliorative measures not proposed as part of the development application, but which are imposed afterwards, as conditions of consent or restrictions in construction certificates, are not able to be considered in answering the inquiry as to likely impact. This is because the inquiry required by s78A(8)(b) focuses on the development and its likely impact before the determination of the application and not afterwards…

84. Thirdly, the word “likely” means “a real chance or possibility” and “significantly” means “important”, “notable”, “weighty” or “more than ordinary”…

85. Fourthly, in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, the consent authority and the Court on appeal must take the factors in s5A of the EPA Act into account and in particular the factors in the now seven part test in s5A(2). However, the consent authority is not limited to consideration of these factors; there may be facts and circumstances relevant to the inquiry which are not specifically contained in any of the factors in the seven part test.

86. Fifthly, a positive answer to any one or more of the seven factors does not mandate an affirmative answer to the question of whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats but equally does not preclude a negative answer to the question.

94. The concept of “local “ occurrence is not a defined term; rather it is an English word that will take its meaning from the circumstances of the EEC concerned and its distribution, extent, fragmentation and other spatial characteristics.

100… In its current form, s5A(2)(c) requires evaluation of the likelihood of removal or modification of an area of an EEC placing a “local occurrence” of the EEC at risk of extinction.

101. Hence, the evaluation conclusion in cases considering the former s5A(c) using the regional distribution of the habitat of an EEC may not assist in making the evaluation judgment required under the current s5A(2)(c) which uses the yardstick of local occurrence of the EEC.

102. Such a comparison with the regional distribution of an EEC is no longer appropriate for the purposes of s5A(2)(c). The comparison would need to be with the local occurrence of the EEC.

104. A mere quantitative comparison of the area of the EEC to be removed or modified with the area of the local occurrence of the EEC, however, may not be sufficient by itself to evaluate the likelihood of removal of modification of the area of the Eec placing the local occurrence on the EEC at risk of extinction. Other factors may need to be considered and a qualitative analysis undertaken.

104. (d) the viability (or conversely the vulnerability) of the local occurrence of the EEC and the proposal’s likely adverse effect on or modification of this viability (or vulnerability), having regard to its location, size; shape, configuration; fragmentation; isolation or connectivity; condition; threatening processes; and other factors; and

104. (e) the cumulative effect of the proposal with other existing and likely future actions; and

104. (f) the existence and likely effectiveness of ameliorative measures proposed including compensatory habitat or offsets of the EEC concerned in or adjoining the area of the local occurrence of the EEC.

113. Application of the seven part test has resulted in negative answers to the three applicable factors. However, as noted previously, whilst consideration of the seven part test is required in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, the seven part test is not the only input into determining the question. Other relevant factors can be taken into consideration.

115. Another factor that might be relevant is ameliorative measures which reduce the significance of the adverse impacts on the EEC. In BT Goldsmith Planning Services Pty Ltd v Blacktown City Council proposals for amelioration for the loss of CPW were advanced, but in the circumstances of the pas Pain J did not consider that a proposal to reafforest a nearby area was ameliorative.

116. The present case differs from BT Goldsmith in a number of respects. First, the extraction area will be rehabilitated so that at the end of the extraction and rehabilitation phases both the habitat and community will be present in some form. Secondly, the conditions proposed by Stoneco and the Council contain provisions for the implementation of management plans designed to ensure the enhancement and maintenance in perpetuity of EEC in the Project Site. These plans allow for ongoing review and adaptive management. These conditions provide sufficient assurance that the adverse impacts of the proposal will be ameliorated such that the overall assessment under s5A is of no significant impact so that no SIS is required.

117. In contrast to BT Goldsmith , in Nambucca Valley Conservation Association v Nambucca Shire Council , Biscoe J accepted the proposed ameliorative measures would be practical, enforceable and effective, so that the proposed development with the ameliorative measures was not likely to significantly affect the EEC concerned.

118. In conclusion, therefore, I find that the proposal is not likely to significantly affect the White Box EEC and a SIS in not required.

56 The Pimelea Curviflora is listed as a vulnerable species under both the New South Wales Threatened Species Conservation Act 1995 and the Commonwealth Environment Protection and Biodiversity Conservation Act 1999

57 The 3 plants located on the subject site constitute a small local population occurring within a defined study area. A local population was described by Ms James as plants that could reasonably be expected to cross pollinate with those in the study area.

58 Ms James describes the population to be a viable population that is, it has the capacity to successfully complete each stage of the life cycle under present conditions, and the plants are sufficiently mature to produce flowers and fruit. She states that the plants occur within normal habitat of the species as described below:

“Typical habitat: sandy soil derived from sandstone, or clayey, or lateritic soils over sandstone on ridges or upper slopes in open woodland or open forest; occurring in coastal areas of northern Sydney and in the north west of Sydney between Glen Haven and South Maroota (based on DECC and DEWHA profiles).”

59 Dr Clements assumes for the purposes of the 7 part test that:

cuttings of the plants are to be used for propagation by a specialist nursery to increase long-term survival of genetic material on this site; and
the plants are to be protected in-situ unless contaminated material is found near the plants with additional planting of tube stock grown from cuttings in the landscaped area surrounded by building B4, B3, C2, A2 and the community centre, as well as in other landscaped areas and the managed conservation areas.

60 Ms James assumes for her assessment that all plants will be removed under the proposal, resulting in 100% impact and as such she considers that a viable local population of the species will become extinct. This is her assessment in terms of the 1st of the 7 part test.

