Monovasios v Mid-Coast Council

[2016] NSWLEC 1283

Land and Environment Court

New South Wales

Medium Neutral Citation:	Monovasios v Mid-Coast Council [2016] NSWLEC 1283
Hearing dates:	6, 7, 8 June 2016; conditions 1 July 2016
Date of orders:	08 July 2016
Decision date:	08 July 2016
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	1. The appeal is dismissed. 2. Development Application DA269/2015 for a three storey motel comprising five motel units and a manager’s suite, with parking for six vehicles, at 10 Myall Street Pindimar, is refused. 3. The exhibits are returned except for exhibits 1, 20, A, B, G, J and N.
Catchwords:	DEVELOPMENT APPLICATION: Motel – Bushfire prone land – Asset Protection Zone –Vegetation clearing – Endangered Ecological Communities – Suitability of the site
Legislation Cited:	Environmental Planning and Assessment Act 1979 Fisheries Management Act 1994 Land and Environment Court Act 1979 Native Vegetation Act 2003 Roads Act 1993 Rural Fires Act 1997 Threatened Species Conservation Act 2005 Rural Fires Regulation 2013 State Environmental Planning Policy No 71 – Coastal Protection Great Lakes Local Environmental Plan 2014
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Davis v Gosford City Council [2014] NSWCA 343 De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1 Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 Scott Revay & Unn v Ku-ring-gai Council [1994] NSWLEC 112
Texts Cited:	Planning for Bush Fire Protection (2006) NSW Rural Fire Service
Category:	Principal judgment
Parties:	Fotios Monovasios (Applicant) Mid-Coast Council (Respondent)
Representation:	Counsel: Mr M Staunton (Applicant) Ms H Irish (Respondent)   Solicitors: Mr T Flaherty, Wilshire Webb Staunton Beattie (Applicant) Mr T Pickup, Local Government Legal (Respondent)
File Number(s):	2016/162981 (formerly 11113 of 2015)
Publication restriction:	No

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Great Lakes Shire Council (now Mid-Coast Council) of consent to Development Application DA269/2015 for a three storey motel comprising five motel units and a manager’s suite, with parking for six vehicles, at 10 Myall Street Pindimar (the site).

2. The site is located on the southern side of Myall Street, with a frontage of 20.115m and a side boundary of 72.42m, and with frontage on the southern boundary to Pindimar Bay, which is part of Port Stephens. The site has an area of 1,454sqm. There is an existing open shed and caravan on the site.

3. There are four separate vegetation community types occupying four bands across the site. From north to south, those communities are Flooded Gum Modified Tall Woodland (River Flat Eucalypt Forest on Coastal Floodplains) (RFEF), an area of approximately 30m in width from the front boundary; Mangrove Woodland, a band width of approximately 20m; Swamp Oak Floodplain Forest, a band width of approximately 15m; and Estuarine Mudflats/Mangrove Woodland, which is part of the body of the Port Stephens Estuary and is generally inundated by mean high water. The River-flat Eucalypt Forest on Coastal Floodplains and the Swamp Oak Floodplain Forest are listed as endangered ecological communities (EECs) under Sch 1 of the Threatened Species Conservation Act 2005 (the TSC Act). The location of the vegetation communities on the site and on adjoining and nearby properties is shown in Fig 6 of the Floral and Fauna Impact Assessment (ex F):

4. Access to the proposed development is from Myall Street which has a narrow gravel formation approximately 3-3.5m wide from its intersection from Koree Street to the east, a length of approximately 140m.

5. The locality predominantly comprises vacant parcels of land with some caravans, and some dwelling houses.

6. The site is Lot 4, one of nine lots in Section N DP 8287. Section N DP 8287 has an area of approximately 1.6ha and is an existing holding as defined in cl 4.2A of the Great Lakes Local Environmental Plan 2014. The immediately adjoining lots, Lots 3 and 5, are vacant. A significant part of Lot 5 is cleared. On the opposite, northern, side of Myall Street are Lot 100 DP878374 and Lot 1 DP 325112. There is a dwelling erected on Lot 100, and a development consent (DA-441/2006) for the erection of a dwelling house on Lot 1, granted in 2006. The Council accepts that that consent has not lapsed.

7. To the east of the site, east of the intersection with Koree Street, are some dwellings, including two two-storey dwellings with a cleared curtilage (ex 12, Fig 3, 4). There are two tourist accommodation sites near the site, one at Goorengi Road North Arm Cove and the other at Clarke Street Pindimar, both in the RU2 Rural Landscape zone (ex 17).

