Malnic v Northern Beaches Council

[2016] NSWLEC 1353

Land and Environment Court

New South Wales

Medium Neutral Citation:	Malnic v Northern Beaches Council [2016] NSWLEC 1353
Hearing dates:	4 and 5 May 2016, 8 June 2016
Date of orders:	24 August 2016
Decision date:	24 August 2016
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is upheld. 2. DA 2015/0556 for a 3 lot subdivision at 145-147 Booralie Road, Duffys Forest is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits A, C, E, M and 2, are returned.
Catchwords:	DEVELOPMENT APPLICATION – subdivision; environmental impacts; ecological impacts; threatened ecological communities (TECs), ecologically endangered communities (EECs); vulnerable species, Coastal Upland Swamp; Tetratheca glandulosa; Pimelea curviflora; Pseudophryne australis (Red-crowned toadlet); EPBC considerations; conservation reserve, s88B instrument; s88B covenants; bushfire risk; public interest; contested conditions of approval
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Threatened Species Conservation Act 1995 Environment Protection and Biodiversity Conservation Act 1999 Water Management Act 2000 Rural Fires Act 1997 Conveyancing Act 1919 Warringah Local Environmental Plan 2011
Cases Cited:	Project Venture Management Pty Ltd v Warringah Shire Council & Anor [2006] NSWLEC754
Category:	Principal judgment
Parties:	Julian and Diane Malnic (Applicants) Northern Beaches Council (Respondent)
Representation:	Counsel: Mr T Howard (Applicant)   Solicitors: Mr T Sattler, Sattler & Associates (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2016/00159537

Judgment

1. COMMISSIONER: This is an appeal under s 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by then Warringah (now Northern Beaches) Council of a development application for the proposed subdivision of two existing lots into three new lots on land known as 145-147 Booralie Road, Duffys Forest.

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

3. Specifically, and with reference to both the Threatened Species Conservation Act 1995 and the Environment Protection and Biodiversity Conservation Act 1999, the site contains and adjoins an ecologically endangered community (EEC) in the form of a Coastal Upland Swamp (CUS) and two floral threatened ecological communities (TECs): namely Tetratheca glandulosa (Tetratheca) and Pimelea curviflora (Pimelea). The area is also known to be the habitat of the Red-crowned toadlet (Pseudophryne australis) which is listed as a vulnerable species under the Threatened Species Conservation Act 1995.

Background to the application

4. Development Application (DA) 2015/0556 was lodged with then Warringah Council (the Council) on 23 June 2015.

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

6. The proposal is integrated development pursuant to section 91 of the EPA Act given a Bushfire Safety Authority is required from the NSW Rural Fire Service (RFS) under Section 100B of the Rural Fires Act 1997.

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

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

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

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

11. Condition 5 of the 2006 Court consent stated as follows:

All native vegetation outside of the Asset Protection Zones as marked on the Proposed Subdivision Plan within each of the lots in the subdivision, other than the lot to be dedicated, is to be retained, conserved, rehabilitated and managed in accordance with the Environmental Site Management Plan, referred to in Condition 8 as the ESMP, at all times and in perpetuity.

12. The Council argued that the location of the building footprint for approved Lot 2 was determined as part of the 2006 Court consent to ensure environmental features were not unreasonably impacted upon and APZs for the future dwelling on approved Lot 2 were located as far as possible from the conservation areas and the Ku-ring-gai Chase National Park (KCNP).

13. The proposed subdivision, if approved, would have the effect of adding a new dwelling footprint within the boundaries of approved Lot 2, but would also extinguish the currently approved dwelling footprint on that lot. The section 88B and 88E covenants would need to be amended to facilitate this.

14. The proposed subdivision would also require certain aspects of the Instrument to be modified to enable part of the proposed APZ to extend into an area on approved Lot 2 previously identified as a Conservation Area.

15. The Council referred the proposal to the NSW Rural Fire Service (RFS) including the amended plans which arose during conciliation. The RFS responded to the proposal as will be discussed later.

16. The Council refused the application in September 2015.

17. The appeal was the subject of protracted conciliation under s34 of the Land and Environment Court Act 1979 as the applicant sought to address the issues raised by the Council. Prior to and during the conciliation conference, amended plans were prepared by the applicant in response to issues raised by the Council.

18. Arising from the conciliation, the applicant reconsidered aspects of the development, in particular the boundaries between the three lots and the proposed location of accessways, development envelopes and effluent disposal systems.

19. In terms of the effluent disposal system, the objective was to achieve at least a 40m separation from the CUS. The applicant also liaised with the RFS to ascertain the appropriate classification of vegetation on the site in order to determine the appropriate bushfire planning requirements.

20. The Council was reluctant to release or amend the 88B Instrument or to consider relocation of the area to which it applied arguing that the location of the development envelope for approved Lot 2 was a critical part of the Court consent and indicating that there was inadequate assessment of flora and fauna impacts; particularly in terms of the required buffers, location, extent, nature, boundaries and significance of the EECs and TECs across the site.

21. Arising from the conciliation, it was agreed that a Waterways Impact Statement addressing stormwater disposal would be prepared by the applicant once the experts agreed on the extent and significance of the CUS. Additional flora surveys were also undertaken, bushfire report updated, and a revised proposal prepared based on the additional work undertaken.

22. On April 27, 2016 the Court granted leave for the applicant to rely on the revised proposal (Revision D plan) as well as the accompanying supplementary bushfire protection and ecological assessments. The Revision D plan showed development areas away from the CUS, increased APZs, and amended but still compliant lot areas.

23. Specifically, the proposal as reflected in the Revision D plan:

• Retains Lot 258 as Lot 1 at 2.064ha being the developed portion of the site containing the existing dwelling fronting Booralie Road. No new works are proposed for proposed Lot 1 other than to provide for a new emergency fire access road for proposed Lots 2 and 3;

• Relocates Lot 2 at 2.0ha to the south eastern rear portion of the site south east of the existing approved location including relocation of its designated development envelope, effluent disposal area and APZs;

• Proposes a third lot (Lot 3) at 2.168ha with a designated development envelope, effluent disposal area and APZs at the southern central rear portion of the site west of proposed Lot 2;

• Modifies the 88B Instrument applying to approved Lot 2 in terms of the extent of the Conservation Area; and

• Proposes minor modification and extensions to the existing accessway/services corridor and creates a new emergency fire access road to Booralie Road adjoining the site's eastern boundary.

24. However, the Council remained concerned with the potential impacts of the subdivision and unconvinced that the 88B Instrument should be amended. The need for a potential EPBC referral was also raised given Tetratheca and Pimelea had been found on the site.

25. The parties agreed that objector issues raised on site at the commencement of the conciliation conference and matters heard and the site views undertaken as part of that conference could be considered as evidence should the matter proceed to a hearing.

26. As agreement could not be reached, the conciliation was terminated in March 2016 and the matter set down for hearing.

27. In April 2016 with the agreement of the applicant, the Council notified surrounding residents of the Revision D plans. I agreed to consider any submissions raised in response given the closing date for submissions was after the hearing date noting however, that weight given to any submissions would be limited as the applicant would not have the opportunity to respond to issues raised, which the Council accepted.

28. At a subsequent mention before me on June 8, the Council advised that they had notified the proposal to a wider area than the original DA referral and had received 7 submissions in response, including from the Terry Hills Progress Association who were a party to the 2005 Project Venture appeal.

29. All 7 submissions objected to any form of further subdivision of the site principally on environmental grounds and with reference to the conditions imposed by the 2006 Court consent. The Progress Association indicated that, should the Court approve the subdivision, the same conditions as were imposed on the 2006 Court consent should be similarly imposed.

30. At the June mention, a final revised plan (Revision E) was filed with the Court with the agreement of both parties. The Revision E plan largely reflected the Revision D plan as modified by a number of the proposed conditions. There were also a number of contested conditions between the parties. I required that the parties file by June 15, 2016 the agreed conditions and, with regard to any conditions which were not agreed, the basis for their respective positions and alternate conditions.

