Maharishi's Global Administration through Natural Law Limited (ABN 20 001 342 301) v Blue Mountains City Council

[2017] NSWLEC 1128

Land and Environment Court

New South Wales

Medium Neutral Citation:

Maharishi's Global Administration through Natural Law Limited (ABN 20 001 342 301) v Blue Mountains City Council [2017] NSWLEC 1128

Hearing dates:

20 and 21 February 2017

Date of orders:

15 March 2017

Decision date:

15 March 2017

Jurisdiction:

Class 1

Before:

Adam AC

Decision:

In file 2016/00161014 the appeal is dismissed.
1. Development application X/611/2015 for the construction of a dwelling house and associate works on Lot 207 is refused.

In file 2016/00161520 the appeal is dismissed.
1. Development application X/612/2015 for the construction of a dwelling house and associate works on Lot 208 is refused.

In file 2016/00161070 the appeal is upheld.
1. Development application X/709/2015 for the construction of a dwelling house and associate works on       Lot 41 is approved subject to the conditions in Annexure "A".
2. The Exhibits other than A, B, C, D and 2 are returned.

Catchwords:

In matter 00161014 of 2016
DEVELOPMENT APPLICATION - dwelling house in bushland setting- permissibility- savings provision in LEP- weight given to LEP 2015 – agreement between experts – objector concerns – incompatible with LEP 2015 – Refused

 

In matter 00161520 of 2016
DEVELOPMENT APPLICATION - dwelling house in bushland setting- permissibility- savings provision in LEP- weight given to LEP 2015 – agreement between experts – objector concerns – incompatible with LEP 2015 – Refused

  In matter 00161070 of 2016
DEVELOPMENT APPLICATION - dwelling house in bushland setting- permissibility- savings provision in LEP- weight given to LEP 2015 – agreement between experts – objector concerns – not incompatible with either LEP 1991 or LEP 2015 - Upheld

Legislation Cited:

Blue Mountains Local Environmental Plan 1991
Blue Mountains Local Environmental Plan 2015
Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Environment Protection and Biodiversity Conservation Act (Cwlth) 1999
Land and Environment Court Act 1979
Threatened Species Conservation Act 1995
Willoughby LEP 2011

Cases Cited:

Alamdo Holdings Pty Limited v The Hills Shire Council [2012[ NSWLEC 1302
Anderson v Ballina Shire Council [2006] NSWLEC 76
BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Carstens v Pittwater Council [1999] NSWLEC 249
EMGA Mitchell McClellan Pty Limited v Byron Shire Council [2015] NSWLEC 1498
Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142
Terrace Tower Holdings v Sutherland Shire Council [2003] 289

Texts Cited:

Planning for Bush Fire Protection. NSW Rural Fire Service 2006

Category:

Principal judgment

Parties:

Maharishi's Global Administration through Natural Law Limited (Applicant)
Blue Mountains City Council (Respondent)

Representation:

Agent:
Mr N Kirwan (Applicant)
Solicitors:
Mr A Seton, Marsdens Law Group (Respondent)

File Number(s):

2016/161014, 2016/161520, 2016/161070

Publication restriction:

No

Judgment

1. COMMISSIONER: Travelling west on the Great Western Highway from Katoomba a left fork, at the well-known landmark the Explorers Tree, leads to Pulpit Hill Road which runs out to the Elphinstone Plateau (also referred to as Radiata Plateau).

2. The Applicant in these proceedings is Maharishi's Global Administration Through Natural Law Ltd (MGANL), the owner of a large landholding on the Plateau, with the address 28 Pulpit Hill Road. In June and July 2015, MGANL made three Development Applications to Blue Mountains City Council (the Council), the Respondent, seeking consent for the construction of single identical residences and ancillary works on each of three separate lots, which are part of MGANL's landholding.

3. The three lots are Lot 41, Lot 207 and Lot 208. The location of these lots relative to each other is shown in the plan below (Exhibit S).

4. The upper part of Exhibit S shows the distribution of the lots. The lower part is a close up showing the access roads in more detail.

5. The lots are large, and the Principal Development Area on each lot is only a small proportion of the lot.

6. The proposed development on Lot 41 would be accessed from Pulpit Hill Road via the access handle between numbers 16 and 20 Pulpit Hill Road. Lots 207 and 208 would be accessed via the unmade road which forms a continuation beyond the end of the sealed council maintained Pulpit Hill Road, and runs through Lot 41

7. The details of the lots and the Development Applications are given below:

Lot	Area (ha)	DA	Date DA Submitted	File Numbers
41 DP 816211	88.914	X/709/2015	24 July 2015	00161070 of 2016
207 DP 751657	64.6	X/611/2015	26 June 2015	00101014 of 2016
208 DP 751657	49.72	X/612/2015	26 June 2015	00161520 of 2016

8. While there are three separate proposals, on three separate lots, the proposals have been advanced by a single Applicant. The three proposals travelled together through the council assessment process. Many of the documents relevant to the assessment discuss all three lots; on other issues there are separate documents for each of the applications.

9. The council assessment process of the applications was, for a variety of reasons, protracted.

• In early July 2015 the Council wrote to MGANL requesting elevation plans reflecting the contours of the land and proposed ground levels. This information was provided by MGANL promptly.

• At the same time the applications were referred to NSW Rural Fire Service (RFS) as required by s79BA of the Environmental Planning and Assessment Act 1979 (EPA Act).

• In July 2015 the development applications were notified to nearby and neighbouring property owners by the Council. Unfortunately, it later transpired that not all relevant landholders were appropriately notified at this time. The applications were also referred internally to council’s specialist Environmental Health Officer and the Environmental and Landscape Assessment Officer for comment.

• On 12 August 2015 RFS wrote to the Council raising concerns about the proposed dwellings and the ability to meet the principles of Planning for Bush Fire Protection (PBP) 2006, and indicated there was insufficient information to properly assess the applications. On 18 August 2015 the Council wrote to MGANL requesting further information in relation to the concerns raised by the RFS.

• On 7 September 2015 the Council received a letter from MGANL’s planner, Mr Lonergan, with further information relevant to the development applications. On 7 October 2015 the Council received a letter from RFS with recommended conditions of consent.

• On 28 October 2015 a letter from the Council was sent to MGANL, advising that the information submitted with the application did not adequately demonstrate that the proposed development would not have significantly adverse environmental impacts upon:

− any environmentally sensitive vegetation,

− rare or threatened species of flora and fauna and their        habitat area,

− the hydrological aspects of the locality .

• The Council requested MGANL provide a Flora and Fauna Assessment Report and a Vegetation Management Plan (VMP) prepared by a suitably qualified and experienced person.

• On 5 January 2016 the Council wrote to MGANL seeking a response to the letter of 28 October 2015.

• On 8 January 2016 MGANL communicated with the Council by email requesting an extension of time to February 2016 to submit the required information.

• On the 20th January 2016 MGANL filed an application to appeal, pursuant to s97 of the Environmental Planning and Assessment Act, the deemed refusal of the three development applications.

