Lucas and Tait (Sales) Pty Ltd v Shoalhaven City Council

[2003] NSWLEC 367

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Land and Environment Court

of New South Wales

CITATION:	Lucas & Tait (Sales) Pty Ltd v Shoalhaven City Council [2003] NSWLEC 367
PARTIES:	APPLICANT Lucas & Tait (Sales) Pty Ltd RESPONDENT Shoalhaven City Council
FILE NUMBER(S):	10389 of 1999
CORAM:	Moore C
KEY ISSUES:	Development Application :- Proposed consent orders Bushfire issues
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	5 November 2003
EX TEMPORE JUDGMENT DATE :	11/05/2003
LEGAL REPRESENTATIVES:	APPLICANT Ms P Hollott, solicitor Minter Ellison RESPONDENT Ms A Pearman, barrister INSTRUCTED BY Morton & Harris

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10389 of 1999

Moore C

5 November 2003

Lucas &Tait (Sales) Pty Ltd

Applicant
v

Shoalhaven City Council

Respondent

Judgment

1 The matter that comes before the Court is a proposed nine lot community title subdivision at Suncrest Avenue, Sussex Inlet. There is a long planning history associated with the matter that it is not necessary to traverse, suffice it to say that the matter that is presently before the Court is a significantly lesser proposal than other matters that have the subject of a long dialogue between the applicant and the respondent council over many years.

2 Proceedings in this matter were commenced in this Court in 1999 and, as a consequence of ongoing discussions, the council and the applicant now come before the Court with proposed consent orders. There, however, remains one objector to the proposal, a Ms V Douglas of 110 Suncrest Avenue, Sussex Inlet. Ms Douglas had initially intended to give evidence in these proceedings but, for reasons of ill health, has been unable to attend Court to do so.

3 An affidavit of Mr Grant Gleeson, solicitor, of 88 Kinghorne Street, Nowra, was read by Ms Pearman for the respondent council which affidavit deposed, inter alia, that he had advised Ms Douglas that if she wished to put further material to the Court today she would need to instruct a solicitor or barrister to attend on her behalf. When that affidavit was read, I expressed my concern that it would and should have been possible for Ms Douglas to put further written material to the Court without the difficulty or expense of legal representation. An adjournment was granted to permit the council to contact her to see if she wished to do so. She subsequently advised that she did wish to do so and a supplementary submission was received by the Court via facsimile through Ms Pearman’s chambers.

4 In addition, concerns arose as to the status of the material proposed to be put on behalf of the respondent counsel by Ms Kerry Rorke, and a further adjournment was granted to enable evidence as to her qualifications and understanding of the Expert Witness Practice Direction to be obtained in order that her evidence might be considered as expert evidence, as it canvassed the technical matters raised by Ms Douglas’s objections.

5 Ms Pearman read a further affidavit of Mr Gleeson that sets out the qualifications and expertise of Ms Rorke, together with her understanding and awareness of, and being bound by, the Expert Witness Practice Direction. I am satisfied that under all the circumstances Ms Rorke’s statement is appropriate to be considered as expert evidence in response to a wide range of issues, including the issues specifically raised by Ms Douglas in her objections.

6 Ms Douglas’s objection are first raised in a letter of 17 September 2003, which is appendix 8 to the statement of evidence of Ms Rorke. Ms Rorke canvasses each of the matters in short that are raised by Ms Douglas, and she does so at pars 9.1 to 9.8 of her statement of evidence.

7 With respect to the objections to the development from Ms Douglas in her original submission, they are summarised accurately by Ms Rorke at 9.1, with one exception. The matters that are included in the summary are increased traffic in Suncrest Avenue and safety risks; problems with the sewerage system; loss of view of the bushland; loss of wildlife; impact on the SEPP 14 wetlands and bushfire risk. The one matter that is not listed by Ms Rorke is Ms Douglas’s concerns as to the ability for the provision of telephone services to the allotment, which, although not a substantial issue ordinarily in proceedings of this nature, I note is dealt with by condition 3B of the proposed conditions of consent, which would require the provision of a telephone service to each allotment. If such service was not able to be provided then the applicant would be unable to proceed with the development or would be required to further approach the council or the Court for modification of the consent in that regard.