The Site and Locality

31. The site has a total area of 6.231 hectares and comprises two lots being Lot 2 (145 Booralie Road) and Lot 258 (147 Booralie Road) which are 3.185ha and 3.046ha respectively. A dwelling house occupied by the Malnics with associated pool and deck has been erected on Lot 258. Lot 2 is undeveloped although some clearing for a future dwelling house has been undertaken. It is referred to in following discussion as ‘approved Lot 2’ to distinguish it from ‘proposed Lot 2’ being the proposed Lot 2 the subject of the appeal.

32. The site is located at the western end of Booralie Road. It is adjoined to the west and south west by the Council reserve and the KCNP, to the east by a private residential property (143 Booralie Road), to the north by Booralie Road and a residential property opposite, and to the south across Barnes Creek by the balance of the lots approved under the 2006 Court consent. It has a south westerly aspect on the southern side of a ridge overlooking Cowan Creek.

33. Beyond the two approved development envelopes, the majority of the site is heavily vegetated with native vegetation particularly where it adjoins the KCNP. It contains a series of sandstone outcrops and a portion of CUS in its south western corner which extends into the Council reserve and the National Park. As previously indicated, this CUS is listed as an EEC under the EPBC Act.

34. Consistent with the approved development, the building footprint for approved Lot 2 and the APZs have been partially cleared.

35. The Metropolitan Local Aboriginal Land Council was engaged by the applicant to undertake a heritage assessment of the proposal and determined by survey that the site contained two rocks shelters that may be connected to Aboriginal cultural heritage. These shelters are not proposed to be disturbed by works associated with the development and, on this basis, the Land Council raised no objection to the development (Exhibit J).

Relevant Statutory Controls

36. Development of the site is subject to the provisions of the Warringah Local Environmental Plan 2011 (the LEP). Under the LEP, the site and adjoining privately owned lots are zoned Primary Production Small Lots RU4. The proposed subdivision is permissible in that zone and the proposed lot sizes meet the minimum 2 hectares required by the LEP.

37. The Council did not raise an issue with the lot sizes proposed or with the increased density of development from two lots to three, per se. The issue was whether or not development on the relocated Lot 2 and proposed new Lot 3 was acceptable given the environmental and bushfire constraints.

38. Development of the site is subject also to the provisions of the Warringah Development Control Plan 2011 (the DCP).

39. Also of relevance to the appeal is the range of legislation which applies to the application given the environmental features of the site including: Threatened Species Conservation Act 1995 (the TSC Act), Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act), Water Management Act 2000, Rural Fires Act 1997 and the Conveyancing Act 1919.

Public submissions

40. The development application was notified to 11 adjoining landowners and occupiers in accordance with the requirements of the EPA Act and the DCP, with one submission of objection and one of support received.

41. During the conciliation conference, and at the subsequent hearing, the Court heard evidence from the objector, Ms Jacqui Marlow of Narabeen. Ms Marlow is a qualified ecological researcher who indicated she was passionate about the environment and was concerned about the loss of TECs and EECs Australia wide despite the EPBC Act which protects them. In terms of the proposal, she was concerned with the impact of vegetation loss on a sensitive site adjoining the KCNP. She advised that the Red-crowned toadlet had been seen in the area and was increasingly threatened by changes to water quality and quantity despite the best endeavours of the Council and others.

42. Ms Marlow noted that the CUS was Federally listed and advised the Court that it was very rare. Finally, she was concerned that the APZs would increase over time in response to weather changes.

43. The owners of the only immediately adjoining private property (to the east) at 143 Booralie Road supported the development including the amendments in the Revision D and E plans as evidenced by the letter comprising Exhibit K. This included the emergency access to Lot 3 adjoining their property boundary.

Experts

44. The Court heard or received a significant amount of expert evidence from a range of experts. For the applicant, evidence was provided by Mr Fleming (town planner), Dr Roberston, (ecologist), Mr Kingdom (arborist/ecologist), Mr Swain (bushfire consultant) and Mr Norris (engineer). For the Council, expert evidence was provided by Mr Milliken (town planner), Mr Mullins (ecologist), Mr Short (bushfire consultant) and Mr Fallowfield (engineer).

45. The expert ecologists and Mr Kingdom had met on site and discussed the issues relating to environmental impacts and impacts upon waterways. Their Joint Report (Exhibit 3) included a series of supporting documents which were referred to in evidence. Mr Mullins prepared the following documents:

1. An overlay of the site plan with ecological data and the area subject to the section 88B Instrument;

2. Photos of the new Lot 3 development footprint , access driveway and effluent disposal area;

3. Excerpts from a report by Conacher Travers in 2007, including Schedule 1.2, Fire Management Plan dated May 5, 2007: and

4. A plan showing the location of slopes greater than 18 degrees.

46. Dr Robertson had prepared the following, also attached to Exhibit 3:

1. photos of habitat features on the subject site and the location of threatened flora species.

2. a series of maps providing his assessment of the ecological impacts of the proposed development, and of approved Lot 2;

3. An assessment of significance for threatened species based upon Section 5A of the EPA Act, namely Tetratheca glandulosa, Pimelea curviflora and the CUS; and

4. An analysis of impacts to native vegetation generally as a result of the proposal, and an analysis of the potential impacts to the wildlife corridor that occurs to the south of the site.

47. Dr Robertson also provided a useful tabular summary of his assessment of the comparative analysis between the current approved subdivision and the proposed subdivision. This is reproduced below as modified and clarified in Dr Robertson’s evidence:

Comparative Analysis of Existing Approval and Proposed Approval

Current Approval	Proposed Approval
Development Footprint
House Footprint	0.07ha	0.12ha
Effluent Disposal Footprint	0.04ha	0.11ha
Access Driveway Footprint	N/A – can remove as no driveway approved or DA submitted	N/A – can remove as no driveway approved or DA submitted
S88B Conservation Area	1.7ha	2.09ha. This includes the previous Conservation Area now reduced as well as the area between the APZ and Barnes Creek in proposed Lot 2
Road Footprint	N/A – will use existing road, not part of the approved development	0.34ha
Total Footprint (including road)	0.11ha	0.97ha
Ecological Impacts
Impacts to Tetratheca	Some plants will be cleared. No significant impact	No verified occurrence of plants will be cleared. No significant impact
Impacts to Pimelea	All existing plants will be cleared	No verified occurrence of plants will be cleared. No significant impact
Impacts to Coastal Upland Swamp	No significant impact. But current dwelling and 50m upslope of swamp	No significant impact. Proposed dwellings and other components are approximately 50m from swamp
Impacts to Wildlife Corridor	Wildlife corridor maintained but no s88B covenant along Barnes Creek within Lot 258	Wildlife corridor maintained but potential for additional s88B covenant along frontage to Barnes Creek within proposed Lot 2.
Impacts to rock shelf habitat	Road access to approved dwelling will access rock shelf and sever shelf. No impacts to minor rock shelves on proposed Lot 3	Major rock shelves maintained along entry trail. Impacts to minor rock shelves in proposed Lot 3
Impacts to Forest and Woodland	0.11ha	0.30ha
Potential total s88B Conservation Area (ha)	N/A	Some areas can be added to the s88B area to make up for some of the area proposed for removal

Summary of Contentions

48. The grounds for the Council’s refusal can be summarised as follows:

1. Unsatisfactory environmental impacts

2. The need to protect waterways, in particular the CUS including from onsite effluent disposal

3. Bushfire risk

4. Public Interest

5. Insufficient information to make a thorough assessment.

49. A number of the Council’s concerns were resolved through the conciliation process by the preparation of the Revision D plan and provision of additional documentation and through ongoing dialogue between the experts.

50. Joint Reports were filed with the Court from the experts in the fields of town planning, ecology, bushfire risk and engineering, including stormwater and wastewater management.

51. The planning experts agreed that the Revision D proposal provided a lot layout compliant with the rural subdivision requirements of the LEP and that the nominal development areas designated satisfied the numerical requirements for the siting of a future dwelling, associated structures and the required construction zone.

52. The planners also agreed that, if other contentions were satisfied, these development areas would satisfy the objectives of the RU4 zone particularly in terms of maintaining the rural and scenic character of the land and impact on views to and from the KCNP.