10. The Court referred the matters to mandatory conciliation under section 34AA of the Land and Environment Court Act.

11. On 27 June 2016 the s34AA conciliation commenced on site. MGANL was represented by Mr N Kirwan, agent by leave of the Court. The Council was represented by its solicitor Mr A Seton. A number of council officers were present, including Ms Friedewald, the Council's Environmental and Landscape Assessment Officer. At the commencement a number of the objectors presented their concerns, amongst which was that a number of residents who should have been notified had not in fact been written to. This was subsequently confirmed. After hearing from the objectors, an inspection of the three lots, and particularly the Principal Development Areas (PDA), where construction of residences and their associated Ecomax on-site wastewater disposal systems was proposed, was conducted. The inspection also included viewing the proposed vehicular access routes in light of the specification required by the RFS.

12. On 2 August 2016 the Court directed that under s34AA(3) of the Land and Environment Court Act the proceedings were not to continue to be dealt with under s34AA (2), and were to be dealt with under s34C.

13. Discussions between the parties continued and the matter was subject to a number of mentions and directions hearings.

14. On 27 October 2016 the Court granted MGANL leave to rely on amended plans, and a timetable was set for filing and service of Amended Statements of Facts and Contentions, and the convening of Joint Conferences of Experts and preparation of Joint Expert Reports. The commencement, on site of the hearing, was set down for 20 February 2017.

15. The timetable was not adhered to and the Joint Expert Reports were not provided until the end of the week immediately prior to the hearing.

16. Three joint reports were produced; by the engineering experts, the town planning experts and the environmental experts. The engineering report was prepared by Mr Mark Santoro, Manager Civil Design, J. Wyndham Prince, for MGANL, and Ms Susan Jensen, Principal Development Engineer, Blue Mountains City Council, for the Council. The town planning experts were Mr Chris Lonergan for MGANL and Mr Gerard Turrisi, of GAT and Associates, for the Council. The environmental joint report was prepared by Mr Jeremy Pepper, of SLR Global Environmental Solutions, for MGANL and Ms Deborah Friedewald for the Council.

17. One report was produced for each of the discipline areas. Each report discussed issues relating to the contentions for each of the three development applications.

18. In all three reports the experts were in agreement that many of the contentions had been resolved by provision of further information and changes in location of components of the development all the remaining contentions could be addressed through imposition of appropriate conditions.

Statutory controls

19. A number of State Environmental Planning Policies apply to the proposals:

• State Environmental Planning Policy No 1 – Development Standards

• State Environmental Planning Policy (Building Sustainability Index BASIX) 2014

• State Environmental Planning Policy Sydney Drinking Water Catchment 2011.

All parts of the lots are within the Coxs River catchment, which is part of the Sydney Drinking Water Catchment

• Sydney Regional Environmental Plan No. 20 Hawkesbury -Nepean River (No. 2 1997)

20. At the time the development applications were submitted the then current LEP was the Blue Mountains Local Environmental Plan 1991

The objectives of LEP 1991 are

3.1 The principal objectives for the City are:

(a) To identify and protect the Blue Mountains’ natural and cultural heritage, and the distinctive character and amenity of local communities; to recognise and maintain the positive qualities of the traditional lifestyle enjoyed by the residents of the City; and to recognise the importance of the Blue Mountains National Park as the setting of the City.

(b) To concentrate and contain the spread of urban development.

(c) Environmentally sensitive design and bushfire protection

(i) To locate, design, carry out and service development so that it does not exceed land capability and other physical constraints of the Blue Mountains.

(ii) To implement a bush fire management plan which will not cause unacceptable impact on Water Supply Catchment Areas or environmentally sensitive areas.

(iii) To ensure that new development is located and managed so as to reduce the threat from bushfire.

(d)

(i) To achieve unpolluted streams, land and air as well as a stable, attractive landscape.

(ii) In the short term, to attain water quality appropriate for recreational use in the headwaters of the Blue Mountains’ streams.

(e) To improve the physical quality of life for residents of the Blue Mountains.

(f) To encourage tourism and other economic enterprises and the creation of employment opportunities which are sympathetic to the Blue Mountains’ character, and promote long term sustainability in the use of resources.

(g) To promote maximum efficiency in the use of resources.

(h) To maintain and improve the social environment by ensuring the planned development of community facilities, services, programmes and other activities relevant to the needs and aspirations of residents of the City.

21. The zoning map covering the three lots is Exhibit 14.

The relevant zones applicable to lots on which the proposed developments would be situated are:

6.2 Zone: Bushland Conservation (BC)

(a) To conserve the natural bushland character of the landscape surrounding the existing urban areas of the City and minimise the visual impact of development on the landscape, particularly when viewed from the Blue Mountains National Park.

(b) To protect the natural bushland buffer zones between towns, to avoid ribbon development and to conserve and enhance the views and vistas of natural bushland obtained from the Great Western Highway and the Great Western Railway, public places, lookouts and areas within the Blue Mountains National Park.

(c) To ensure that the form and siting of buildings, colours, landscaping and building materials are appropriate for, and harmonise with, the bushland character of the areas.

(d) To provide only for development that utilises and retains the natural bushland on the site as an important feature of the development.

(e) To ensure that development in bushfire prone areas is carried out so that effective bushfire management can be implemented within the property boundaries with appropriate environmental controls.

(f) To encourage landscaping and regeneration of natural bushland in areas with sparse tree or canopy cover.

Residential Bushland Conservation

6.3 Zone: Residential Bushland Conservation (RES-BC)

(a) To ensure that all development including subdivision is environmentally sensitive and site responsive and maintains and facilitates sustainable natural ecosystems and biodiversity within the Blue Mountains.

(b) To utilise best practice water management techniques:

• to protect, and where practicable to improve, existing perennial and non-perennial watercourses and the associated riparian zone, and

• to protect, and where practicable to improve, water quality, and

• to maintain pre-development downstream flow patterns, and

• to promote ecologically sustainable water and land management practices.

(c) To establish an appropriate landscape character by encouraging the preservation, regeneration and re-establishment of native bushland, where practicable.

(d) To ensure that the form and siting of development, and the building materials, colours, and landscaping utilised in that development, are each appropriate for, and harmonise with, the bushland character of the area in which the development is to take place.

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

(f) To ensure that non-residential land uses are compatible with the residential character of the area in which development is proposed.

6.8 Zone: Environmental Protection (EP)

(a) To protect environmentally sensitive land and areas of high scenic value in the City from development.

(b) To provide a buffer around areas of natural ecological significance.

(c) To restrict development on land that is inappropriate by reason of physical characteristics or high bushfire hazard.

(d) To encourage the restoration of disturbed bushland areas.

22. Overlying parts of the area are a number of Protected Area designations

7.2 Environmental Constraint Area

(a) To protect environmentally sensitive land and areas of high scenic value in the City.

(b) To provide a buffer around areas of ecological significance.

(c) To restrict development on land that is inappropriate by reason of its physical characteristics or bushfire risk.