8 With respect to the issue of increased traffic in Suncrest Avenue, it is Ms Rorke’s evidence that there is not likely to be a significant impact, that it is in within a 50 km per hour road network, and that there are adequate site distances in conformity with Roads and Traffic Authority guidelines. I am satisfied on her expert evidence that there is no basis on traffic grounds to object to the proposed development.

9 Similarly, with respect to the capacity of the sewerage system, it is Ms Rorke’s expert evidence that there is capacity within the local sewerage system and there is no basis therefore to reject – absent any formal expert evidence to the contrary.

10 Loss of view of bushland is acknowledged by Ms Rorke but she notes that the proposed subdivision and residential development is permissible within the zone. I note that the general building envelopes have been designated and are proposed to be required as to be observed as part of the conditions through a public positive covenant. However, there will be substantial removal of the bushland and that is a necessary consequence of any dwelling being constructed anywhere on that site for reasons of fire protection. In this regard, even though there might well be some loss of amenity for Ms Douglas, the requirements for vegetation removal dictated by the necessity for appropriate fire protection measures on the site renders the removal of the bushland on that ground necessary.

11 Its ecological impact is a matter that is also appropriate to be considered, and I will return to that later in the context of Ms Douglas’s supplementary submission. Her supplementary submission effectively deals with the issue of flora and fauna impact; the issue of the provision of a buffer strip to the SEPP 14 wetland and to the retention of the Sydney Coastal Estuary Swamp Forest Complex in the region. She specifically refers in her letter transmitted by facsimile today to pars 3.6 and 9.7 of Ms Rorke’s statement of evidence.

12 With respect to the SEPP 14 wetlands, I have had tendered a number of reports prepared by Mr Kevin Mills of Kevin Mills and Associates, Ecological and Environmental Consultants. As they are not prepared for proceedings in this Court but were prepared for the information of the council, they are not strictly in the form required for expert evidence; however, they are generally in conformity with what would be required and certainly set out expert material. Mr Mills is known to the Court as an appropriately qualified expert in these areas.

13 Mr Mills, for his most recent report dated August 2003, has undertaken a mapping exercise of the SEPP 14 wetlands for the purposes of delineating them on land owned by the applicant at Sussex Inlet. The land has had added to it a dedicated 30 m wide buffer area along the defined wetland edge in order to provide protection for the wetland area, and Mr Mills expresses the opinion that such a buffer area is appropriate and will effect protection of the wetland.

14 Absent any expert evidence to the contrary, I accept the evidence of Mr Mills. Whilst I understand and appreciate the concerns that are expressed by Ms Douglas and indeed are reinforced by a letter from Councillor Jane Bange which is addressed to me in these proceedings – although not formally tendered, it is available to me pursuant to the wide powers that I have to inform myself on relevant matters. It reinforces the concerns expressed by Ms Douglas but takes the matter no further in terms of rebuttal of Mr Mills’s statement of evidence. I therefore conclude, Mr Mills having undertaken an eight part test and reaching the conclusion that there is no particular inhibition to the subdivision on these grounds, that there is no basis to refuse it.

15 Mr Mills also dealt with the issue of Sydney Coastal Estuary Swamp Forest, and he did so at page 13 of his May 2003 report. With respect to the evidence of Ms Rorke on this matter, this is contained in par 9.5 of her statement of evidence – it reads:

‘There are no threatened species found on the site that are likely to be impacted by the proposed development. The loss of 1.5 ha of disturbed vegetation is not likely to have a significant impact on wildlife movement or habitat within the area.’

16 The only matter that is of significance arising out of that is her evidence that the vegetation on the site is disturbed. It was Mr Mills’s conclusion in the May 2003 report that further studies were required as to the possible impact on the Sydney Coastal Estuary Swamp Forest, which is an endangered ecological community listed under the Threatened Species Conservation Act, and that, absent such further study, a species impact statement would be required.