61 Dr Clements is of the opinion that the action proposed is not likely to have an adverse effect on the life cycle of the species, such that a viable local population is likely to be placed at risk of extinction. Her reasons are that the cuttings from the plants are to be used for propagation by a specialist nursery to increase long-term survival of the genetic material on the site, with tube stock planted in the managed conservation area and the plants are to be protected in-situ unless contaminated material is found near the plants with tube stock planted in the managed conservation area.

62 Dr Clements is of the opinion that the do nothing option is considered unlikely to protect and enhance the natural environment and ‘do nothing’ option would create risk of extinction in the short term or in the long term, as a result of direct or indirect impacts on the viability of that population. She further comments that the proposal is considered unlikely to have an adverse effect on the life cycle of the species, such that the viable local population is placed at risk of extinction. This is provided that the assumptions that only on-site sandstone, sandstone derived soils and local native species are used in the project as well as

Cuttings of the pants used for propagation to increase long-term survival of genetic material on the site.

The existing plants to be protected in-situ unless contaminated material is found near the plants with additional planting of tube stock grown from cuttings in a landscaped area.

63 The 2nd and 3rd tests the experts agreed are not applicable, as the Pimelea is listed as a vulnerable species and not an endangered population.

64 For the 4th test, Ms James states that on the site all known habitat and approximately 1 ha of potential habitat will be removed or modified within the proposed APZ. She further comments that limited potential habitat within the adjoining council land will be affected by indirect impacts resulting from loss of connectivity and isolation, edge affects and potential changes to hydrological flow characteristics.

“in relation to the habitat of a threatened species, population or ecological community:

1. the extent to which habitat is likely to be removed or modified as a result of the action proposed”

65 Dr Clements states that the sandstone soils removed for construction works are to be reused in the landscaping and in the managed conservation area, hence preserving the potential soil seed bank on the site. She further comments that the extent of the habitat to be removed will depend on whether the Pimelea are retained in-situ

2. Whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action.

66 Miss James states that potential habitat within adjoining council land will become more isolated. Dr Clements is of the opinion that despite the removal of native sandstone soils and vegetation for the construction of the buildings and roads, connectivity is likely to continue to the north and south.

3. The importance of the habitat to be removed modified fragmented were isolated to the long-term survival of the species population or ecological community in the locality.

67 Ms James considers that all habitat is considered important to the long-term survival of the species in the locality. She advises there are only 4 records for the species in the locality ranging from 400 m to 1.4 km from the subject site and all except Redhill contain less than 10 plants. The Redhill population is exceptionally large with approximately 700 plants recorded. This large population is on council land, however, she states it is close to a residential area and is likely to be subject to disturbance and altered fire regimes.

68 Dr Clements on the other hand considers that the habitat proposed to be removed is well conserved in the locality as the council mapped 2 vegetation communities on site. Sandstone Heath is described by Smith and Smith as a common community in Warringah well represented in both Ku-ring-gai Chase and Garigal National Parks and Blood Wood Scribbly Gum Woodland is described as the most common community in Warringah well represented in both Ku-ring-gai Chase and Garigal National Parks.

69 The 5th test is whether the action proposed is likely to have an adverse effect on critical habitat. And on this test, Ms James states that no critical habitat has been declared for the species and Dr Clements says that there is no recovery plan or threat abatement plan prepared for the Pimelea.

70 The 7th test is the action proposed development constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.

71 Miss James states that clearing and fragmentation of native vegetation resulting in the loss of biodiversity is a key threatening process on schedule 3 of the TSC Act. The proposal in her opinion will clear and modify native vegetation resulting in loss and degradation of habitat

72 Dr Clements, states that while the proposal will require the clearance of all native vegetation in the area of the building and associated roads, clearing will not be required for the boardwalks.

73 In conclusion, Ms James says the proposed development will result in the removal of a local population of Pimelea Curviflora. Although the known population is small, this is typical for the species. The size of the population could be larger in view of the cryptic nature of the species and its ability to survive periods below ground as root stock and seed. She says there is approximately 1 ha of potential habitat at the site and this species is inadequately conserved within Warringah and across its known range. There will be a significant impact on the local population in her opinion.

74 Dr Clements states that the existing plants are to be retained in-situ, if possible, with supplementary plantings grown from tube stock, and that the proposal is not considered to represent a likely significant impact.

75 For the potential ameliorative measures Ms James comments that propagation and translocation of the 3 plants and relocation within the APZ or off-site has not been undertaken before therefore the risk is high, and translocation is a last resort and not generally supported. The other ameliorative measure is to retain the plants in-situ, however, she comments this will require associated habitat to be retained and the minimal area required to ensure long-term viability is unknown. In her opinion the impact of altered environment and the loss of connectivity on reproductive success is likely to be adverse. She concludes there is a high level of uncertainty associated with both these measures and neither can be relied upon to ameliorate impacts.

76 Dr Clements says that mitigating impacts of the proposal include establishing the on-site local native plants in the bioswales is readily achieved during construction phase. She also comments that retaining the plants in-situ will result in them continuing to be isolated and as mitigation measure there is potential to establish in areas not affected by buildings or roads, and by planting tube stock propagated from cutting, collected from the existing pants in the managed conservation area.

77 Dr Clements also recommends that prior to any works on the site the plants be tagged with cuttings for propagation to be collected by a specialist nursery and tube stock on site grown from cuttings to be planted on the site. She also recommends existing plants and planted tube stock are to be carefully monitored. Dr Clements recommends for the construction phase that the plants be fenced and protected and if they cannot remain in-situ they should be translocated intact in soil plant plugs into areas outside the proposed development area or to a specialist nursery for return post construction. Any potential required translocations are to be in accordance with the training network for plant conservation (ANPC) and translocation guidelines (ANPC 1997).