53. The planners did not agree that two new dwellings and associated structures, including the vegetation clearing required for them as well as the clearing for the new access roads and for the APZs, would provide for a less intrusive outcome than that contemplated by the indicative building footprint for existing Lot 2 and the established dwelling on 145 Booralie Road.

54. The engineers agreed that all Council contentions had now been, or could be, resolved. In particular,

1. The amended location for the effluent management area for proposed Lot 3 no longer bordered the CUS and was unlikely to detrimentally impact waterways or riparian lands irrespective of the mapping in the DCP;

2. Effluent and stormwater disposal systems will now be positioned and include adequate controls to ensure indirect impacts on the CUS are reasonably mitigated; and

3. The amended designs mitigate the potential hydrological and water quality concerns associated with the CUS or for Council’s reserve.

55. The engineers also agreed that the proposed systems would comply with the Council’s requirements and had been designed to achieve assimilation of nutrients subject to ongoing monitoring, maintenance and inspection protocols as provided by the Wastewater Management Plan prepared for the proposal.

56. It was noted that detailed design.of the stormwater and effluent disposal management systems would be required at the construction certificate stage and that subsequent DAs for future dwellings would need to address any issues identified and addressed within the submitted engineering assessment reports. This was a normal requirement for a development of this type.

57. The engineering experts did not make conclusions regarding possible ecological impacts resulting from the construction of the required infrastructure for the management of effluent and stormwater.

58. Finally, it was agreed by the parties that, should the subdivision be determined acceptable in terms of environmental impact and bushfire risk assessment, then the public interest issue would be addressed. Insufficient information was also no longer pressed by the Council as a ground for refusal.

59. The Council also conceded that the amended Revision D plan was a substantial improvement on the DA proposal. However, the Council was still not satisfied that there had been sufficient investigation of the TEC and EEC impacts noting that, at the time of the 2006 Court consent, the CUS was not a registered EEC so referral under the EPBC Act of the subdivision was not a consideration. Also, since the 2006 Court consent, another TEC plant, Pimelea curviflora, had been found on the site. The Council therefore considered that more extensive flora and fauna assessment was required.

60. The Council also suggested that the Court should not rely on the RFS support of the application but needed to be satisfied of the acceptability of the proposal in terms of bushfire risk.

61. In response, Mr Howard argued that there was only one real issue remaining to be resolved, namely the ecological impact of the proposal, and the Court needed to satisfy itself in terms of answering the following question:

Is the proposed subdivision acceptable having regard to the ecology of the subject land and surrounding land, particularly having regard to the presence of the Endangered Ecological Community (EEC) known as the Coastal Upland Swamp; the vulnerable and endangered plant species Tetratheca glandulosa and Pimelea curviflora and other, non­endangered native vegetation communities?

62. Related to this question was the acceptability of modifying the s88B covenants and Instrument applying to the land. In this regard the applicant noted that the Court has the ability, as the Council had, to release, vary or modify any or all of the s88B covenants, the only question being whether such modification was appropriate given the merits of the proposal.

63. Mr Howard also argued that the issue of bushfire risk was no longer a central issue of concern having regard to the fact that the RFS was satisfied that the proposed subdivision is acceptable and has accordingly issued a section 100B Fire Safety Authority under the Rural Fires Act 1997. However, as the Council remained concerned with the potential bushfire risk, the only other question to be answered for the Court to be satisfied to grant consent was:

Is the proposed subdivision acceptable having regard to the risk of bushfire?

Environmental/Ecological Impacts

64. The Council’s view was that the development should be refused as it would result in unsatisfactory and unreasonable environmental impacts contrary to the aims of the LEP, the objectives of the zone and the objectives of parts of the DCP, in particular: Parts E2 Prescribed Vegetation, E4 Wildlife Corridors, E5 Native Vegetation, E6 Retaining unique environmental features, E7 Development on land adjoining public open space; and E8 Waterways and Riparian Lands.

65. The experts agreed that the key constraints to developing the site are the CUS, occurrences of TEC’s (Tetratheca and Pimelea), key wildlife habitats (the creek and the rock outcrops), and native vegetation.

66. Extensive expert evidence was provided to the Court on these issues. Given the technical nature of the information provided and the disagreement as to potential impacts, much of this evidence is reproduced in detail to accurately reflect the position of the parties as presented to the Court.

Requirements of the LEP

67. The following LEP objectives for the RU4 zone were considered by the Council to not be met by the proposal:

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

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

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

68. Initially the visual and terrain impact concerns related to the proposed accessway however, these issues were not subsequently pressed by the Council. However, the Council remained concerned about the impact of the proposed development on bushland, on the adjoining reserve and KCNP, and on the CUS. Furthermore, the Council considered that there had been inadequate information provided or assessment undertaken to demonstrate that the subdivision proposal even as amended would protect, conserve and manage biodiversity and the natural environment.

69. Even with the amendments proposed , the concerns of the Council remained as follows:

1. Construction of the access road will damage natural rock outcrops and require the removal of native vegetation (however, this issue was not pressed by the Council).

2. The locations of the developable areas will have unacceptable impacts upon native bushland and the CUS. In particular, the development footprint, APZ and effluent irrigation field within proposed Lot 3 will border the CUS which extends into the neighbouring Council reserve. The CUS is protected under the TSC Act and the EPBC Act. This impact has not been adequately addressed in the applicant's Flora and Fauna Assessment.

3. New lots with development footprints and associated APZs will be located within a Conservation Area protected under a Section 88B positive covenant (88B) which was approved by the Court.

4. The proposal does not protect and promote the recovery of threatened species, populations and endangered ecological communities and does not satisfy the objective to protect and enhance the habitat of plants, animals and vegetation communities with high conservation significance.

5. The proposal does not satisfy the objective to retain and enhance native vegetation and the ecological functions of a wildlife corridor. The Conservation Area, which will be disturbed by development works, lies within a wildlife corridor mapped in the DCP. A Species Impact Statement for the 2006 Court approved subdivision of Lot 446 Booralie Rd claimed these conservation areas were functioning as a wildlife corridor:

6. Native vegetation is not retained in parcels of a size, condition and configuration which will as far as possible enable plants and animals to survive in the long term.

7. The proposed development footprints and associated APZ works are primarily within the Conservation Area protected by the 88B covenant for Lot 2. The approved development footprint for Lot 2 has already been significantly modified by under-scrubbing and selective clearing. The proposal will therefore decrease the size and condition of the remaining bushland which is protected by the covenant. The Court approved building footprint and APZs for approved Lot 2 were designed to overcome many of the constraints of the site and the Conservation Area was intended to be preserved in perpetuity.

8. There are potential impacts on the CUS associated with changes in hydrology and natural flow regimes in terms of quantity, quality, timing, duration, flow paths and pollutant loads associated with the increased impervious surfaces of the road, dwelling and associated ancillary development (paving, etc), the removal of vegetation for the APZ, and close proximity of the wastewater disposal area of proposed Lot 3.

70. Whilst the Council acknowledged that areas of vegetation within the site had been modified in order to provide inner and outer APZs, concern remained that the bulk of the approved development would be located along the eastern and southern sections of the site. Moving Lot 2 meant that on-site disturbance will not be minimised and additional rock outcrops, remnant bushland and trees will be modified and removed as part of the lot’s relocation and the addition of Lot 3.

71. The Council contended that the applicant had not provided an adequate assessment of the CUS despite it being protected under the TSC Act, EPBC Act and Council's Protection of Waterway and Riparian Lands Policy 2009.

72. The applicant argued that the Development Areas had been reduced from the DA proposal and located in cleared areas where possible.

73. Mr Howard therefore queried that the proposed impacts were significant. He noted that the approved Lot 2 would still have significant tree retention and there would remain large areas of unmodified vegetation within the western extremities of the site adjoining the CUS as well as within the centre of the site. Further, the Council had acknowledged that this would allow for continued direct access from a westerly direction into the KCNP, as well as in an easterly direction into vegetated areas of Duffys Forest.

74. The applicant offered for the 88B covenant to be extended to cover all areas outside the Development Areas where Tetratheca or Pimiilea had been recorded on the most recent surveys.