7.3 Escarpment Area

(a) To preserve and enhance the natural environmental and visual significance of the escarpment system of the Blue Mountains.

(b) To limit the presence of buildings and works in the escarpment area and to limit the impact of buildings on the perception of the escarpment as a significant natural feature.

(c) To limit the proportion of hard surfaces in the escarpment area and to provide for the restoration of all degraded areas and their return to a natural habitat.

7.4 Land Between Towns

(a) To ensure the conservation of the natural bushland character of land designated as Land Between Towns on the Map.

(b) To utilise the indigenous bushland as an important feature of development on land designated as Land Between Towns on the Map and to minimise the removal of vegetation on that land.

(c) To minimise traffic generating uses along Classified Roads.

(d) To minimise the visibility of development.

23. Clause 9 of LEP 1991 provides for the General Control of Development. Sub clause 9.3 requires that the consent authority be satisfied that the objectives of the plan (cl 3.1) and the objectives of the relevant zones are complied with before consent can be granted

9.3 Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council has considered the objectives of this plan and the objectives of the zone and of any protected area in which the land is situated, and is of the opinion that the carrying out of the development complies with the objectives that are relevant to that development.

24. Clause 10 provides General Development Criteria. While all elements of cl10 are applicable, some elements are particularly relevant.

Subclause 10.8 discusses provision of services

(a) The Council shall not consent to development unless it is satisfied that adequate arrangements can be made for drainage, the provision of power supply, water supply or water storage, and the disposal of effluent. The Council shall take account of the requirements of the Water Board where the area is serviced by the Board.

25. None of the 3PDAs is serviced by a reticulated water supply, or has access to a reticulated sewerage system, and there are no plans to provide the services. None of the PDAs has an electricity supply. Mr Kirwan informed the Court that it would be possible to provide electricity through cables within conduits situated adjacent in the proposed access tracks, but it was not currently anticipated that mains power would be supplied and that electricity would be generated by solar panels, with battery storage. Mr Kirwan advised that other options for supply might also be explored. Council in its assessment did not raise concerns about the power supply.

26. In the absence of reticulated sewerage, subclauses 10.8 (f) and (h) apply

(f) The Council shall not consent to any development that requires effluent disposal, unless:

(i) the development is to be connected to a reticulated sewerage system, or

(ii) the Council is satisfied by means of a geotechnical and water balance report that the effluent may be effectively disposed of on that part of the site on which the development is permissible.

This paragraph does not apply to subdivision of land in the Residential Bushland Conservation zone.

(h) For the purpose of this clause, "geotechnical and water balance report" means a report which contains sufficient technical data to meet the requirements specified in any Development Control Plan that shows guidelines for the disposal of waste waters by land application, that includes consideration of:

(i) the waste water treatment system, and

(ii) site selection criteria,

and that demonstrates that the development site is capable of the disposal of effluent without adversely affecting bushland, watercourses, ground water, adjacent land, or environmentally sensitive areas.

Waste water treatment from the proposed dwellings on the three lots are proposed will utilise Ecomax amended onsite effluent treatment systems.

27. Controls on site coverage by development are specified by subclause 10.9

10.9 Site Coverage

(a) The Council shall not consent to development (other than development for the purpose of agriculture in the Megalong Valley) on any land zoned Rural Conservation, Bushland Conservation, Residential Bushland Conservation or Residential Investigation, if the total building site cover resulting from carrying out the development, including any part of the site covered by buildings ancillary to a main building (such as tennis courts, swimming pools, sheds and the like) exceeds the total building site cover specified in the following Table:

Notional development area of the Lot	Total Building Site Cover
Less than 1,000m2	160m2 or 40% of the notional development area, up to a maximum of 300m2, whichever is the greater
1,000m2 or more but less than 2,000m2	300m2 plus 10% of any amount by which the notional development area exceeds 1,000 m2
2,000m2 or more	400m2 plus 5% of any amount by which the notional development area exceeds 2,000m2, up to a maximum total building site cover of 2,500m2

(b) Certain development on any lot consisting of or including land having an area of more than 4,000 m 2 zoned Bushland Conservation, Residential Bushland Conservation or Residential Investigation must take place within a Principal Development Area, as required by clause 30 and the Table to that clause.

The areas of each of the lots well exceed 2000 m², and all the proposals would be compliant with this clause.

28. Control on the size of principal development areas (PDA) is established by clause 30.

30 Principal Development Area

30.1 This clause applies to any lot consisting of or including land having an area of more than 4,000 m 2 zoned Bushland Conservation, Residential Bushland Conservation or Residential Investigation.

30.2 No development shall take place on a lot to which this clause applies unless:

(a) in the case of a lot created in accordance with clause 34.1 (c), the development takes place within a Principal Development Area, except where that development is:

(i) subdivision or development ancillary to subdivision, or

(ii) for the purpose of providing access or public utility services,

(b) in the case of a lot created otherwise than in accordance with clause 34.1 (c), the development takes place in a Principal Development Area, except where that development is:

(i) for the purpose of bushfire hazard reduction, or

(ii) ancillary or incidental to a dwelling house which was in existence at 27 December 1991, but only if any clearing of vegetation that is involved is not located on any development excluded land and is carried out on an area of less than 50 m 2, and the total area cleared outside the Principal Development Area does not involve more than 5% of the notional development area of the lot, or

(iii) for the purpose of providing access or public utility services, or

(iv) subdivision or development ancillary to subdivision.

30.3 A Principal Development Area shall:

(a) have a maximum total area, to be determined with regard to the notional development area of the lot, as specified in the Table to this clause, and

(b) subject to clause 30.4, not include any development excluded land, and

(c) have boundary setbacks of at least 15 metres, where the width of the lot at the building line is 50 metres or more, or boundary setbacks of least 10 metres, where the width of the lot at the building line is less than 50 metres, and

(d) be located to the Council’s satisfaction.

Table

Notional development area of the Lot	Maximum Total Area of Principal Development Area (applies to land described in clause 30.1)
Less than 2,000m2	750m2 or the notional development area, whichever is the greater
2,000 m2 or more	2,000m2 or 25% of the notional development area, up to a maximum of 5,000 m2, whichever is the greater

30.4 Clause 30.3 (b) shall not apply to a Principal Development Area within any lot where the part of the lot that is not development excluded land, and that is so configured as to be capable of being the site of a dwelling house, and of accommodating development ordinarily ancillary or incidental to a dwelling house, has a total area of less than 750 m 2, but in that event the Principal Development Area shall include the minimum practicable amount of development excluded land and in no event shall the amount of development excluded land within a Principal Development Area exceed 750 square metres.

30.5 The Council shall not consent to development on a lot to which this clause applies unless it is or will be screened from view from outside the lot either by:

(a) the retention of existing vegetation, within the lot, or

(b) the planting of indigenous vegetation within the lot which will achieve such screening within a time frame considered by the Council to be reasonable.