78 I am persuaded by Dr Clements 7 part test that the proposed activity is not likely to have a significant effect on threatened species populations and communities. Ms James incorrectly assumed that the 3 plants would be removed by the current proposal, comprising 100% impact. As agreed by the experts the preferred course of action is for the plants to remain in-situ, and in the event that they must be translocated I am still satisfied there is not likely to be a significant impact. This is because irrespective of whether the plants remain in-situ or are translocated, cuttings of the plants are to be used for propagation by specialist nursery to increase long-term survival of the genetic material on the site, tube stock grown from cuttings are to be planted on the site and the existing plants and planted tube stock are to be carefully monitored.

79 In my consideration of 7 part tests provided by the parties I have concluded that the proposed development is not likely to have a significant effect on threatened species populations or ecological communities or their habitats. As such, a species impact statement is not required to further address this matter and I do not need to rely on the addendum to the species impact statement that became exhibit S in the proceedings.

80 In my assessment of this issue, I am guided by the judgment of his Honour Preston CJ in Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87. His Honour sets out the planning controls and development as regulated by the Warringah Local Environmental Plan, wherein he states at para 53:

“Unlike other local environmental plans in New South Wales, WLEP does not separate land uses in a hierarchy based on land use type, such as dividing residential, business and industrial uses from each other in prescriptive zones. Instead, WLEP employs a multi layer approach.

One layer is based on the concept of a locality. A locality is a discrete geographical area of land or water. Each locality is delineated on the plan map mostly using street or property lines to show the boundaries of the locality.

The criteria for delineating a discrete tract of land as the locality is, firstly geographical and secondly, the character of the tract of land, both existing but more importantly, the desired future character of the tract of land. ...

81 His Honour refers to the 3 categories of development as 1, 2 and 3, and he refers to the note in cl 12 that explains category 2 development is development that may be consistent with the desired future character of the locality, and he states that if development is fundamentally inconsistent with the desired future character statement of the locality it will be prohibited in that locality.

“it is clear from the description I have given above that the means WLEP uses to control development that WLEP does not adopt a conventional zoning approach”.

82 The planning experts Mr Cady and Mr Cole agreed on the elements to be considered in assessing the desired future character. In their joint statement they agree that the present character of the Oxford Falls Valley B2 locality consists of: predominantly natural landforms and remnant bushland; dwellings with associated and ancillary structures; and special use developments such as churches, schools, institutions and retirement villages.

83 They further agree that the contentions on planning issues can be consolidated into 3 main areas of: desired future character and general principles of development control (contentions 1 and 4); density and subdivision (contention 2 and 5); and strategic planning (contention 6).

84 For the desired future character and general principles of development control they agree that the development must be assessed on whether it is consistent with the DFC statement in the B2 locality. Specifically:

Whether the present character of the Oxford Falls Valley locality will remain unchanged;

Whether the development will be a low intensity low impact use;

Whether the natural landscape including landforms and vegetation will be protected and were possibly enhanced;

Whether buildings are located or grouped in areas that will minimise disturbance of vegetation and landforms, whether as a result of the buildings themselves of the associated works including access roads and services;

Whether the development is consistent with general principles of development control in cls 56, 57 and 58.

85 The planners adopt the definition of low intensity and low impact as contained in Vigor Master Pty Ltd v Warringah Shire Council [2008] NSWLEC 1128 wherein:

“Intensity is commonly used to identify the nature of the proposal in terms of its size and scale and the extent of the activities associated with the proposal. Therefore, low intensity would constitute a development which has a low level activities associated with it

invent new 9 Impact is commonly used in planning assessment to identify the likely future consequences of proposed development in terms of its surroundings and can relate to visual, noise, traffic, vegetation, streetscape, privacy, solar access etc, therefore, low impact would constitute a magnitude of impacts such as that was minimal, minor or negligible level and unlikely to significantly change … the locality.”

86 In assessing the proposal against the desired future character of the locality I must have regard to the whole of the locality (that is 1544 ha) and not a narrow focus on the subject site.

87 Mr Cole states that the present character includes predominantly natural landforms interspersed with dwellings and special use developments. He states that the character should not be altered from the time the instrument was gazetted. Mr Cady is of the opinion that character means the aggregate or qualities which distinguish the locality and that the question of whether the present character of the B2 locality is changed by the development can be identified by examining its character pre and post development in terms of landform, vegetation, contours, built form and character of adjacent localities.

88 Mr Cole says that the DFC provides that the present character will remain unchanged except in specific circumstances and that future development will be limited to new detached style housing of low intensity and low impact on the natural landscape including landforms and vegetation will be protected and where possible enhanced and buildings will be located and grouped in areas that will minimise disturbance to the site. I do not accept Mr Cole’s opinion that the DFC was frozen at the time of gazettal of the LEP 2000.

89 Mr Cole says that the character will be altered to an urban form as the proposal would result in 100% variation. He states that site excavation works, cut and fill as shown in the applicant's plans would result in 11,600 cubic metres of cut and 1300 cubic metres of soil fill in addition to the rocks and managed conservation area, and that irrespective of the areas shown below 1 m in cut and fill this is still a modification of the site's natural landform and will require vegetation removal. He is of the opinion that the present character will be changed and the proposal does not group buildings in areas to minimise disturbance and that it will not be low intensity or low impact given the scale of the development by virtue of the number of buildings proposed the extent of driveways and the level of vegetation to be removed.