75. I now consider each of the detailed environmental concerns of the Council based on the evidence provided to the Court.

Impacts on the local environment including the EEC

76. The ecologists agreed that the proposal will have local impacts on the natural environment.

77. Mr Mullins argued that there would be an impact on 1.65ha of the Conservation Area if land within the APZs was included based on the Revision D plan. He was concerned that the proximity of the APZ on proposed Lot 3 would adversely affect the EEC. While agreeing that the CUS will not be directly impacted, he considered that clearing in close proximity could affect the local climate causing the margins of the CUS to dry, thereby reducing the size of the community. He also argued that clearing in the APZ could result in weed establishment and changes to hydrological flow including nutrient rich water run-on into the CUS.

78. The EPBC Act Conservation Advice recommends a buffer zone around the EEC to protect it from threats. Mr Mullins agreed that moving the effluent disposal area and building envelopes away from the EEC were positive steps. However, the APZ for Lot 3 was still as close as 5m from the edge of the EEC and could result in vegetation being cleared in proximity to a greater portion of the CUS, thereby exposing a greater edge of the CUS to indirect impacts. It was acknowledged that the retained area subject to the 88B instrument around the CUS served as a buffer but this was being reduced on its eastern boundary.

79. Mr Mullins also argued that the building envelope and APZ for proposed Lot 3 contains intact native vegetation, while the building envelope and APZ for the approved Lot 2 had already been cleared and weeds established. Further clearing and soil deposition is required for the effluent disposal field and steep slopes at the effluent disposal site would also require terracing which is not likely to result in the retention of any native groundcover, and retained native trees and shrubs would be unlikely to cope with the nutrient loads and soil deposition. He therefore disagreed that all trees will be retained in the effluent disposal field in Lot 3.

80. In response, Dr Robertson believed that, on balance, the proposal satisfied the aims of the LEP. The two dwelling sites proposed to replace the approved dwelling site would be located far enough away from the CUS that it will not receive runoff or seepage from the new construction. It will also be managed uncleared and will not have an APZ imposed across it. He agreed that the EPBC Act Conservation Advice recommends a buffer zone around the EEC to protect it from threats. However, he disagreed that the proximity of the APZ to the CUS would significantly change the environment of this community. He acknowledged that, theoretically, the CUS could be threatened by changes to hydrological flow, clearing and changes to microclimate, however, in assessing the impacts of the current proposal, it was also important to consider the alternative. Under the approval, he contended the following would or currently does apply:

1. The existing unmade track delivers surface water flows and causes minor erosion washing downslope towards the CUS.

2. Vegetation has already been cleared and modified to the boundary of the 88B Conservation Area nearest to the CUS.

3. There is likely to be minimal additional clearing for the purposes of APZ creation close to the boundaries of the CUS.

4. Trees and shrubs upslope of the CUS through evapotranspiration help to dry it out. Clearance of such vegetation in the catchment of the CUS is thus likely to make more water available to the CUS. In the current proposal, the minimal clearing is likely to make minimal difference.

5. The CUS is currently in good condition with no weed invasion and a full complement of swamp plants. It has survived runoff from the unsealed track and clearance of vegetation upslope in association with the existing approved lot.

6. The major clearance of vegetation that would result from the proposal will occur where the track is extended to provide access to the two new homesites. This clearance would occur at least 15m from the nearest extremity of the swamp, and in areas that drain away from the CUS.

81. In summary, Dr Robertson did not believe that there would be a significant additional impact upon the CUS as a result of the proposed development. To demonstrate this, he prepared an assessment of significance following Part 5A of the EPA Act for the CUS and provided this to the Court. He also followed Commonwealth significance assessment guidelines and assessed impacts to the CUS using Commonwealth criteria. Both test results show that the proposal would not have a significant detrimental impact upon the CUS.

82. Dr Robertson did agree that that some clearing of relatively undisturbed vegetation would occur. However, when the ecological impacts of the existing approval and the current proposal are compared, there is only some 0.3ha of additional clearing. To balance this, the proposal would see conservation of the population of Pimelea which he argued would be entirely disturbed and removed if the approved development takes place. The proposal would also see retention of native vegetation on the western side of proposed Lot 2 and of rock outcrops along the road entrance to proposed Lot 3 and allow for extensions to the area Conservation Area currently protected by the 88B Instrument, including additional vegetation along Barnes Creek which is part of the nominated wildlife corridor.

Impact on Biodiversity

83. The experts agreed that the Biodiversity Management Plan (BMP) prepared for the proposal contains general actions to manage the natural environment, but did not include actions specifically to protect and manage the Tetratheca, Pimelea, Red-crowned Toadlet or CUS, nor fauna habitats, such as rock outcrops. It was agreed that the BMP should be updated to include specific management actions relating to these threatened species and key habitats, and that this be a condition of any approval.

84. The experts’ disagreements in terms of the impacts on the CUS have already been outlined. Mr Mullins was also concerned that part of the Conservation Area protected under the 88B covenant would be developed, including the APZ for Lots 2 (in part) and 3 which was contrary and incompatible to the conservation objectives of this area. He was concerned that the applicant’s proposed changes to the Conservation Area included the cleared and under-scrubbed portion of approved Lot 2 which also serves as an APZ for existing Lot 1, had been invaded by weeds, and was not contiguous with the remainder of the Conservation Area.

85. Mr Mullins disagreed that all the Pimelea on approved Lot 2 would necessarily be cleared but acknowledged that this would need to be carefully managed. The recent recording of this species for the first time on the site suggested to him that it could be elsewhere on the property. He felt that further surveys should be undertaken to determine its extent, so that the potential impact of the proposal on this species could be considered.

86. In summary, the applicant’s experts argued that the proposal adequately protects, conserves and manages representative and important areas of biodiversity on site in that it will retain Tetratheca, Pimelea, all of the area of the CUS and broad areas of rock outcrops. Furthermore, the 88B Conservation Area covering the CUS is retained and extended. Dr Robertson’s assessment had concluded that there would be no significant impact likely on threatened species. Mr Kingdom also noted that the largest tree identified on site was 20m in height and that there were no ‘habitat sites’ identified in any of the trees. As there were no habitat sites identified (with the exception of a single hollow at ground level in one tree), he considered that it was unlikely that these trees would have hollows that would be suitable for Ninox strenua (the Powerful Owl).

Impact on adjacent conservation areas

87. The experts agreed that the proposal was not likely to unreasonably impact upon the Ku-ring-gai Chase National Park. However, Mr Mullins had already expressed concern about the impact to the CUS which extends into the adjacent public reserve. He also believed that it would require the Council to more actively manage its asset, being the adjoining reserve, particularly in terms of weed management given the close proximity of proposed Lot 3, and the fact that there would now be no buffer between a private lot and the reserve.

88. Dr Robertson noted that the proposal retained native vegetation and habitats, such as rock outcrops that are adjacent to those in the KCNP, and would result in the conservation of the CUS which extends into public conservation land. He did not believe that the proposed development would result in an "unreasonable" impact upon these areas.

89. Finally, Mr Kingdom believed that the removal of 64 trees would be acceptable as there are many retained trees of similar species to those that are to be removed including in adjacent areas.

Impact from access roads and developable areas

90. Whilst the proposal will clear or modify some native vegetation and damage some rock outcrops, the experts agreed that attempts had been made to minimise the impact of the proposal on the environment, by avoiding rock shelves and remnant bushland, and locating the proposed Lot 2 footprint in a disturbed area. Also that these features are not likely to be unique to the site and are likely in the KCNP and adjoining Council reserve.

91. However, Mr Mullins argued that the footprint for approved Lot 2 is already disturbed and cleared whilst that for proposed Lot 3 is not. Furthermore, proposed Lot 3’s effluent field will impact on rock outcrops and remnant bushland as would the new access road leading from the fire trail east to proposed Lots 2 and 3. He also disagreed with the applicant’s assessment that only one tree will be removed along the new access track as photos of the alignment (Exhibit 3, Attachment 2) show numerous trees along the proposed access road.