29. The proposals are for the construction of single dwellings on each of the lots, so that clause 21 is satisfied

21 Dwelling house

(a) Where a dwelling house is permissible under the Plan, no more than one dwelling house may be erected on a lot.

(b) A person may, with the consent of the Council, erect a second dwelling house on a lot where a dwelling house already exists, provided that the new dwelling house is intended to wholly replace the existing dwelling house.

30. The Development Control plan applicable to Blue Mountains LEP 1991 is the Blue Mountains Better Living Development Control Plan.

31. The Blue Mountains Local Environmental Plan 2015 came into force on 15 February 2016.

The aims of LEP 2015 are:

1.2 Aims of Plan

(1) This Plan aims to make local environmental planning provisions for land in the Blue Mountains in accordance with the relevant standard environmental planning instrument under section 33A of the Act.

(2) The particular aims of this Plan are as follows:

(a) to maintain the unique identity and values of the “City within a World Heritage National Park”,

(b) to provide a clear framework for the development of land that is consistent with, and promotes the principles and practices of, ecologically sustainable development,

(c) to meet the needs of residents, visitors and the business community through the provision of an appropriate balance of land uses and built forms,

(d) to ensure that development does not result in adverse impacts on the values of the Greater Blue Mountains World Heritage Area,

(e) to conserve and enhance, for current and future generations, the ecological integrity, environmental heritage and environmental significance of the Blue Mountains,

(f) to identify and conserve the distinct Aboriginal and European cultural heritage of the built forms and landscapes of the Blue Mountains,

(g) to preserve and enhance watercourses, groundwater, riparian habitats, wetlands and water quality within the Blue Mountains, the Hawkesbury-Nepean River catchment and Sydney’s drinking water catchments,

(h) to prescribe limits to urban development having regard to the potential impacts of development on the natural environment and the provision, capacity and management of infrastructure,

(i) to limit exposure to bush fire hazards and to ensure that development of bush fire prone land incorporates effective measures that protect human life, property and highly valued environmental and other assets from bush fire, without unacceptable environmental impacts,

(j) to identify and retain the diverse built and landscape elements that contribute to the character and image of the Blue Mountains,

(k) to promote the provision of accessible, diverse and affordable housing options to cater for the changing housing needs of the community,

(l) to ensure that the social needs of existing and future residents are met through the provision of appropriate community facilities, open space and services,

(m) to provide sustainable employment opportunities and strengthen the local economic base by encouraging a range of enterprises, including tourism, which respond to lifestyle choices, emerging markets and changes in technology, while protecting local amenity, character and environmental values,

(n) to conserve the rural and natural landscape of Megalong Valley, the Mounts, Sun Valley and Shipley Plateau and maintain agricultural capability,

(o) to ensure that the siting and design of new buildings, facilities and structures intended primarily for public use make reasonable provision for safe and comfortable access to those buildings, facilities and structures for all people, including older people, people with a disability and those with limited mobility,

(p) to integrate development with transport systems and promote safe and sustainable access opportunities, including public transport initiatives, walking and cycling.

Importantly the saving provision relating to development applications is provided by clause 1.8 A

1.8A Savings provision relating to development applications

If a 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.

Note.

However, under Division 4B of Part 3 of the Act, a development application may be made for consent to carry out development that may only be carried out if the environmental planning instrument applying to the relevant development is appropriately amended or if a new instrument, including an appropriate principal environmental planning instrument, is made, and the consent authority may consider the application. The Division requires public notice of the development application and the draft environmental planning instrument allowing the development at the same time, or as closely together as is practicable

It will be necessary to consider this provision in some detail.

32. The zoning map for LEP 2015 covering the 3 lots is Exhibit 15.The relevant zones applying to the proposals under Blue Mountains LEP 2015 are:

●    Zone E2 Environmental Conservation

1 Objectives of zone

• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

• To encourage land restoration works on disturbed bushland areas.

• To restrict the development of private land that would be inappropriate because of physical characteristics or high bush fire hazards, but only where less restricted development is permitted elsewhere on the land due to split zoning.

• To maintain biodiversity in the Blue Mountains.

2 Permitted without consent

Environmental protection works; Home occupations

3 Permitted with consent

Dwelling houses; Environmental facilities; Flood mitigation works; Roads

Note.

See clause 6.25 for development standards applying to dwelling houses in Zone E2 Environmental Conservation.

4 Prohibited

Business premises; Hotel or motel accommodation; Industries; Multi dwelling housing; Recreation facilities (major); Residential flat buildings; Restricted premises; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3

• zone E3 Environmental Management

Zone E3 Environmental Management

1 Objectives of zone

• 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 protect the natural bushland buffer between towns, to avoid ribbon development and to conserve vistas of bushland obtained from public places and the Blue Mountains National Park.

• To ensure that the form and siting of buildings, colours, landscaping and building materials are appropriate for, and harmonise with, the bushland character of the area.

• To encourage landscaping and regeneration of natural bushland in areas with sparse tree or canopy cover.

2 Permitted without consent

Environmental protection works; Home businesses; Home occupations

3 Permitted with consent

Animal boarding or training establishments; Bed and breakfast accommodation; Bee keeping; Building identification signs; Business identification signs; Camping grounds; Child care centres; Community facilities; Dwelling houses; Eco-tourist facilities; Educational establishments; Emergency services facilities; Environmental facilities; Farm stay accommodation; Flood mitigation works; Home-based child care; Home industries; Horticulture; Hotel or motel accommodation; Information and education facilities; Kiosks; Places of public worship; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Research stations; Respite day care centres; Roads; Secondary dwellings; Veterinary hospitals; Water storage facilities

4 Prohibited

Industries; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3

Part of the track which would be upgraded to provide access to the Lots 207 and 208 is within zone E3

●   Zone E4 Environmental Living

1 Objectives of zone

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To preserve and re-establish native bushland in those areas that exhibit a predominantly bushland character, where consistent with the protection of assets from bush fire.

• To ensure that the form and siting of buildings are appropriate for, and harmonise with, the bushland character of the locality.

2 Permitted without consent

Environmental protection works; Home businesses; Home occupations

3 Permitted with consent

Bed and breakfast accommodation; Bee keeping; Building identification signs; Business identification signs; Dwelling houses; Eco-tourist facilities; Emergency services facilities; Environmental facilities; Flood mitigation works; Home-based child care; Recreation areas; Roads; Secondary dwellings; Water storage facilities

4 Prohibited

Industries; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3

The hearing.

33. The subsequent hearing on 20 February 2017 commenced on site at the entrance to the access handle to Lot 41. MGANL was represented by Mr N Kirwan and the Council by Mr A Seton. A number of council officers, and council's consultant planner, Mr Turrisi, were in attendance. Four objectors (Ms Langdon, Mr Jarman, Mr Mulvey and Mr Mathew; Mr Kozelj had been scheduled to speak but was not present, however I have read and considered his written submission) spoke to the issues relating to one or more of the development applications. Ms Langdon represented the Blue Mountains Conservation Society (BMCS). The Society had made previous extensive written submissions and Ms Langdon provided a written update to these. This additional submission, and notes on the presentations from all the objectors taken by Mr Seton, were subsequently tendered as Exhibit 1. In addition to their own points, the three other objectors who spoke stated that they endorsed the submissions by BMCS.