90 Mr Cady states that the site does not include the ridge top or watercourse elements emphasised in the DFC and that the site comprises 3 main terrace areas sloping from west to east that these levels are defined by an upper escarpment running north to south along the eastern curtilage of existing dwelling in the central band of prominent rock outcrops through the middle of the site north to south. He refers to the rock outcrops as having collective significance by way of their contribution of similar rock outcrop throughout the locality and that the development will not significantly change the present landform character of the B2 locality, because no ecologically important landform features on the site warrant in-situ conservation and that while some rock outcrops will be altered the majority of prominent outcrops are retained and the site will remain characterised by these in a manner consistent with other mid-slope locations throughout the B2 locality. He states that to minimise disturbance to the landform, the development is broken down into 9 separate buildings with each building having a small footprint that sits lightly on the landscape reflecting the level of the land upon which it is sited and with the buildings grouped within the benched or sloped parts of the site this preserves most significant rock outcrops and the escarpment.

91 Mr Cady states the above approach reduces the amount of required cut and fill and alteration to the existing contours. He comments that while the total excavation is 11,000 cubic metres some 6000 cubic metres is below building footprints with a total fill of 1000 cubic metres. This will allow the provision of basement parking rather than significant surface parking required for many developments. Figure 4 shows the proposed cut and fill.

92 Mr Cady states that the development will not have a significant impact upon the present landform character of the B2 locality as the site does not contain important environmental features that characterise the locality. The rock outcrops and overall landform that defines the landform character are not significantly altered. He notes that the plans show the individual buildings have small footprints and reflect the level of the ground on which they sit, buildings have been grouped to avoid the prominent escarpment and the band of rock outcrops that characterise the landform at the site.

93 Mr Cole considers the development will change the character of the B2 locality and result in a development not envisaged at the time the LEP was gazetted. He further considers that it is incremental urbanisation of the nonurban locality that the proposal would result in an overdevelopment of environmentally constrained land and the proposal would be inconsistent with the draft LEP provisions of the zoning of the land to E3 Environmental Management.

94 On the element of vegetation and the character of the B2 locality Mr Cady comments that the majority of the locality comprises remnant natural bushland that varies significantly from pristine to highly modified and vegetation of the B2 locality is typical of the Lambert soil landscape described as open and closed heathland, scrub and occasional low open woodland. He states that the proposed development would be consistent with the present vegetation character of the B2 locality and that the vegetation characteristics will not be significantly changed. He says that whilst the developed area of the site will increase from approximately 20% to approximately 52% the existing 20% is currently totally denuded of vegetation, and while 52% of the site is proposed to be landscaped in a bushland style using vegetation propagated from plant stock sourced from the site. Furthermore, he says that the road reserve will provide a substantial bushland buffer to Willandra Road and that the new driveway crossing is a single domestic driveway along a frontage of this length which is consistent with the existing character of the locality.

95 Mr Cole is of the opinion that compliance with the landscape open space provision is only one element of the LEP and does not guarantee consistency with the DFC. He refers to the number of trees to be removed for both the buildings and the APZ.

96 Figure 5 shows the number of trees to be removed as 147 and there are replacement plantings of 100 with 94 trees retained For the Council Mr Powe agreed that the concept landscaped plan is satisfactory, however, he has a fundamental concern with the fit of the proposed development. On the question of enhancement to vegetation on the site I am satisfied this is achieved by the proposal with the revegetation of degraded areas and the landscape regime proposed. In my assessment the landscape outcome will provide an appropriate fit with the adjoining area, in particular the B2 locality.

97 Mr Cady says that the proposed landscaped area of over 16,000 sq m and over 60% of the site complies with the 1120 sq m of landscaped area (35 sq m per dwelling) standard contained in cl 29(2)(c) and the 30% landscaped open space requirement contained in the B2 locality statement. Some 23% of the site will comprise buildings and roads and he acknowledges that apart from the retained rock outcrops and significant trees to be protected during excavation and construction that the spaces between the proposed building and roads will inevitably be disturbed during the construction process. However, he states that prior to commencement of building works topsoil and plant material from these parts of the site will be transferred for storage and propagation of site. This material will then be used on site in areas of crushed sandstone and revegetated from seed stock sourced from the site. Mr Cady is of the opinion that the proposed changes to existing vegetation will have negligible impact upon the bushland appearance of the site from surrounding properties and will therefore have negligible impact upon the bushland character of the B2 locality.

98 In my assessment of the DFC I am persuaded by Mr Cady’s evidence that the proposal is consistent with the B2 locality and it will sit comfortably within this locality and positively contribute to and be consistent with the DFC. The proposal in my assessment conforms to a low intensity and low impact form of development and provides a suitable and consistent outcome for the B2 loacilty.

Environmental Impact

99 The respondent contends that the site is environmentally significant and the proposed development will require modification to 90% of the site.

100 A species impact statement was prepared as a response to the advice received from council in September 2009 that an SIS was required. The development application initially was accompanied by an ecological assessment report, dated June 2009. In requiring the SIS council did not provide any scientific reason or any surveys refuting the findings of the ecological assessment report. The SIS was submitted in December 2009

101 The SIS concluded that the proposed development will not result in a significant impact on any threatened species, populations or endangered ecological communities or their habitats. I note that the SIS was prepared prior to the knowledge that the Pimelea plants, shown on the adjacent council land had been misidentified and that the only local population was the 3 plants on the subject site. An addendum to the SIS was prepared to overcome any jurisdictional question in the event I was not satisfied that there would not be a likely significant impact. The SIS prepared in December 2009 however, does provide surveys and an assessment of the site for flora and fauna species. While the conclusion in the SIS is that there will be no significant impact as a result of the proposed development it is recognised that the development will contribute to the fragmented loss of approximately 0.85 ha of natural bushland within the development footprint and further controlled management of 1.78 ha for asset protection zones.