92. Dr Robertson argued that the already approved development will sever the largest rock outcrop on the site and has potential to impact Tetratheca. It will also remove the known occurrence of Pimelea, which is rarer and less well represented in the locality than Tetratheca. By contrast, the majority of land now proposed for development has been previously disturbed.

93. Mr Kingdom argued that the proposed building footprints and effluent areas had been carefully located to minimise the impact on the site’s trees.

94. In terms of the access road, Dr Robertson noted that the road is largely already constructed. In his view, the proposed development will require less clearing and modification of rock outcrops than will be required for approved Lot 2. He accepted that some native vegetation will be cleared or modified but noted that there was no impact on TECs or the EEC and such clearing should be evaluated in the correct context as the vegetation proposed to be cleared is extremely abundant in the Sydney area and is well conserved as well as being represented in the KCNP.

Impact on s88B Conservation Area

95. The experts agree that the building envelope, effluent disposal field and APZ for proposed Lot 3, as well as a small portion of the APZ for proposed Lot 2, occur in the area currently protected by the 88B covenant.

96. The 88B Instrument would therefore need to be modified to amend the location and extent of the existing Conservation Area. Approximately 0.16 ha of proposed Lot 2 (APZ) and 0.89 ha of Lot 3 (development footprint and APZ) occur in the area protected under the instrument. A total of 1.05ha of the existing Conservation Area would therefore be lost to accommodate the proposal.

97. As previously indicated, the Council opposed any such changes to the 88B Instrument.

98. However, the proposal as amended will result in more area to be conserved under 88B than presently exists. It was suggested by Dr Robertson, and ultimately agreed, that the reconfigured Conservation Area would protect and conserve both areas where threatened plants had been located and additional vegetation along Barnes Creek which is part of the nominated wildlife corridor. By contrast, the approved development would impact upon a major rock outcrop and would impact significantly upon the threatened Pimelea and could also impact upon verified occurrences of Tetratheca.

99. On balance, the applicant argued that the modified 88B area proposed was supportable. It was larger than the existing area and would see protection of threatened flora species, the CUS, the wildlife corridor and areas of native vegetation.

EPBC Act Considerations

100. The experts agreed that the Flora and Fauna Assessment did not assess the impact of the proposal under the EPBC Act or address the potential impact of effluent disposal on the CUS EEC.

101. Mr Mullins believed the proposal should be referred to the Commonwealth under the EPBC Act as:

1. creating an APZ for proposed Lot 3 would reduce the extent of the EEC directly and indirectly; and

2. the proposal will clear vegetation and introduce new disturbances within proximity of the CUS that could modify or destroy abiotic factors necessary for the EEC's survival and result in weed invasion and chemical or pollutant transport.

102. Dr Robertson disagreed that referral was necessary. In deciding on a referral requirement, he argued that one should refer to and use the significant impact guidelines prepared by the Department of Environment. He had applied the specific test under those guidelines to determine the impacts upon the EEC and the results were provided in evidence as Appendix C to his report.

103. In Dr Robertson’s opinion, after application of the test, and when considering the impacts of the current approved development to the proposal, there is unlikely to be a significant impact on the CUS and there is no reason to refer the matter. In particular, the amended proposal ensures that the APZs are located outside the area set aside for the CUS, the effluent disposal areas for the proposed new dwellings have been relocated to be further from the boundary of the CUS and are no longer upslope of the swamp, and there is not likely to be a significant impact upon threatened flora or the EEC when following assessments under the EPA Act. Furthermore, Dr Robertson felt any clearing of trees that did occur in the APZs had the potential to marginally increase water availability to the CUS.

104. In summary, the applicant argued that EPBC referral was not required as the proposal would not have a significant impact on a matter of national environmental significance which is the only trigger for referral under the EPBC Act guidelines (Exhibit 7). Furthermore, it was noted that referral was an applicant not a consent authority responsibility based on the applicant’s self assessment of likely impact which determined that the impacts were not so significant as to require referral.

105. The Council accepted that the referral is an applicant responsibility and risk.

Impact on threatened plant species

106. The experts agreed that the threatened species, populations and ecological communities recorded on site during the Flora and Fauna Assessment and the experts’ joint conference are: Pseudophryne australis (Red-crowned Toadlet); Tetratheca glandulosa; Pimelea curviflora var curviflora and the Coastal Upland Swamp

107. The Council’s Threatened Species records for the site include two additional species: Ninox strenua (Powerful Owl) and Varanus rosenbergi (Rosenberg's Goanna).

108. The experts agreed that the proposal is not likely to significantly impact the Red-crowned Toadlet, Powerful Owl, Rosenberg's Goanna or Pimelea. It was also agreed that Pimelea is located in the APZ for approved Lot 2 but is not located in any of the proposed building envelopes or APZs.

109. Mr Mullins noted that Tetratheca was recorded at 5 locations on the site in a 2015 survey (the Conacher Travers survey), and 10 plants were found during the experts’ site inspection near the two northern most records on site but this inspection was outside the species flowering period. The Conacher Travers survey did not specify the numbers of plants recorded at each point, but states that each "clump" or point contains 1-15 plants. No plants were found at the 3 southern records during the experts’ site inspection. However, Mr Mullins noted that the species are difficult to detect in dense ground cover outside the flowering period.

110. Mr Mullins noted that the EPA Guidelines specify that surveys outside the flowering period cannot be relied upon to confirm the species presence of absence or population size.

111. Based on his explanation to the Court of how Tetratheca grows, cross pollinates and germinates, Mr Mullins considered the local occurrence of the population to be within the site boundary. He believed an assessment of the impact to the local population could only be conclusive following a survey in the appropriate season particularly in terms of the impact of proposed Lot 3.

112. Whilst Mr Mullins conceded it may be acceptable to clear some individual plants (depending on population size and genetic diversity of the individuals present), there is insufficient information on how many plants there are on which to determine if the removal of plants to create the access driveway and building envelope is likely to be significant on this species. He also believed that it would be possible to retain Pimelea within the approved Lot 2.

113. Dr Robertson showed in plan form as part of the Joint Report (Exhibit 3) where Tetratheca and Pimelea had been found on site. He noted that Tetratheca were originally found on site and reported by Conacher Travers in 2006. They were not relocated by Conacher in 2015. In 2016, plants were found near several of the points where they were found in 2006. He referred again to the fact that he had prepared an assessment of significance for the impacts to both plant species. He also felt it important to note that Tetratheca is listed as Vulnerable by the TSC Act, but was recently delisted by the Commonwealth as the plant is more abundant than first thought. He argued that this is notable because the plant only occurs in the Sydney region, nowhere else yet the Commonwealth was satisfied that it could be taken off the national threatened species list - presumably because it was adequately represented in conservation reserves including the KCNP.

114. Dr Robertson argued that plants within 1km should be regarded as part of a single population if located in a connected path of habitat and he showed graphically that there are numerous records of Tetratheca 500 metres from their recorded location on the site including in the KCNP. He noted that the proposed development will retain all of the occurrences of the species detected in 2016, and most of those detected in 2006 whereas the approved development would clear some of the past and present occurrences. Therefore, whilst the proposed development may impact upon and remove some individuals, the impacts of the proposal were arguably less than those of the approved footprint. Moreover, as the plant is well represented in the KCNP and elsewhere, the proposal would not put the local population (including the National Park population) at risk.

115. The applicant also argued that the 88B Conservation Area was augmented under the proposal to conserve the majority of recent and historic occurrences of Tetratheca and all known occurrences of Pimelea.

116. In terms of Pimelea, this plant is listed as Vulnerable by both the State and Commonwealth and occurs in more restricted habitats being not as well represented in Sydney National Parks. Current data suggests it is not located within the KCNP. The proposal retains and protects all of the known individuals of this species which, based upon a lack of recording in the KCNP, was agreed to be ‘a good thing’.

117. The applicant argued that, as the proposal would not have a significant impact upon Pimelea, it needed no Species Impact Statement. By contrast, a house on approved Lot 2 would likely have a significant impact and a Species Impact Statement would be required for any house application.