34. After hearing from the objectors, an inspection of the PDA and access track on Lot 41 took place. One of the objectors, Mr Mulvey, was present. Mr Mulvey is a resident of Pulpit Hill Road, and his house is close to the boundary with Lot 41 in the vicinity of the proposed building. Mr Mulvey emphasised the proximity of his house to the proposed building and explained his concerns about privacy.

35. Lots 207 and 208 were accessed along the track extending beyond the end of the sealed pulpit Hill Road. The changes to the location of the PDA of Lot 208 and the Ecomax mound, adopted as a result of discussion between Mr Pepper and Ms Friedewald to minimise potential environmental impacts, were explained.

36. At the conclusion of the on-site phase, Mr Kirwan provided the Court and Mr Seton with copies of the latest versions of the VMPs, Erosion and Sediment Control Plans and engineering drawings for the three applications and a number of other documents. All of these were subsequently tendered as exhibits.

37. Given that the experts in their joint reports had resolved the contentions relating to their fields of expertise, it was agreed that the experts were not required in Court.

38. Included in the documents provided by Mr Kirwan was a letter to him from Mr Grant Austin of Blue Mountains Geological and Environmental Services Pty Ltd, dated 15 February 2017 regarding amendments to the report for on-site effluent management on Lot 208 (Exhibit L).

39. The letter was prepared in ‘direct response to the requirements of Ms D Friedewald of Blue Mountains City Council’; Changes to the location of the dwelling house on the lot necessitated changes to the location of the septic tank and the Ecomax amended soil mound. There had been a meeting and geotechnical investigation undertaken on 14 February 2017 relating to the final location of the proposed Ecomax mound.

40. Mr Austin had concerns that meeting Ms Friedewald's requirement could compromise the performance of the Ecomound. In order that the Court could understand the basis for the disagreement, it was agreed at the commencement of the second day, at the hearing in Court, to conduct a telephone conference with Ms Friedewald.

41. During this conference, modifications to the proposed vegetation planting downslope of the Ecomax mound were agreed and changes were made to the proposed draft conditions of consent.

42. Ms Friedewald, on the basis of her knowledge of other Ecomax installations, expressed her confidence in the performance of the proposed Ecomax mounds at the three development sites.

43. The proceedings continued in conventional fashion with the tendering of exhibits by both parties and the identification of the relevant planning statutes which were applicable to the three proposals.

44. Mr Kirwan spoke briefly. He pointed out that the vegetation in the vicinity of the proposed developments had been subject to modification. Clearing for establishment of a pine plantation had occurred in the late 1970s. Pines had been planted in the area of Lots 207 and 208. In Lot 41 there had been some clearance but no pines had been planted. MGANL had, according to Mr Kirwan, existing use rights for forestry on its holdings; this was not contested by the Council.

45. The Council had prepared proposed without prejudice draft conditions of consent for the three proposals. Following discussion there was agreement on a number of minor changes to the draft conditions.

46. The experts having reached agreement, the Council's contentions had fallen away. The Council’s position was that it was not seeking consent orders, but it neither opposed nor supported the granting of consent and would leave the decisions to the Court

Concerns of the objectors

47. The Council assessment report (Exhibit 7 at folio 148) considered the written submissions made by objectors and concluded that, in relation to conservation and flora and fauna issues that they ‘had been assessed against the provisions and objectives of the LEP and the DCP and as discussed on page 40 of this Report, it is considered that the development will not have an adverse environmental impact.’ Other issues were considered not to be supported by evidence (aboriginal heritage), not within power (access to private land) or capable of being addressed by conditions (use of dwellings, APZs, access for fire fighting vehicles).

47. Notwithstanding council’s consideration of the submissions, in evaluating the applications I am required by s79C (1) of the EPA Act to make my own evaluation of the objectors’ submissions

48. The objectors, in their written submissions (Exhibits 1, 5 behind tab 14, 6) and orally on site, raised a number of concerns discussed below.

The nature of the proposal.

50. BMCS, and several of the individual objectors, expressed concerns about the nature of the proposed developments and aspects of the design of the residences.

51. These concerns were based on applications which MGANL had made some years previously for a meditation centre on the property, and more generally on how the new residences fitted within MGANL's operations. The objectors were worried the applications were a Trojan Horse which could lead to more intensive commercial use.

52. While these concerns were clearly strongly held, the Court must address the present applications and not history. I must assume that the applications have been made in good faith and that, if approved, the use of the buildings would be as dwelling houses, that being the use that would be approved.

53. However, any consent would run with the property, and possible future owners might not be aware of the conditions on usage. This can be addressed by imposing a condition requiring restrictions on the use of land be registered on the title of the land pursuant to s88E of the Conveyancing Act 1919, prior to issue of any occupation certificate. The s88E instrument would also contain a provision that it not be released or varied without the written consent of Blue Mountains City Council.

54. In regard to the nature of the buildings, concerns were expressed that the orientation of the long axis of all three residences was North – South. The buildings are proposed to have solar panels, and several of the objectors argued that an East - West orientation would be more efficient. The concern regarding the buildings themselves was that the plans showed only one door opening to the outside in each residence.

55. At no time did the Council raise any points related to these issues, and the objectors did not point me to any regulatory requirements that might apply.

Public access

56. BMCS pointed to the long history of use of the tracks on the Plateau by bush walkers and climbers, and to the long held interests of the Society in the conservation values of the Plateau. The Society expressed concern that the proposed developments might lead to restrictions on access. Currently access, on foot only, is obtained from the end of the publicly maintained section of Pulpit Hill Road.

57. The land to which the public currently has access is privately owned, and there is no right of access. It is entirely a matter for the landholder whether or not members of the public will continue to have access, and is not something which can be a requirement of consent

Lack of referral to the Commonwealth minister

58. BMCS pointed out that a number of species and an Endangered Ecological Community present in the area are listed on the schedules of the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) (EPBC Act), and that no referral of the proposals had been made to the Commonwealth Minister. (The EEC is the Temperate Highland Peat Swamp on Sandstone – this is equivalent in the Blue Mountains to the Blue Mountains Swamp, a Vulnerable Ecological Community listed under the Threatened Species Conservation Act 1995)

59. This may be so, but the Court has no role in regard to the EPBC Act – it cannot refer proposals to the Commonwealth; it cannot presume to stand in the shoes of the Minister and decide what the Minister might have decided had a referral been made. However, the listing of species and communities under the EPBC Act may be a matter for consideration as being within the public interest under s79C(1) (e) of the EPA Act.