17 Mr Mills was commissioned by the applicant to provide a supplementary study on this issue, and he did so in June 2003. At p 7 he reached a conclusion relating to an eight part test that he had undertaken with respect to the Sydney Coastal Estuary Swamp Forest and as a consequence he concluded that the proposed subdivision would not result in any significant effect on the community within the region and that a species impact statement was therefore not required. He gave as his reasons for doing so:

‘This conclusion is reached principally because it is clear from our field investigations both recently and over many years on the South Coast that the community is common in the Sussex Inlet District as well as along the whole of the Shoalhaven Coast. Also taken into account is the fact that the proponent proposes to dedicate all of the remaining stands of this community at Badgee Lagoon as well as other stands to the west of Badgee Village adjacent to St George’s Basin for conservation purposes’.

18 Ms Hollot for the applicant has indicated to me that she is unable to confirm, in as strong terms as Mr Mills has, that the dedication will in fact happen but she has confirmed that the applicant remains in discussions with the local and state authorities concerning other lands it owns in the area and the applicant presently maintains its proposal for dedication of those areas to conservation purposes.

19 In light of that intention and the general conclusions about the availability of other areas of the endangered community existing, together with Ms Rorke’s evidence as to the disturbed nature of the site, I am satisfied on balance that it does not constitute sufficient inhibition to the development for me to refuse its approval.

20 The third matter that is raised by Ms Douglas that I have not otherwise dealt with relates to the bushfire trail that is proposed around the perimeter of the site in specifically Ms Rorke’s statement at 9.7:

‘Bushfire is a risk in this locality; however, the proposed subdivision has been designed in accordance with planning for bushfire protection 2001 and is provided with a perimeter fire trail for the use of the Rural Fire Service. This adds to the protection of the general locality.’

21 Ms Douglas expresses her concern as to the possible impact of the fire trail on the wetland but acknowledges the necessity of the fire trail. There is nothing in the reports by Mr Mills that expresses concern, or sufficient concern, at the fire trail, its construction or drainage from it to warrant refusal on those grounds. However, Ms Douglas’s raising of those concerns took me to a consideration of the fire risk issues and to the proposed conditions of consent with respect to them.

22 The applicant has put in evidence a bushfire protection assessment prepared by Mr Rod Rose of Bushfire and Environmental Services of Falls Creek, New South Wales, who are bushfire planning and management consultants. At p 6 of the document, Mr Rose offers the general comment that the bushfire risk to the proposed subdivision is considered to be major for two reasons which he enumerates. The first is that the subject land and surrounding areas have had relatively frequent wildfire in the past and secondly that extensive areas of the forest and other fire-prone vegetation currently occur to the west of the subject land.

23 Mr Rose sets out a number of matters in points 6, 7, 8 and 9 of his report at pp 6 to 10 of that document proposing conditional matters for the future for the subdivision. Many of them are matters which are appropriate to be dealt with at development application stage for the construction of any dwellings or structures to be erected on the site and do not need to be considered in the context of these proceedings. However, he does raise at 7.8 of his report on p 10 requirements for the placement and construction of fire hydrants along Suncrest Avenue as part of the reticulated mains water supply to the site. His requirements appear to be generally in conformity with those set out on p 35 of Planning for Bushfire Protection at 6.4.3(a) dealing with urban subdivisions.

24 The proposed conditions of consent at condition 3(c) deal with the provision of water supply to the proposed subdivision but do not pick up the matters that are referred to in Mr Rose’s report. I indicated to the parties that I considered that this was a curable defect in the conditions and that its present absence was not determinative but was able to be addressed if the parties agreed to it by the settlement of an appropriate condition and its submission to me.

25 I therefore conclude that the orders which it is appropriate for the Court to make, and proposes to make in chambers at some future time after the lodgement of an agreed condition settled by the parties dealing with the issue of water supply to fire hydrants in Suncrest Avenue, would be:

1. The appeal is upheld.
2. Application SF8287 for a nine lot subdivision at Suncrest Avenue, Sussex Inlet, being Lot 244 DP 253235 in accordance with plans numbered 24025 and 24025B dated April 2003 drawn by Allen, Price & Associates, is determined by the grant of development consent subject to the conditions in Annexure ‘A’; and
3. The exhibits, except Exhibits 2 and 5, may be returned.

26 Those orders will be issued in chambers unless the parties require the matter to be re-listed for any purpose in the intervening period. The draft condition as agreed is to be provided to the Court in electronic form within 14 days, at liberty to re-list before me at 9.30 in the morning on two days notice if in the unlikely event it is required.

Commissioner of the Court