118. In summary, Mr Mullins was concerned that the proposal will remove one clump of Tetratheca to construct the access road to Lot 3 and another clump is within the building envelope for Lot 3. However, Dr Robertson argued that the proposed development will provide for retention of all of the verified occurrences of Tetratheca on the site but will clear one previously identified area of Tetratheca. However, this would not have a significant impact upon the species as the main area of habitat or potential habitat for the species will be retained, as will habitat for the Pimelea. Therefore, the proposed development adequately protected known occurrences of threatened plants.

Impacts on the wildlife corridor

119. The experts agreed that the proposal will retain some ecological function as a wildlife corridor if the development proceeds, given that the adjoining land comprises bushland.

120. However, Mr Mullins was concerned that the ecological function of the corridor will be altered and reduced by removing native vegetation and introducing houses and associated infrastructure. In particular, clearing to create the APZs for proposed Lots 2 and 3 would open up the understorey making it unsuitable for many species meaning the current suite of species that use the site as a corridor or habitat will be reduced and not enhanced.

121. By reference to plans in Exhibit 3, Dr Robertson argued the patchy nature of habitat within the Council-mapped wildlife corridor noting it includes a high proportion of cleared land. Nevertheless, he argued that parts of the corridor which occur on the site can be retained along Barnes Creek and are included in the proposed expanded Conservation Area. Whilst he agreed that some habitat will be cleared, he argued the corridor had limited value.

122. Dr Robertson asked the Court to appreciate that Duffys Forest is one of the Sydney suburbs best endowed with wildlife habitat and corridors as it is essentially enclosed by National Park and other conservation reserves. Therefore, wildlife has continuous movement across areas of bushland to the north, west and south of the site without the need for wildlife corridors. He therefore could not see which species of fauna would be heavily reliant for long term viability on the existing fragmented corridor along Barnes Creek given the enclosing National Park areas. Dr Robertson also argued that the proposal retains key areas of habitat that are currently acting as wildlife corridors. These include the rock outcrops along the existing track. In contrast, he contended, the approved development would sever the continuity of the largest rock outcrop on the site as well as remove occurrences of Pimelea.

123. In summary, Dr Robertson’s position was that ‘the small area’ of 0.3ha to be cleared in the corridor ‘comprises very common, very well conserved vegetation types from the Sydney region. The clearance of small areas of such vegetation, relative to the benefits of shifting the location of the proposed development away from the threatened plants, is not significant’.

Impact on Waterways (Coastal Upland Swamp)

124. A number of the issues raised by the Council in terms of the potential impact on the waterway (CUS) are the same as the issues raised in terms of overall environmental impacts.

125. In addition, the Council argued that the development did not satisfy Council Policy PL 740: Waterways: Protection of Waterways and Riparian Land Policy which requires a wetland buffer around the CUS of 100m. Also, under the EPBC Act, an adequate buffer is required to protect the EEC.

126. The ecological experts did agree that the discussions amongst the relevant experts had been listened to and the effluent disposal system for Lot 3 had been moved away from the CUS and from the border with the neighbouring Council reserve.

127. The applicant argued that most of the CUS was in the adjoining public reserve where it would be protected. Furthermore, the location of the Development Area for approved Lot 2 was as close if not closer than either of the proposed new Development Areas. More relevantly, the effluent disposal areas would now be further away from the CUS than was proposed for approved Lot 2 as demonstrated in Exhibit H, and would be down slope not upslope of the CUS. This would minimise water flow from the Development Areas to the CUS unlike what could occur with approved Lot 2. Therefore, all effluent systems were now a sustainable distance from the CUS.

128. Furthermore, Dr Robertson argued, vegetation to be cleared is not endangered and is extremely well conserved in the Sydney area and the impacts of the proposal must be considered in comparison to those of the approved footprint, which would have an effluent disposal area on the ridgetop close to Tetratheca and above the CUS. He therefore concluded that no significant impact is likely on the CUS/EEC.

Bushfire Risk

129. The Council argued that the proposed development should be refused as it presents an unacceptable bushfire risk.

130. It was agreed that the site is bushfire prone and exposed to significant bushfire risk. The Warringah Pittwater Bushfire Risk Management Plan 2010 identifies the site as having an Extreme fire rating of 1A, the highest risk category. As such, the experts also agreed that the precautionary principle should be followed ensuring that no new development (subdivision) is provided where it cannot meet requirements in the RFS document, Planning for Bushfire Protection, 2006 (PBP).

131. The Council was concerned that the combination of poor access, rugged topography, remote location and an inability to provide adequate access and egress or APZs presented an unacceptable bush fire risk to future occupants and fire fighters, even if the buildings were constructed in accordance with the strictest construction standards.

132. As previously outlined, a related Council concern was that the provision of APZs for the proposed building footprints requires clearing of significant native vegetation including within the 88B designated Conservation Area.

133. The RFS was provided with a Bushfire Assessment Report prepared by Conacher Consulting. A supplementary report prepared by Mr Swain reviewed the Conacher Report and expanded on it to address items that needed to be amended as a result of his site inspection.

134. Mr Swain advised that he had provided input into the amended subdivision layout using the precautionary principle in determining the location of the dwelling sites on proposed Lots 2 and 3 and in the provision of a primary and alternate emergency access link.

135. Mr Swain had inspected the site with the applicant and with a Mr Sheppard from the RFS to ‘ground truth’ the layout. The layout before the Court represented the results of this inspection.

136. Mr Swain advised the Court that the RFS accepted the contents of the Conacher Report, supplemented by the information in his report, as adequately addressing the requirements of the relevant legislation subsequently issued a Bushfire Safety Authority (BFSA) for the Revision D plan in March 2016.

137. Mr Short accepted that the Revision D plan was a significantly better alternative than previous options. However, it remained that the site is exposed to extreme bushfire risk. The area within and surrounding the site is characterised by long fingers of isolated ridge top development, surrounded by deep bush land valleys. Large tracts of contiguous bushland abut these areas to the north, west and south in the form of the KCNP, private bushland and bushland under the care, control and management of the Council.

138. Mr Short stated that the site is at the most exposed tip of an irregularly developed RU4 area that can be exposed to significant fire runs directly impacting the property. In Mr Short’s view, the configuration of these isolated "peninsulas" of urban development with extensive bushland interfaces gives rise to considerable bush fire exposure and management issues. The extreme bushfire risk is due to the nature of the topography and surrounding vegetation (including steep, densely vegetated slopes leading up to developed areas) and the orientation of the site.

129. Mr Short argued that PBP is built on the premise of using the assessment process to provide for the protection of human life (including fire fighters) and to minimise impacts on property, while having due regard to development potential, on-site amenity and protection of the environment. In his view, the proposal presented an unacceptable bushfire risk.

130. Mr Short claimed that the slope of the alternate access through proposed Lot 1 was unknown and tabled a plan (Attachment 2 to Exhibit 4) which showed a number of points where the slope is greater than 15 degrees where. PBP (p23) requires:

maximum grades for sealed roads do not exceed 15 degrees and not more than 10 degrees for unsealed roads.

141. Mr Short was concerned that, under bushfire conditions, access to the site is likely to be cut as Booralie Road, Mallawa Road and Eurabba Road experience bushfire directly abutting them from unmanaged vegetation and pinch points.

142. In Mr Short’s view, in light of the agreed nature of the bushfire risk, a broader assessment should be considered taking into account restricted access and potential for significant bushfire attack within the site and surrounding areas.

143. Mr Short claimed that the BFSA understates the required APZ to meet PBP, is therefore issued in error and presents reduced bushfire safety outcomes than previously proposed in the Conacher Report and in Mr Swain’s report. He disagreed with Mr Swain that benches and rock outcrops will alter the spread of fire up the slope toward the proposed dwelling footprints. It was also unclear to him from Mr Swain’s report where the slope transects were drawn to determine the slope or their length in terms of PBP compliance. The report also did not categorically state that the road access complies with the access requirements of PBP, particularly not having access over 18 degrees. Council GIS slope analysis had identified a number of areas greater than 18 degrees on the northern part of the access track. The northern access point transverses two particularly steep rock outcrops.

144. Mr Short was not present during the site inspection with Mr Sheppard from the RFS however, he noted that Mr Sheppard was not part of the assessing team at RFS for integrated development and therefore Mr Sheppard’s observations may not necessarily reflect that of the assessing officers of the RFS.