Aboriginal Heritage

60. BMCS expressed concern about the adequacy of the assessment of Aboriginal heritage issues, not only in relation to archaeological material but also cultural heritage. Search of the Aboriginal Heritage Information Management System does not disclose any known archaeological records for the three lots (Exhibit 5 behind Tab 6). Absence of evidence is not necessarily evidence of absence, and if any archaeological material were newly discovered during development, there would be an obligation to report finds and assess their significance.

61. BMCS suggested that the Plateau was of cultural significance, and was a significant part of the cultural landscape enabling the movement of the Gundungurra People between the Coxs River Valley and the Blue Mountain Plateau and it remains an important cultural item.

62. The Society referred me to the judgement in Anderson v Ballina Shire Council [2006] NSWLEC 76 in which Cowdroy J at [140] found that a cultural heritage assessment conducted for the council "related primarily to archaeological matters and dealt fleetingly with cultural values attaching to the site" and at [142] "Section 79C required more than mere mention of the issue of Aboriginal cultural heritage. An evaluation appropriate to the significance of cultural heritage in the area did not take place".

63. Anderson provides support for the importance of assessment of Aboriginal cultural heritage in addition to the assessment of physical archaeological evidence. In Anderson the Applicants took action on behalf of the Numbahjing Clan within the Bundjalung Nation. The site proposed for the development of a cycleway included an Aboriginal massacre site. Cowdroy J had before him evidence of consultation between Aboriginal groups and that council (and that council’s consultant) which pointed to the site being of high cultural significance, but this material had not been properly evaluated and applied to the decision-making process

64. According to BMCS the Aboriginal importance of Radiata Plateau is well-known to both Aboriginal and non-indigenous residents of the Katoomba community. Reference was made to a publication for which full bibliographic details were not provided, nor quotations given. No submissions in relation to the applications from Aboriginal groups and individuals were identified to me. The lots do not contain, and are not included within, any area identified as an Aboriginal Place of Heritage Significance as defined in the dictionary of the Blue Mountains Local Environmental Plan 2015;

Aboriginal place of heritage significance means an area of land, the general location of which is identified in an Aboriginal heritage study adopted by the Council after public exhibition and that may be shown on the Heritage Map, that is:

(a) the site of one or more Aboriginal objects or a place that has the physical remains of pre-European occupation by, or is of contemporary significance to, the Aboriginal people. It may (but need not) include items and remnants of the occupation of the land by Aboriginal people, such as burial places, engraving sites, rock art, midden deposits, scarred and sacred trees and sharpening grooves, or

(b) a natural Aboriginal sacred site or other sacred feature. It includes natural features such as creeks or mountains of long-standing cultural significance, as well as initiation, ceremonial or story places or areas of more contemporary cultural significance.

Note.

The term may include (but is not limited to) places that are declared under section 84 of the National Parks and Wildlife Act 1974 to be Aboriginal places for the purposes of that Act.

65. While recognising the importance of Aboriginal cultural heritage, the information in the BMCS submission is not sufficient to establish that the lots are of high significance, or that the proposed developments would have adverse impacts on cultural heritage.

Bushfire issues.

66. The three PDAs occur within an acknowledged bushfire prone area. Concern was expressed about the potential environmental impacts of providing the necessary Asset Protection Zones for the dwellings and of the upgrading of tracks to a standard necessary to provide access for firefighting vehicles. The RFS has provided conditions necessary to meet the requirements laid down in the PBP 2006. The applications, in the form before the Court, had been amended to satisfy RFS requirements.

67. Several of the objectors also expressed concern about access from, and egress to, Pulpit Hill Road at the Great Western Highway, suggesting that in a major fire the community comprising the residents along Pulpit Hill Road might be trapped

68. Having observed the intersections I can appreciate the residents’ concerns. However the intersections are not part of the development proposals. The RFS in its report proposed conditions relevant to the proposed development areas and did not address the wider concerns of the local residents. The proposed developments would add to the local population, and so contribute to an increase in the size of the population which might be trying to evacuate the area during a fire, but even if the developments were not to proceed, the problems of the Great Western Highway intersections would still be present. Avenues other than these proceedings would need to be followed if the residents are to have any possible influence on the management of the intersections between a local council maintained road and a major transport artery.

Privacy

69. Several residents living in properties on the southern side of Pulpit Hill Road were concerned about the use of the access road to the proposed dwelling on Lot 41, with vehicle traffic being a source of disturbance, and occupation of the proposed dwelling having the potential to reduce privacy for residents. Several of the residents’ dwellings are set back a long way from Pulpit Hill Road, and are close to the rear boundary of the lots, and thus close to the proposed PDA. I can appreciate that, not having had a southern neighbour previously, the prospect of a dwelling relatively close to their boundary could give rise concerns. However, construction of a dwelling in the PDA on Lot 41 was permissible with consent in Blue Mountains LEP 1991, and continues to be so in Blue Mountains LEP 2015.

70. McClellan CJ in BGP Properties Ltd v Lake Macquarie City Council [2004] NSWLEC 399 observed:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

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

71. The proposed development on Lot 41 will potentially have some impact on neighbours, but this is an inevitable consequence of development and, unless what is proposed would cause disturbance at a higher level than what might ordinarily be expected, the disturbance and loss of privacy would not be sufficient to warrant refusal. To the extent possible within the APZ enhancement of the understorey is proposed in the VMP, and this will provide screening between the proposed dwelling and existing residences.

72. BGP is not to be read has an automatic green light to any development permitted by the zoning as explained by McClellan CJ in BGP

119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.

73. In the present matter the zoning of the PDA on Lot 41 was confirmed as recently as February 2016 when Blue Mountains LEP 2015 came into effect, so that this is not an example of an outdated LEP rendered inappropriate by changes in circumstances .

Adequacy of flora and fauna assessment

74. The BMCS was scathing in its assessment of the adequacy of the Flora and Flora studies reported in the Statements of Environmental Effects for the three proposals, prepared by Mr Chris Lonergan, planning consultant to MGANL.

75. The SEEs prepared by Mr Lonergan drew heavily upon an earlier (2007) Ecological Constraints Analysis and Flora and Fauna study prepared by Conacher Travers Environmental Consultants, in relation to an earlier (and different) development proposal. BMCS argued that the Conacher Travers study was flawed and out of date and, in regard to the SEEs, that the documentation of flora and fauna ‘contains brief, erroneous and generally fairly meaningless lists of the main plant species of three vegetation communities of Lots 41, 207, 208.’ The Society regarded the recognition of only three community types as being an inadequate reflection of the plant community diversity across site I consider that this criticism is valid,

76. When it comes to fauna, the position is perhaps even more dire. In the discussion of wildlife the SEEs commences ‘The study area was traversed on foot, with fauna identified by tracks, scats, and visual sightings, as well as sightings by local residents’

77. There is no indication of the length of the traverses, what time of year they were conducted, whether they encompass both daytime and night time observations, or even who the observer was. The local residents who provided information are not identified. There is no indication that existing databases, such as the NSW Wildlife Atlas, were consulted.