Planning Controls

8. The site is zoned RU2-Rural Landscape under Great Lakes Local Environmental Plan 2014 (the LEP). The objectives of the zone, to which regard must be had under cl 2.3(2), and the permissible uses, are:

1 Objectives of zone

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To maintain the rural landscape character of the land.

• To provide for a range of compatible land uses, including extensive agriculture.

• To provide for rural tourism in association with the primary industry capability of the land which is based on the rural attributes of the land.

• To secure a future for agriculture in the area by minimising the fragmentation of rural land and loss of potential agricultural productivity.

2 Permitted without consent

Extensive agriculture; Home occupations

3 Permitted with consent

Agriculture; Airports; Airstrips; Animal boarding or training establishments; Backpackers’ accommodation; Bed and breakfast accommodation; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cellar door premises; Cemeteries; Charter and tourism boating facilities; Child care centres; Community facilities; Crematoria; Depots; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Educational establishments; Environmental facilities; Environmental protection works; Exhibition homes; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Hazardous storage establishments; Helipads; Heliports; Home-based child care; Home businesses; Hotel or motel accommodation; Industrial training facilities; Industries; Information and education facilities; Jetties; Kiosks; Landscaping material supplies; Marinas; Mooring pens; Moorings; Neighbourhood shops; Offensive storage establishments; Open cut mining; Places of public worship; Plant nurseries; Public administration buildings; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Respite day care centres; Restaurants or cafes; Roads; Roadside stalls; Rural industries; Rural supplies; Secondary dwellings; Sewerage systems; Signage; Timber yards; Transport depots; Truck depots; Veterinary hospitals; Water recreation structures; Water supply systems; Wharf or boating facilities

4 Prohibited

Any development not specified in item 2 or 3

9. It was common ground that the proposed development is development for the purpose of “hotel or motel accommodation”, defined to mean:

hotel or motel accommodation means a building or place (whether or not licensed premises under the Liquor Act 2007) that provides temporary or short-term accommodation on a commercial basis and that:

(a) comprises rooms or self-contained suites, and

(b) may provide meals to guests or the general public and facilities for the parking of guests’ vehicles,

but does not include backpackers’ accommodation, a boarding house, bed and breakfast accommodation or farm stay accommodation.

Note. Hotel or motel accommodation is a type of tourist and visitor accommodation—see the definition of that term in this Dictionary.

10. On 6 May 2016 the LEP was amended, with the insertion of cl 7.24:

7.24 Restriction of certain development in rural and environment protection zones

(1) This clause applies to land in the following zones:

(a) Zone RU2 Rural Landscape,

(b) Zone E2 Environmental Conservation,

(c) Zone E3 Environmental Management.

(2) If development for the purposes of residential accommodation, tourist and visitor accommodation, camping grounds or eco-tourist facilities on land to which this clause applies is permitted with development consent, consent must not be granted unless development consent for the erection of a dwelling house on that land may be granted in accordance with clause 4.2A.

(3) In this clause, camping ground does not include a caravan park.

11. Clause 4.2A provides:

4.2A Erection of dwelling houses on land in certain rural and environment protection zones

(1) The objectives of this clause are as follows:

(a) to minimise unplanned rural residential development,

(b) to enable the replacement of lawfully erected dwelling houses in certain rural and environment protection zones.

(2) This clause applies to land in the following zones:

(a) Zone RU2 Rural Landscape,

(b) Zone E2 Environmental Conservation,

(c) Zone E3 Environmental Management.

(3) Development consent must not be granted for the erection of a dwelling house on land to which this clause applies unless the land:

(a) is a lot that is at least the minimum lot size shown on the Lot Size Map in relation to that land, or

(b) is a lot created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement, or

(c) is a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced and on which the erection of a dwelling house would have been permissible if the plan of subdivision had been registered before that commencement, or

(d) is an existing holding, or

(e) would have been a lot or a holding referred to in paragraph (a), (b), (c) or (d) had it not been affected by:

(i) a minor realignment of its boundaries that did not create an additional lot, or

(ii) a subdivision creating or widening a public road or public reserve or for another public purpose, or

(iii) a consolidation with an adjoining public road or public reserve or for another public purpose.

Note. A dwelling cannot be erected on a lot created under clause 9 of State Environmental Planning Policy (Rural Lands) 2008 or clause 4.2.

(4) Development consent must not be granted under subclause (3) unless:

(a) no dwelling house has been erected on the land, and

(b) if a development application has been made for development for the purpose of a dwelling house on the land—the application has been refused or it was withdrawn before it was determined, and

(c) if development consent has been granted in relation to such an application—the consent has been surrendered or it has lapsed.