145. Whilst Mr Swain agreed with Mr Short's description of the local area and landform, he had sufficient comfort in terms of the safety of the occupants in the knowledge that the Court approved the creation of approved Lot 2 and the fact that the RFS, in issuing a BFSA for the proposed development, believes that there is an acceptable level of risk to the future occupants and buildings on the site. He also noted that the Revision D proposal:

1. Relocates the dwelling footprints on proposed Lots 2 and 3 further from the southern boundary of the development site and provides APZs in widths which reduce the level of radiant heat exposure on the buildings to less than required by the RFS.

2. Addresses the matter of providing adequate access to future dwellings with the provision of an alternate emergency access link through proposed Lot 1 which will not be directly impacted by fire, therefore providing a safe means of egress for residents and fire fighters.

3. Sites the building footprints closer to the boundary with proposed Lot 1. For proposed Lot 2 this enables the establishment of the majority of the recommended APZ within currently managed vegetation.

146. Mr Swain indicated that he had reviewed the Project Venture transcript at which the evidence of the RFS raised no issue with respect to the safety of the occupants of approved Lot 2 either accessing Booralie Road via the approved access road or Booralie Road. He noted that the approved Lot 2 did not have the benefit of an alternate access to Booralie Road unlike the Revision D layout which provides an alternate, safe means of egress for residents and fire fighters. He stated that, in the RFS issuing a BFSA for the proposal, they also accepted the location of the new lots having regard to the safety of the future occupants and fire fighters.

147. An onsite inspection by Mr Swain with Mr Kingdom had identified that a minimal number of remnant trees will be required to be removed within the proposed Inner APZ and no trees will be removed in the Outer APZ with hand removal of understorey vegetation and fuels to achieve required standards.

148. Mr Swain acknowledged that, for proposed Lot 3, the establishment of the APZ would result in the need to thin the trees and maintain the understorey but he did not consider that this constituted clearing of ‘significant native vegetation’.

149. In response to the concern with possible additional clearing of vegetation being undertaken once the dwelling houses are built, Mr Swain indicated that this could be addressed by the creation of a Positive Covenant on the Titles of the lots, restricting clearing to the defined APZs. Furthermore, additional protection of the CUS could be achieved by a condition requiring a fence to be erected on the western edge of the APZ to Lot 3.

150. In response to Mr Short’s issue in relation to site gradients, in particular locations that exceeded 18 degrees, Mr Swain advised the Court that Attachment 2 to Exhibit 3 did not accurately show the amended location of the dwelling sites on proposed Lots 2 and 3. Nor did it show the accurate location of the RFS approved, or his recommended, APZs which should be incorporated into the Revision D plan. His inspection of the site with the RFS confirmed the adequacy of the location of future dwellings on proposed Lots 2 and 3 based on the landform within and adjacent to the dwelling sites and the gradient of the land on which is it proposed to establish the APZs.

151. In particular, Mr Swain noted that:

1. The land identified as exceeding 18 degrees consists of sandstone outcrops or sandstone benches which have a sparse vegetation cover;

2. These outcrops/benches are short lengths of steeper land which do not form the 'effective slope' of the land for the purpose of determining the width of APZs; and

3. The larger areas of sandstone outcropsIbenches on the proposed lots are currently being managed to the standard of an APZ. The current and future maintenance will not cause destabilisation of the slope and will not result in landslip, slump, erosion or landslide as referenced in Clause 3.3(c) of PBP.

152. Mr Swain advised the Court that the widths of the APZ provided by the Revision D plan adopts a precautionary approach to the safety of the future occupants and fire fighters. Specifically, the design/layout of the proposed property access complied with Clause 4 .1.3(2) of the PBP. It had a minimum road width of 4m, passing bays at 50 - 60m intervals, all weather surface, and a maximum grade through a section of road of 14 degrees with this section being sealed with either bitumen or concrete.

153. As previously indicated, the Court was also provided with a letter from the only immediately adjoining neighbor to the east supporting the proposed emergency fire access adjoining the common property boundary.

154. While Mr Short considered the approved plan to be safer as the future dwelling would be closer to a public road, Mr Swain pointed out that it was accessed from the western extremity of Booralie Road adjoining the unmanaged National Park. The proposed lots had an alternative access to Booralie Road more than 100m further east.

155. Mr Swain said the Court should take comfort from the RFS issuing it's terms of agreement to the proposal, including alternative access now being provided and shouldn't require any further consideration of the bushfire issue.

156. Both experts agreed that there needed to be a 60m APZ to the south of the proposed lots and that it should have a 40m/20m configuration. Mr Swain proposed an amended APZ which Mr Short supported - this was subsequently reflected in the Revision E plan.

157. In summary, the applicant argued that the RFS was the primary regulatory authority in the area of bushfire risk and planning. The RFS was satisfied that the proposed subdivision was acceptable from a bushfire risk perspective and had accordingly issued a section 100B Fire Safety Authority under the Rural Fires Act 1997. Following the hearing, the Court was provided a copy of an RFS letter which raised no objection to the Revision E plan subject to conditions.

Findings

158. The parties agreed, as do I, that the site is in a sensitive location, has constraining environmental features and is subject to high bushfire risk given its immediate proximity to Ku-ring-gai Chase National Park, steep topography and vegetated nature.

159. As is often the case for subdivisions in such locations, there are conflicts between the objectives for conservation and the need to manage bushfire threat, in particular the need to clear vegetation for APZs.

160. As the Council acknowledged at the outset of the hearing, the proposal before the Court for approval was a substantial improvement on the original proposal, albeit not a material change to the intent or density, and was informed by significantly more assessment and expert conferral than the DA was. Further improvements to the proposal were offered during the hearing and agreed to.

161. Much of the Council’s objection to the application was on the basis of insufficient information but was also informed by the Council’s involvement in the Project Venture 2005 appeal which led to the 2006 Court consent after much deliberation and consideration of appropriate development for the broader site.

162. Following the Court consent, a further TEC, Pimelea, was found on the development area of the approved Lot 2. This, and the location upslope of the CUS, formed the basis for the applicant’s justification for moving Lot 2.

163. Arising from the conciliation, the applicant reconsidered aspects of the development, in particular the boundaries between the 3 lots and the proposed location of accessways, development envelopes and effluent disposal systems. The applicant also proposed amending the section 88B Instrument. This was to allow development over part of the Conservation Area designated under that Instrument, of understandable concern to the Council. However, during the hearing, the applicant offered to add additional land to the Conservation Area so that the new area to be conserved by covenant would be greater than exists today. This would include retaining the existing portion of the Conservation Area containing the CUS and adding in the former Development Area of approved Lot 2 which contains Pimelea and Tetratheca, as well as a new area adjoining the Barnes Creek wildlife corridor.

164. The proposal was also amended in terms of the effluent disposal system so that a 40m separation from the CUS was achieved with no effluent disposal systems upslope of the swamp as would occur if approved Lot 2 was developed. The applicant also liaised with the RFS to ascertain the appropriate classification of vegetation on the site in order to determine the required bushfire planning requirements, walked the site with RFS representatives and received RFS conditional agreement to the revised proposal.

165. Whilst I appreciate the Council’s reluctance to amend the 88B Instrument, or to consider modification of the Conservation Area to which it applied, I accept that the Conservation Area now proposed to be protected under that instrument includes a larger area than exists today and contains the only known occurrence on the site of one TEC, Pimelea curviflora, and the majority of the most recently surveyed occurrence of the other TEC recorded on the site, Tetratheca glandulosa. The EEC Coastal Upland Swamp will also be contained within the proposed Conservation Area. For this reason, and for the reasons that follow, I have determined that the environmental impact of the proposal is not so significant as to warrant refusal of the application.

166. On balance, weighing up all of the expert advice provided to the Court, and having regard to the planning controls and objectives which apply to the site, I have determined that the Court should grant consent to the application as amended including amending the section 88B Instrument in the manner proposed by the applicant

167. In arriving at this conclusion, I do not accept that there was inadequate assessment of flora and fauna impacts or in terms of required buffers, location, extent, nature, boundaries and significance of the EECs and TECs across the site. To the contrary, extensive surveys have been undertaken over different timeframes to inform both the 2005 appeal and the current appeal. Furthermore, the applicant’s ecological expert had undertaken the only documented assessment using accepted impact assessment guidelines.