78. The lists of species in each of the major groups (reptiles, amphibians, birds and mammals – there is no reference to invertebrates) are short. Some of the records listed, if true, would be of high significance – the sole amphibian reported, the Great Barred Frog, Mixophyes fasciolatus, is unlikely to be present, as is acknowledged by Mr Pepper (in Exhibit P). The bird list includes Torresian Crow, Corvus orru, a species of northern Australia. Several birds recorded are listed on the schedules of the Threatened Species Conservation Act, but this status is not acknowledged. A major group of ecologically important bird species, the honeyeaters, is completely absent from the list. For native mammals the only record is ‘Brush tailed possums, or various species of gliders’, with no indication of which species of glider, and even, by the wording, raising the possibility that possums are types of gliders!. There are no records of bats.

79. The record for Torresian Crow might be put down to a slip, where the intention was to refer to a southern species of Crow, but the absence of any records of honeyeaters is harder to explain.

80. The submissions from BMCS were first made some time ago, and I presume were available to MGANL. It is thus remarkable that even in the most recent iteration, the Amended Statement of Environmental Effects. Proposed Construction of a New Dwelling. .Lot 208 D.P 751657, No.28 Pulpit Hill Rd. Katoomba. Dated 15 February 2017, the species list remains unchanged (exhibit K).

81. There is no acknowledgement in the SEEs of the general significance of the biota of the Blue Mountains (reflected in the World Heritage status of areas not far from the Plateau), the recognition of the Plateau as being part of an important wildlife corridor, or of the long history of field natural history conducted in the area.

82. If the SEEs were the only source of available information on the Flora and Fauna of the area I would agree with BMCS that they provide an inadequate basis for assessment and this deficiency would be sufficient to warrant refusal of the applications.

83. However, MGANL commissioned a Flora and Fauna study of the area and preparation of Vegetation Management Plans (VMP) for the area surrounding each of the three proposed dwelling houses by Mr Pepper of SLR Global Environmental Solutions ( Exhibit P).

84. The preparation of the VMPs is acknowledged by Mr Lonergan in Exhibit K, but the other extra information included in the Flora and Fauna study did not make its way into the relevant sections of the SEE.

85. The Flora and Fauna Study and the VMPs, which the BMCS and other residents have not been privy to, go a long way to addressing concerns about the adequacy of information about flora and fauna

Environmental impacts

86. A major concern to BMCS was the potential for downslope impacts from flow of treated wastewater from the Ecomax treatment systems associated with each proposed dwelling house.

87. During the evolution of the proposals the siting and management of the Ecomax systems were the subject of considerable interaction between MGANL and the Council. This process continued up to the hearing, and the experts in their joint reports considered that Council’s contentions in relation to the Ecomax systems had been addressed.

The transition from LEP 1991 to LEP 2015

88. 87 The development applications were submitted to council when LEP 1991 was in force. However, a draft new LEP had been subject to public consultation, and was forwarded to the Minister about the same time as the development applications were submitted. The Minister made the plan in December 2015 and it came into effect in February 2016, well before the hearing.

89. 88    In determining a development application of the consent authority must take into consideration s79C (1) of the EPA Act

79C Evaluation

(1) Matters for consideration--general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

90. In these proceedings the Court is standing in the shoes of council and is thus the consent authority.

91. Section 79C (1) (a) (ii) requires that I take into consideration LEP2015, which is a proposed instrument that has been subject to public consultation.

90. There have been many matters before the Court in which the application of s79 C (1) (a)(ii) has arisen as an issue. The judgement in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289 has stood as the authority on this matter.

91. The first question that arises is whether or not the draft environmental planning instrument is ‘certain and imminent’. In the current matter there is reason no doubt that the draft LEP 2015 was ‘certain and imminent’ given that it is now in force.

92. In Terrace Tower Spigelman CJ discussed the weight that might be given to a proposed instrument

5 Mason P outlines the line of authority in the Land and Environment Court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its “certainty and imminence”. I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft.

6 Notwithstanding “certainty and imminence”, a consent authority may, of course, grant consent to a development which does not comply with the draft instrument. Different kinds of planning controls will be entitled to different levels of consideration and of weight in this respect.

95. These savings clause in the proposed instrument in Terrace Tower was differently worded from cl 1.8A in Blue Mountains LEP 2015. Clause 1.8A occurs in many, but not all, standard instrument LEPs.

96. The effect of the wording of cl 1.8A on the application of the approach adopted in Terrace Towers was discussed in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302. The Commissioner found

21The only interpretation of the savings clause, which I can accept on the evidence and submissions is that proposed by the applicant. It is simply illogical to adopt the legal reasoning of the Court of Appeal in Terrace Towers with respect to the savings clause under consideration in this case. The words, which underline the reasoning of the Court in Terrace Towers, "as if the Plan had been exhibited ", are purposively removed from cl1.8A of LEP 2012. Accordingly, it must follow that the prevailing planning instrument remains the LEP 2005 for this application by dint of the savings provision in cl1.8 A of LEP 2012. It also follows that LEP 2012 is not a relevant consideration under s 79C (1)(a) (i) and (ii) because I am directed to determine the application as if the Plan had not been commenced. I agree with the applicant that it has no legal status for this application. Despite that it is a consideration under s 79C (1) (e) as part of the public interest however, in accepting that I must have regard to the words in the savings provision in cl1.8A that removes it from consideration.

97. Alamdo was subsequently applied in a number of cases where new LEPs had an identically worded cl 1.8A.

98. However, in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC142, an appeal against a Commissioner's decision, Pepper J revisited the issue and held that the decision in Alamdo was wrong, and provided at [28] to [33] reasons for that conclusion. Additionally if the LEP in question (Willoughby LEP 2012) was not a proposed instrument to be considered under s79 (1) (a) (ii) it was, contrary to the conclusion in Amaldo, relevant to the public interest and thus was required to be considered under s79C (1) (e). Even if the new LEP was not a mandatory consideration under s79C, it is still a matter that the consent authority can have regard to (relying on Carstens v Pittwater Council [1999] NSWLEC 249).

99. Maygood was a decision of a judge of the Court on a question of law and, as it has not been appealed, it requires me, when considering development applications made under BMLEP 1991, when BMLEP 2015 commenced prior to determination, to give consideration to LEP 2015, in the manner that follows from Terrace Tower.

100. Section 79C(1)(a) does not prescribe the weight to be ascribed to the different factors. The weight applied will depend on the particular circumstances of each individual case. In Terrace Towers Spigelman CJ at [7] said

7 Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. The development proposed in this case, and the evidence of its significant implications for the area, may well be of a similar character insofar as the 1,000m² minimum gross floor space standard has the objective of protecting the existing retail hierarchy.

101. LEP 2015 has different implications for Lots 207 and 208 than it does for Lot 41.

102. Under LEP 2015 Lots 207 and 208 are included within Zone E2 Environmental Conservation. Dwelling houses are permitted with consent in Zone E2, but only if cl 6.25 (2)is satisfied

6.25   Dwelling houses on land in Zone E2

(1)  The objective of this clause is to permit development for the purpose of dwelling houses (including any ancillary development) on land in Zone E2 Environmental Conservation if the development is consistent with the environmental values of the land.