102 On the question of habitat connectivity the SIS comments that Willandra Road and Lady Penrhyn Drive provides significant barriers to wildlife movement and that constraint provides significant reduced ecological values as a natural area corridor for wildlife dispersal. The ecological assessment report submitted provides an analysis of the site's corridor values and states that there is a significant limitation of the site to function as a recognised corridor due to steep roadside cuttings and Lady Penrhyn Road being the only vehicle for access in and out for the 170 dwelling houses at Red Hill. The SIS comments that habitat connectivity will be retained within land to the east and Council open-space reserve and the unformed public road reserve. Refer to figure 6. The SIS addresses the issue of environmental caution and under the heading of precautionary principle states:

“The extent of ecological assessment over 10 years by a number of ecological consultants concluded that the landscape contains no significant ecological values. These impacts have arisen from both direct and indirect impacts from nearby residential development, road construction, weed invasion, noise from moving vehicles, increased fire regimes, altered drainage regimes and a lack of buffer distances in previously approved development in the area.

103 In my assessment of the environmental impact of the proposed development under s79C, the proposal is satisfactory, and this contention would not warrant refusal of the application. I recognise that the majority of the site will be modified. However, the environmental outcome is not unreasonable in the circumstances of this case. I say this having regard to the unique location of the subject site and the analysis of the ecological value of the site as set out in the SIS. The site analysis, the architectural plans and landscape plan provide for a development that in my assessment will provide for an appropriate fit in its context and a transition from the residential areas of the south-west and the bushland to the north.

Housing density and Subdivision Standards

104 The council states the housing density standard is one dwelling per 20 ha of site area and states that housing density is measured by dividing the site area by the number of dwellings, which would equate to one dwelling for 795 sq m of site area. The council further contends the development does not fall within the exception set out as the development is not the purpose only of housing for older people or people with a disability. Furthermore, the council contends that the development is not consistent with the general principles of development control in cl 20, and the requirements for the Director-General's concurrence because the standard is varied by more than 10% is required.

105 Clause 12 requires the consent authority to be satisfied that the development will comply with the development standards set out in the locality statement and s cl B requires the consent authority to be satisfied development is consistent with the desired future character in summary.

106 The Oxford Falls Valley provides the desired future character statement and under built form the maximum housing density is one dwelling per 20 ha of site area except C

“on land that adjoins a locality primarily used for urban purposes, and on which a dwelling house is permissible where there is no maximum housing density if the development is the purpose of housing for older people or people with a disability and the development complies with the minimum standards set out in cl 29

(a) whether non-compliance with the development standard in issue raises any matter of significance to the state or regional environmental planning; and

107 That the proposed development includes a proposal for torens title subdivision and housing for older people. As such, the Council contends the proposal does not fall within the exceptions set out in paragraph C of the Housing Density Standard.

108 I accept the submission on behalf of the applicant that the word ‘only’ has been inserted into the contention and I am satisfied the proposed development is for the purpose of housing for older people and people with a disability and therefore falls under the Housing Density exception in subcl C. I accept the evidence of Mr Cady that the locality statement provides a generic 20 ha lot size density standard subject to the specific exceptions which includes “C” housing for older people and people with a disability. I also accept that the subject site adjoins a ‘locality’ primarily used for urban purposes on which a dwelling house is permissible and as such no maximum housing density is required for the purpose of housing for older people. Where such developments comply with the minimum standards set out in cl 29. This includes a floor space ratio of 0.5:1 whereas the proposed development is 0.23:1 and height restrictions that are also complied with.

109 I am satisfied that while the development application includes a proposal to subdivide the land into 2 Torrens title lots that the development is for the purpose of providing housing for older people. The subdivision is to allow the existing dwelling house to remain on the site and the RFS has deemed the existing dwelling inappropriate for use for housing for older people due to its proximity to the northern boundary. However, they raised no issue to the existing continued use of the building as a dwelling.

110 It was submitted on behalf of the respondent that the development contravenes the housing density standard by more than 10% and the Director-General has not given concurrence. However, it was also submitted that the Court has the power under s39(6) of the Land and Environment Court Act 1979 and I exercise this function in allowing the variation.

111 The LEP 2000 in appendix B for the Oxford Falls Valley locality has an inbuilt SEPP1 provisions where the concurrence of the Director is required and the matters that shall be taken into consideration in deciding whether concurrence should be granted. That is, where it raises matters of significance of the state or regional environmental planning and the public benefit of maintaining the planning control adopted by the plan. I am satisfied that there are no issues of State or regional environmental planning significance that are raised by a variation to the housing density standard and that it does not undermine the housing density standard in the LEP in the circumstances of this case. Having regard to the location of the subject site and the suitability of the proposed development for the site the variation cannot be seen as a precedent that others may seek to invoke without the proper consideration of the merits of individual sites. I have considered the need for concurrence as a precautionary measure in the allowing the variation.

112 On the question of whether cl 20 is available to vary standards, Mr Cole is of the opinion that the development is not consistent with the B2 Oxford Falls Valley locality desired future character statement and general principles of development control and therefore consent cannot be granted pursuant to cl 20. Mr Cady on the other hand considers that the provision to vary a standard in cl 20 is available if the design does not comply with one or more development standards provided the resulting development is consistent with the general principles of development, control the desired future character of the locality and any relevant state environmental planning policy. I accept Mr Cady's assessment that the proposed development is consistent with all general principles of development control and no SEPPs are in contention. The question of consistent with the desired future character is addressed above.