168. There was significant effort by the experts of both parties to understand and assess the potential impacts of the proposal. Arising from this, an agreed solution for stormwater and wastewater disposal was arrived at by the engineering experts once the extent and significance of the CUS had been determined. Further flora surveys were then undertaken and the bushfire report updated based on the additional work undertaken.

169. I have therefore concluded, based on the evidence before me, that the environmental impacts will be at least as acceptable as the previously Court approved development and that there are no determinative or conclusive grounds on which to refuse the relocation of approved Lot 2 and the addition of an additional lot (proposed Lot 3).

170. In terms of the LEP objectives and a number of the grounds for refusal, I find that the proposal generally maintains the natural landscape. With regard to the TECs recorded on the site, the amended proposal enhances their retention and protection. I also accept that the biodiversity of the site and the area will be retained. This is, at least in part, due to the amended proposal including the expanded Conservation Area to be protected under the revised 88B Instrument, which incorporates the recorded EEC on the site.

171. To the extent that there is an important wildlife corridor traversing the site, the proposal protects and enhances that corridor with the inclusion of an expanded Conservation Area adjoining Barnes Creek, although I accept that this doesn’t extend to the full southern boundary of proposed Lot 3.

172. I also agree with the applicant that, based on the impact assessment undertaken by the applicant, the need for an EPBC referral is not warranted notwithstanding the existence of TECs and an EEC on the site noting also that such a referral is an applicant assessed responsibility.

173. I also conclude that the proposal is unlikely to have an adverse impact on the vegetation in adjoining reserves or the National Park. On the basis of the expert evidence provided, whilst some 41% of proposed Lot 3 is in the existing Conservation Area, the proposal offsets this loss with the inclusion of a larger area of seemingly similar ecological value to the south east. Only some 8% of proposed Lot 2 is in the existing Conservation Area and this is the APZ component with future clearing likely to be limited.

174. The expert evidence on the impacts of the development on the CUS varied significantly. Whilst Mr Mullins expressed concern about possible impacts particularly given that APZs will be as close to 5m in part, he gave somewhat conflicting evidence as to whether he was concerned that the swamp would be impacted by receiving too much or too little additional run-off associated with the development. Dr Robertson had done an assessment in accordance with accepted guidelines which concluded that the impacts would not be significant and would be acceptable. I note the CUS itself will continue to be protected within the designated Conservation Area.

175. For reasons including the assessment undertaken, I prefer Dr Robertson’s conclusions that the impacts on the CUS will not be significant. I also accept that relocating the future effluent disposal area and dwelling of approved Lot 2 from upslope of the swamp to downslope of it, even if proposed Lot 3 will be a similar distance away, must have positive implications. I also note that the applicant has gone to some lengths to design drainage systems and the access track to minimise adverse impacts.

176. I see no basis for a concern that the Council will need to more actively manage its asset, being the adjoining reserve, as there is nothing to suggest that the future owners of Lot 3 would manage their property with any less diligence than the way the conservation and Council reserves are managed.

177. In summary, I note that the proposal retains the CUS which will continue to be located in the 88B Conservation Area and that area largely retains the known recorded occurrence of TEC’s on the site as well as large areas of rock outcrops and native vegetation and links to the adjoining KCNP and Council reserve. The expanded Conservation Area adjoins these areas albeit not for the full extent given the location of proposed Lot 3.

178. In terms of bushfire risk, the Court must have regard to the advice of the RFS and their acceptance of the proposal. I understand the Council’s expert’s concern that the development now proposed is further from Booralie Road but I agree with Mr Swain that there is merit in a second fire accessway as is now proposed to Booralie Road and that this is away from the end of Booralie Road where sole access currently exists immediately adjacent to the National Park.

179. Finally, the comprehensive assessment by the Council and the environmental experts has reasonably and adequately canvassed the objections of Ms Marlowe notwithstanding I accept she is opposed to any further development adjoining the National Park given potential impacts on TECs, EEC’s and the Red-crowned toadlet in particular. In the absence of expert evidence to the contrary, these issues can be adequately addressed in the approval. Also, as previously indicated, it was agreed by the Council that, should the subdivision be determined acceptable in terms of environmental impact and bushfire risk assessment, as I have determined, then the public interest issue would be addressed.

180. Having determined that the proposal as amended is approvable, I now turn my consideration to the conditions of approval that were contested between the parties.

Contested Conditions

181. The Council filed with the Court a proposed set of conditions should the Court consent to the proposal. With the exception of four conditions, the parties agreed with the proposed conditions.

182. The first condition in dispute (proposed Condition 1) relates to the timing of an updated Environmental Site Management Plan (ESMP). The Council argued this should be required prior to development commencing as a Deferred Commencement condition whilst the applicant argued it should only be required prior to a Construction Certificate being issued. The Council’s position was that the ESMP should be reviewed and approved by Council’s ecological experts prior to any operational consent being granted to ensure that it will be sufficient to protect the site’s numerous environmental factors. Further, that there are critical environmental issues that must be adequately managed during any construction and for the life of the consent.

183. Whilst I accept the importance of updating the ESMP as stressed by the Council and agree that this needs to occur prior to development commencing onsite, as does the applicant, I do not see that it needs to preclude an operational consent being issued. The requirement that it be prepared prior to a Construction Certificate being issued will have the same outcomes sought by the Council. I note also the conditions preclude any works on site until a construction certificate is issued. I therefore propose that it be a condition required to be met prior to construction not as a Deferred Commencement condition.

184. In the final conditions responded to by the applicant, there is not a Condition 1a) which deals with the requirement for an Environmental Feature Survey as part of the ESMP despite this being still proposed by the Council. It appears that the applicant was working from an old set of conditions as there is neither an objection nor an agreement to this aspect of the condition. Whilst the applicant had previously raised concerns at this requirement, it was not proposed to be deleted in the final conditions provided to the Court and I have therefore assumed the applicant’s acceptance of it. Irrespective I have determined it should be included in the condition.

181. Aspects of proposed Condition No. 15 were also contested. The condition relates to the preparation of the Section 88B Instrument which is to be based on the updated E(S)MP as approved by the Council. The applicant requested the addition of words to the effect that the Council would not unreasonably withhold that approval. The Council considered these additional words were unnecessary. I agree. There are avenues to pursue if the Council unreasonably withholds their approval and to insert such a phrase implies that this is a likely outcome. The condition as sought by the Council is imposed but with the corrected reference to an Environmental Site Management Plan rather than to an Environmental Management Plan to align with the terminology for this Plan referred to in dealing with Condition 1.

182. Proposed Condition 28 requires a Works Environment Protection Plan (WEPP) to ensure workers on the site are aware of the elements of the site to be protected. The applicant requested that the condition be deleted on the basis that the purpose of the condition is covered by proposed Condition 34 dealing with the implementation of the ESMP. The Council argued that the condition should remain as the site is extremely environmentally sensitive and unintended damage is likely to be caused by workers on the site if they are not made aware of what needs to be protected. The Council argued the WEPP is separate and in addition to the ESMP.

183. Without seeing the updated version of the ESMP, I can not determine if it would adequately address the Council’s concerns. However, I see the WEPP as, at worst, an extension or component of the ESMP and, if it adds further environmental protection by highlighting the issue raised by the Council, I see merit in its retention. Condition 28 remains.

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

65. Restriction on animals

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

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

Reason: Protection of biodiversity.

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

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

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

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

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

65. Restriction on animals

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

Orders

194. The orders of the Court are:

1. The appeal is upheld.

2. DA 2015/0556 for a 3 lot subdivision at 145-147 Booralie Road, Duffys Forest is approved subject to the conditions in Annexure A.

3. The exhibits, except Exhibits A, C, E, M and 2, are returned.

_________________________

Jenny Smithson

Commissioner of the Court

159537.16 - Annexure A (134 KB, pdf)

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Decision last updated: 24 August 2016