(2)  Despite any other provision of this Plan, development consent must not be granted to development for the purpose of a dwelling house (including any ancillary development) on land in Zone E2 Environmental Conservation unless the consent authority is satisfied that:

(a)  the development requires the clearing of vegetation of less than 50 square metres of land, in addition to any clearing required for the erection of a dwelling house or for the establishment of an asset protection zone, and

(b)  the development will be located within 10 metres of the boundary of the land in Zone E2 Environmental Conservation and a residential zone, Zone E3 Environmental Management or Zone E4 Environmental Living, and

(c)  the development is appropriately sited to provide an optimal site layout and is compatible with the environmental values of the land, and

(d)  the development complies with the objectives of Zone E2 Environmental Conservation and the adjoining zone.

(3) In this clause, ancillary development has the same meaning as in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

103. As the proposed developments require clearing of vegetation from more than 50sq metres and are more than 10 metres inside the boundary of Zone E2 it follows that, under LEP 2015 cl 6.25(2) (a) and (b) construction of dwelling houses on Lots 207 and 208 is prohibited.

104. Construction of dwellings on lots 207 and 208, even though permissible with consent under LEP 1991 would 'in a substantial way undermine' the objectives (Terrace Towers at [7]) of LEP 2015 for those lots. Considerable weight should be given to the provisions of LEP 2015. Construction of dwellings a considerable distance from the boundary of Zone E2 would undermine the objectives of the zone, such that I give determinative weight to the provision of LEP 2015 and must reject the development applications for Lots 207 and 208.

105. The argument above assumes that BMLEP 2015 was correctly made and that I have correctly interpreted cl 6.25. Mr Kirwan raised issues in regard to both matters.

106. MGANL had been aware of the public consultation phase for the draft LEP, and had made submissions. Mr Kirwan said that MGANL was surprised when LEP 2015 was made, as they had submitted that LEP 2015 was intended to be simply a translation of LEP 1991 into the standard instrument format and thus changes to the nomenclature of the zones were anticipated but not change to the provisions of permissibility within the zones. The change in what would be permissible in lots 207 and 208 was unanticipated.

107. I must assume that Blue Mountains LEP 2015 was correctly made and agree with the observation of Acting Senior Commissioner Brown in EMGA Mitchell McLennan Limited v Byron Shire Council [2015] NSWLEC 1498 at [52]

While Mr Mitchell maintains that the underlying rationale for the RU1 zoning is ill-founded, this is not a matter that can influence the consideration of this appeal. The Court must assume the zoning is appropriate and has a planning purpose. If a zoning is considered inappropriate, mechanisms to change the zoning are available in Division 4 of the EPA Act.

108. Mr Kirwan also argued that the PDAs on Lots 207 and 208 were chosen as those particular areas did not meet the criteria for the E2 zone. This was raised on site, where it received some support from Council officers. In the Council assessment for Lot 207 (Exhibit 7 folio 139) it is stated under 'Additional Information’

‘Lot 207 is wholly contained within the E2 zone under draft LEP 2013. A dwelling is not permissible in the zone.'

Consideration has been given to the proposed planning location on the site. A Flora and Fauna report prepared by SLR Global Environment Solutions dated 10 June 2016 has been submitted with the application. The report identifies that the proposed dwelling footprint does not contain any threatened species or significant vegetation. Further assessment and a site inspection by Council’s Landscape Assessment Officer concurred with the Flora and Fauna Report.

Consideration has also been given to the justification for zoning the site E2 under draft LEP 2013. When comparing the criteria used to classify E2 zone in LEP 2005 it is noted such criteria includes the evidence of significant vegetation, watercourses and associated buffers and land with slopes greater than 33%. The location of the proposed dwelling does not contain significant vegetation, is more than 200 m from a watercourse and is within an area of the site that has no slope constraint. .

It is therefore considered that the proposal complies with the environmental conservation objectives of the draft 2013 E2 zone, and the proposal will not have any significant adverse impacts.’

Similar wording with respect to Lot 208 appears that exhibit 7 Folio 180. Council's assessment report for all 3 lots (Exhibit 7 folio 100 -225) are dated 6 February 2017.

109. The PDA is within an area zoned E2 in Blue Mountains LEP 2015. I must assume that the LEP was correctly made, and that there is nothing in the plan which would give licence to carry out what would be a spot rezoning. If Council seeks to permit this, then it must seek to amend the plan.

110. The area of the Plateau zoned E2 in LEP 2015 would for the most part satisfy the criteria for that zoning. Within the larger area there will be small areas which would, in themselves, not satisfy the criteria, but rezoning these patches would give rise to potential management problems due to edge effects between patches with different zonings which compromise the integrity of those areas which satisfy all the necessary criteria for inclusion within the E2 zone. I am not satisfied that the approach suggested in the council’s assessment is desirable or practical.

Lot 41

111. Unlike the situation in Lots 207 and 208, the proposed development in Lot 41 remains permissible with consent. Under LEP 1991 lot 41 had split zoning, with the PDA situated in the Residential Bushland Conservation Zone. In LEP 2015 the PDA is within Zone E4 Environmental Living. The shapes of the Residential Bushland Conservation Zone and the Zone E4 on Lot 41 differ, (compare exhibits 14 and 15), but in both cases the PDA is totally within the zone.

112. The area in which the PDA is situated has been subject to past disturbance with underscrubbing and canopy thinning, but the flora still predominantly comprises native species.

113. In the original proposal the Ecomax mound was located to the south east of the dwelling, but in the final form of the proposal that is before the Court the mound is to the south west of the dwelling. This change was made primarily to place the mound further away from potentially sensitive downslope areas.

114. The joint expert reports all concluded that with appropriate conditions the proposal in the form before the Court would not have adverse environmental impacts and could be approved. Council at the hearing did not raise any contentions of incompatibility with the objectives of either LEP 1991 or LEP 2015 or the zone objectives.

115. The proposed conditions include requirements for long-term maintenance and management of the Ecomax system, the implementation of an approved vegetation management plan including maintenance of the inner and outer Asset Protection Zones and construction of the access track to meet RFS requirements.

116. Given the agreement of the experts and the conditions which are to be applied there is no reason not to grant consent.

Orders

In file 2016/00161014 the appeal is dismissed.

1. Development application X/611/2015 for the construction of a dwelling house and associate works on Lot 207 is refused.

In file 2016/00161520 the appeal is dismissed.

1. Development application X/612/2015 for the construction of a dwelling house and associate works on Lot 208 is refused.

In file 2016/00161070 the appeal is upheld.

1. Development application X/709/2015 for the construction of a dwelling house and associate works on Lot 41 is approved subject to the conditions in Annexure "A".

2. The Exhibits other than A, B, C, D and 2 are returned.

________________

Paul Adam

Acting Commissioner of the Court

161070.16 Annexure A (C) (101 KB, pdf)

Decision last updated: 15 March 2017