113 Mr Cole is of the opinion that the proposed development fails to meet the minimum allotment sites the subdivision, which is the same as the minimum density for a single dwelling (being one dwelling per 20 ha). He states that putting aside the proposed housing for older people. the minimum allotment size required for the 2 lot torrens title subdivision would be 40 ha and the proposed subdivision would result in an over development of environmentally constrained land. Mr Cole reiterates his opinion that the development does not fall within the exception of paragraph C of the housing density standard as the development is not only for the purpose only of housing for older people and incorporates torrens title subdivision. He concludes that consent cannot be granted under cl 20 notwithstanding the non-compliance with the housing density standard as the development is not consistent with the general principles of development control and the DFC.

Reason:

To ensure bushland management

Reason:

To protect trees to be retained.

Reason

Environmental Protection, Monitoring and Enhancement

Reason:

No cats, dogs (other than “assistance animals” as defined by the Companion Animals Act, 1998), horses, sheep, cattle and other animals of the kinds which fall within the definition of “stock” under the Rural Lands Protection Act 1998 are permitted onsite of Lot 1 in the proposed torrens title subdivision at any time in-perpetuity unless under the immediate control of a resident or they are otherwise restrained.

Prior to the issue of a occupation certificate a section 88B instrument which includes the restrictive covenant which prohibits the keeping of the set animals, in registrable form shall be prepared by the owner of the land and produced to Council for approval and execution. 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

Reason:

Environmental Protection

Reason:

Reason for deletion: this is covered by condition 55

A copy of the certificate of title demonstrating the creation of the positive covenant and restriction for on-site storm water detention as to user is to be submitted to Council following registration.

Reason:

A restriction as to user shall be created on the title to the common property in the proposed strata plan applying to Lot 1 over the on-site stormwater detention system to be located within the common property in proposed Lot 1 restricting any alteration to the levels and/or any construction on the land and any alterations or additions to the system. The terms of such restriction are to be prepared to Council’s standard requirements, (available from Warringah Council), at the applicant’s expense and provided to Council by instrument in registrable form prior to the issue of an occupation certificate. Warringah Council shall be nominated as the party to release, vary or modify such restriction. The Council shall execute the instrument at the same time the strata certificate is issued or promptly after being provided with a copy of the strata certificate if the strata certificate is given by a private Certifier, so that the instrument may be registered at the same time as the registration of the strata plan.

Details demonstrating compliance with such provision are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate.

Reason:

The Civil Engineer responsible for the supervision of the civil drainage works shall certify that the completed works have been constructed in accordance with this consent and the approved Construction Certificate. Works as Executed data certified by a registered surveyor is to be provided to Council. Full details of the information to be submitted to Council, as part of the Works as Executed Data, are outlined in Council's 'Guideline for preparing Works as Executed data for Council stormwater assets' which is available from Council's Natural Environment Unit. The Works as Executed data is to be verified by the Principal Certifying Authority prior to submission of any documentation.

Works As Executed (WAE) plan,
a Spreadsheet Schedule of all stormwater asset attributes and
a CCTV Report of the completed pipeline
Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate.

Reason:

Upon completion of the on-site stormwater detention (OSD) system, certification from a consulting engineer and a “work as executed” (WAE) drawing certified by a registered surveyor and overdrawn in red on a copy of the approved OSD system plans are to be provided to Council. Additionally a Compliance Certificate is to be issued by a suitably qualified member of the Institute of Engineers Australia, stating that the works are in accordance with the approved plans.

Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate.

Reason:

A positive covenant shall be created on the title to the common property in the proposed strata plan applying to Lot 1 requiring the proprietor of the land to maintain the on-site stormwater detention structure in accordance with the standard requirements of Council’s On-site Stormwater Detention Technical Specification. The terms of the positive covenant are to be prepared to Council’s standard requirements, (available from Warringah Council website at ), at the applicant’s expense and provided in registrable form to Warringah Council’s delegate prior to the issue of an occupation certificate. Warringah Council shall be nominated as the party to release, vary or modify such covenant. The Council shall execute the instrument at the same time the strata certificate is issued or promptly after being provided with a copy of the strata certificate if the strata certificate is given by a private Certifier, so that the instrument may be registered at the same time as the registration of the strata plan.

Details demonstrating compliance with such provision are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate.

Reason:

All internal walls of the garbage storage area shall be rendered to a smooth surface, coved at the floor/wall intersection, graded and appropriately drained to the sewer with a tap in close proximity to facilitate cleaning.

Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate.

Reason:

House/building number is to be affixed to the building to be readily visible from the new access driveway.

Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate.

Reason:

Arrangements are to be made for the provision of underground telecommunications services from the point of connection to the building.

Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate.

Reason:

At the completion of all works, a Fire Safety Certificate will need to be prepared which references all the Essential Fire Safety Measures applicable and the relative standards of Performance (as per Schedule of Fire Safety Measures). This certificate must be prominently displayed in the building and copies must be sent to Council and the NSW Fire Brigade.

Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Interim / Final Occupation Certificate.

Each year the Owners must send to the Council and the NSW Fire Brigade an annual Fire Safety Statement which confirms that all the Essential Fire Safety Measures continue to perform to the original design standard.

Reason:

A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.

Application must be made through an authorised Water Servicing Co-ordinator. Please refer to the Building Developing and Plumbing section of the web site < > then refer to “Water Servicing Coordinator” under “Developing Your Land” or telephone 13 20 92 for assistance.

Following application a “Notice of Requirements” will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Co-ordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design.

Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any Interim / final Occupation Certificate and / or Subdivision Certificate.

Reason:

The Swimming Pool shall not be filled with water nor be permitted to retain water until:

(b) A certificate of compliance prepared by the manufacturer of the pool safety fencing, shall be submitted to the Principal Certifying Authority, certifying compliance with Australian Standard 1926.

(c) Filter backwash waters shall be discharged to the Sydney Water sewer mains in accordance with Sydney Water’s requirements. Where Sydney Water mains are not available in rural areas, the backwash waters shall be managed onsite in a manner that does not cause pollution, erosion or run off, is separate from the irrigation area for any wastewater system and is separate from any onsite stormwater management system.

(d) Signage is to be provided stipulating appropriate instructions for artificial resuscitation methods.

(e) A warning sign stating ‘YOUNG CHILDREN SHOULD BE SUPERVISED WHEN USING THIS POOL’ has been installed.

(f) All signage shall be located in a prominent position within the pool area.

Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of a Interim / Final Occupation Certificate.

Reason:

If remediation work is required, a validation and site monitoring report, including a survey of all sites used for landfill disposal is to be prepared in accordance with relevant guidelines issued under the Contaminated Land Management Act 1997 must be submitted to the Council within one month from completion of the remediation work.

The plan must identify the extent and depth of all fill material in relation to existing roadways and buildings. The survey must also include a detailed survey of all sites used as landfill disposal pits, identifying boundaries and depth of disposal pits in relation to existing roadways and buildings.

Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of any interim / final Occupation Certificate.

Reason:

A restriction as to user pursuant to s88E of the Conveyancing Act 1919 is to be registered on the title to all lots in the proposed strata plan applying to proposed Lot 1 of the subdivision approved by this consent

The restriction shall be for the benefit of the Council, in terms of condition 7(a) of this consent as to the permitted occupancy for the purpose of housing for older people or people with a disability and shall stipulate that Council is the sole authority authorised to release or modify the restriction.

The terms of such restriction shall be prepared at the applicant’s expense and provided to Council by instrument in registrable form prior to the issue of an occupation certificate. Warringah Council shall be nominated as the party to release, vary or modify such restriction. The Council shall execute the instrument at the same time the strata certificate is issued or after being provided with a copy of the strata certificate if the strata certificate is given by a Private Certifier, so that the instrument may be registered at the same time as the registration of the strata plan.

Details demonstrating compliance with such provision are to be submitted to the Certifying Authority prior to the issue of any interim/final Occupation Certificate.

Reason:

Details demonstrating that all stipulated requirements of this development consent for Housing for Older people or people with a disability have been completed.

Reason: To ensure statutory requirements have been completed, public safety, and equitable access for seniors of people with a disability.

ON-GOING CONDITIONS THAT MUST BE COMPLIED WITH AT ALL TIMES

two (2) per 3 bedroom unit and a minimum of one(1) per 2 bedroom unit	-	Residential
all other onsite spaces	-	Visitors

Car-parking provided shall be used solely in conjunction with the uses contained within the development. Each car parking space allocated to a particular unit / tenancy shall be line marked and numbered or signposted to indicate the unit / tenancy to which it is allocated.

Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate.

Reason:

Visitor car parking must be permanently available, freely accessible and clearly marked / signposted. The visitor car parking spaces area not to be allocated to individual units / tenancies.

Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate.

Reason:

Appropriate sign(s) shall be provided and maintained within the site at the point(s) of vehicular egress to compel all vehicles to come to a complete stop before proceeding onto the public way.

Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate.

Reason:

A sign, legible from the street, shall be permanently displayed to indicate that visitor parking is available on the site and the visitor car parking spaces shall be clearly marked as such.

Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate.

Reason:

Waste and recyclable material, generated by this premises, must not be collected between the hours of 10pm and 6am on any day.

Reason:

Commercial waste and recycling material/storage bins must be stored in a separate area to the residential waste and recycling material/storage bins as shown on the approved plans.

Reason:

Washing of vehicles/boats/trucks/buses etc is to be conducted in a car wash bay, which is roofed and bunded to exclude rainwater. All wastewater from car washing is to be discharged to the sewer under a Trade Waste Agreement from Sydney Water. Alternative water management and disposal options may be possible where water is recycled, minimised or re-used on the site. Any such alternative option is to comply with all relevant Standards.

Environment Protection Authority’s Environment Protection Manual for Authorised Officers: Technical Section Small Business (Car Washing Waste)
Environment Protection Authority’s Environment Protection Manual for Authorised Officers - Technical Section Water (Bunding and Spill Management)

Reason:

All loading and unloading operations shall be carried out wholly within the confines of the site and within the approved loading areas, at all times.

Reason:

No deliveries, loading or unloading associated with the premises are to take place between the hours of 10pm and 6am on any day.

Reason:

A positive covenant shall be created on the title of the land to Lot 1 in the proposed torrens title subdivision requiring the proprietor of the land to provide access to the waste storage facilities prior to the issue of an Interim/Final Occupation Certificate. The terms of the positive covenant are to be prepared to Council’s standard requirements, (available from Warringah Council), at the applicant’s expense and endorsed by Council prior to lodgment with the Department of Lands. Warringah Council shall be nominated as the party to release, vary or modify such covenant.

Reason: To ensure ongoing access for servicing of waste facilities

CONDITIONS THAT MUST BE COMPLIED WITH PRIOR TO THE ISSUE OF ANY SUBDIVISION CERTIFICATE

Reason:

The applicant is to ensure all services including, water, electricity, telephone and gas are provided, located and certified by a registered surveyor on a copy of the final plan.

Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of the Subdivision Certificate.

Reason:

If the Subdivision Certificate Application is lodged with Council, the final plan and nine (9) copies of the strata plan are to be lodged with the application, or if the Subdivision Certificate is obtained from an Accredited Certifier, a copy of the endorsed Subdivision Certificate plan is to be forwarded to Council within 14 days of lodgement with the “NSW Land and Property Information Division”.

Reason:

To enable the lodgement of the final plan at the NSW Land and Property Information Department the Subdivision Certificate shall not be issued until the Final Occupation Certificate for the approved development.

Reason:

An Section 88B instrument under the Conveyancing Act is to incorporated on the title of the property which shall include Council’s standard wording for waste collection indemnifying from damage or liabilities from Council or Council contractor vehicles and staff for waste collection purposes. The draft 88B instrument is to be submitted to Council for approval prior to the issue of the subdivision certificate.

Reason:

To provide satisfactory waste collection services.

[Special condition]

Prior to the issue of the Subdivision Certificate, a completed Subdivision Certificate form, a final plan of subdivision prepared in accordance with the requirements of the Conveyancing Act 1919 are to be submitted to Council. Nine copies of the final plan of subdivision are to be submitted. All plans of survey are to show connections to at least two Survey Co-ordination Permanent Marks. The fee payable is to be in accordance with Council’s fees and charges.

Reason:

A plan of subdivision identifying the location of water, gas, telephone, electricity and stormwater drainage in relation to boundaries and/or relevant easements, prepared by a registered surveyor is to be submitted to Council.

Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of the Subdivision Certificate.

Reason:

A declaration by a registered surveyor shall be provided to Council as evidence that all construction has been effected within the appropriate property, easement boundaries and rights of carriageway. This shall be in the form of a copy of the final subdivision or easement plan, with the distances from the boundaries to the edges of these structures endorsed in red thereon and signed by the surveyor.

Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of the Subdivision Certificate.

Reason:

An easement for drainage (under the provisions of Section 88B of the Conveyancing Act) is to be created on the title to the common property in proposed strata plan applying to proposed lot 1 to ensure all drainage infrastructure is located within the appropriate easement(s).

The terms of the easement shall be prepared at the applicant’s expense and provided to Council by instrument in registrable form prior to the issue of an occupation certificate. Warringah Council shall be nominated as the party to release, vary or modify such restriction. The Council shall execute the instrument at the same time the strata certificate is issued or promptly after being provided with a copy of the strata certificate if the strata certificate is given by a private Certifier, so that the instrument may be registered at the same time as the registration of the strata plan.

Details demonstrating compliance with such provision are to be submitted to the Principal Certifying Authority prior to the issue of the Occupation Certificate.

Reason:

An easement for services (under the provisions of Section 88B of the Conveyancing Act) is to be created on the title to the common property in proposed strata plan applying to proposed lot 1 to ensure all utility services are located within the appropriate easement(s).

The terms of the easement shall be prepared at the applicant’s expense and provided to Council by instrument in registrable form prior to the issue of an occupation certificate. Warringah Council shall be nominated as the party to release, vary or modify such restriction. The Council shall execute the instrument at the same time the strata certificate is issued or promptly after being provided with a copy of the strata certificate if the strata certificate is given by a private Certifier, so that the instrument may be registered at the same time as the registration of the strata plan.

Details demonstrating compliance with such provision are to be submitted to the Principal Certifying Authority prior to the issue of the Occupation Certificate.

Reason: Council’s Subdivision standards and statutory requirements of the Conveyancing Act 1919. (DACENH18)

__________________________

J S Murrell

Commissioner of the Court

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Citations

Lipman Properties Pty Ltd v Warringah Council [2010] NSWLEC 1310

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Statutory Material Cited

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CITATION:	Lipman Properties Pty Ltd v Warringah Council [2010] NSWLEC 1310
PARTIES:	APPLICANT Lipman Properties Pty Ltd RESPONDENT Warringah Council
FILE NUMBER(S):	10973; 10974 of 2009
CORAM:	Murrell C
KEY ISSUES:	DEVELOPMENT APPLICATION :- for Seniors Living and subdivision; Threatened species - whether likely adverse impact and whether SIS required; Whether proposal consistent with desired future character of area; overdevelopment of site; draft LEP; precedent; public submissions.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Threatened Species Conservation Act 1995 Roads Act 1993 (NSW) Rural Fires Act Strata Schemes (Freehold Development) Act 1973 Environmental Planning and Assessment Regulation 1994 Warringah Local Environmental Plan 2000 Draft Warringah Local Environmental Plan 2009 Warringah Development Control Plan
CASES CITED:	BGP Properties v Lake Macquarie City Council [2004] 138 LGERA 237 Retirement by Design v Warringah Council [2007] 153 LGERA 372 Mete v Warringabh Council [2004] 133 LGERA 420 Beacon Hill Retirement Pty Ltd v Warringah Council [2010] NSW LEC 1011 Newcastle and Hunter Valley Speleological Society v Upper Hunter Shire Council and Stoneco [2010] NSW LEC 48 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 Motorplex (Australia) Pty Ltd v Port stephens Council [No.2] [2007] NSWLEC 770
DATES OF HEARING:	16 - 18 June 2010 2, 8 - 9 July 2010 Updated advice received 22 and 23 December 2010
DATE OF JUDGMENT:	30 December 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr C J Leggat (Senior Counsel) with Mr N Eastman (Barrister) SOLICITOR G P Cummins & Co RESPONDENT Mr J Robson (Senior Counsel) SOLICITOR Wilshire Webb Staunton & Beattie Lawyers