(5) Development consent may be granted for the erection of a dwelling house on land to which this clause applies if there is a lawfully erected dwelling house on the land and the dwelling house to be erected is intended only to replace the existing dwelling house.

(6) In this clause:

existing holding means land that:

(a) was a holding on 15 May 1964, and

(b) is a holding at the time the application for development consent referred to in subclause (3) is lodged,

whether or not there has been a change in the ownership of the holding since 15 May 1964, and includes any other land adjoining that land acquired by the owner since 15 May 1964.

holding means all adjoining land, even if separated by a road or railway, held by the same person or persons.

Note. The owner in whose ownership all the land is at the time the application is lodged need not be the same person as the owner in whose ownership all the land was on the stated date.

12. The consequence of the amendment made to the LEP is that while development for the purpose of a motel on land in the RU2 Rural Landscape zone remains permissible with development consent, consent could not be granted unless development consent could be granted for the erection of a dwelling house on that land. That would relevantly require compliance with the minimum lot size of 40ha (cl 4.2A(3)(a)), or that the land is an existing holding (cl 4.2A(3)(d)). Neither is met for the subject site. Unless the minimum lot size is a development standard amenable to variation under cl 4.6 of the LEP, as submitted by the applicant, the effect of the insertion of cl 7.24 would be the prohibition of the proposed development.

13. Other relevant provisions in the LEP as identified by the Council are clauses 5.5 (development within the coastal zone), 5.9 (preservation of trees or vegetation), 7.1 (acid sulphate soils), 7.2 (earthworks), 7.3 (flood planning), 7.5 (stormwater management), 7.7 (riparian land and watercourses), 7.10 (limited development on foreshore area), and 7.21 (essential services).

14. State Environmental Planning Policy No 71 – Coastal Protection (SEPP 71) applies to the site. Clause 7 provides that the matters in cl 8 are to be taken into account by a consent authority when it determines a development application to carry out development on land to which the Policy applies. Those matters are:

(a) the aims of this Policy set out in clause 2,

(b) existing public access to and along the coastal foreshore for pedestrians or persons with a disability should be retained and, where possible, public access to and along the coastal foreshore for pedestrians or persons with a disability should be improved,

(c) opportunities to provide new public access to and along the coastal foreshore for pedestrians or persons with a disability,

(d) the suitability of development given its type, location and design and its relationship with the surrounding area,

(e) any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore,

(f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities,

(g) measures to conserve animals (within the meaning of the Threatened Species Conservation Act 1995) and plants (within the meaning of that Act), and their habitats,

(h) measures to conserve fish (within the meaning of Part 7A of the Fisheries Management Act 1994) and marine vegetation (within the meaning of that Part), and their habitats

(i) existing wildlife corridors and the impact of development on these corridors,

(j) the likely impact of coastal processes and coastal hazards on development and any likely impacts of development on coastal processes and coastal hazards,

(k) measures to reduce the potential for conflict between land-based and water-based coastal activities,

(l) measures to protect the cultural places, values, customs, beliefs and traditional knowledge of Aboriginals,

(m) likely impacts of development on the water quality of coastal waterbodies,

(n) the conservation and preservation of items of heritage, archaeological or historic significance,

(o) only in cases in which a council prepares a draft local environmental plan that applies to land to which this Policy applies, the means to encourage compact towns and cities,

(p) only in cases in which a development application in relation to proposed development is determined:

(i) the cumulative impacts of the proposed development on the environment, and

(ii) measures to ensure that water and energy usage by the proposed development is efficient.

15. The aims of SEPP 71 in cl 2 are:

(a) to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and

(b) to protect and improve existing public access to and along coastal foreshores to the extent that this is compatible with the natural attributes of the coastal foreshore, and

(c) to ensure that new opportunities for public access to and along coastal foreshores are identified and realised to the extent that this is compatible with the natural attributes of the coastal foreshore, and

(d) to protect and preserve Aboriginal cultural heritage, and Aboriginal places, values, customs, beliefs and traditional knowledge, and

(e) to ensure that the visual amenity of the coast is protected, and

(f) to protect and preserve beach environments and beach amenity, and

(g) to protect and preserve native coastal vegetation, and

(h) to protect and preserve the marine environment of New South Wales, and

(i) to protect and preserve rock platforms, and

(j) to manage the coastal zone in accordance with the principles of ecologically sustainable development (within the meaning of section 6 (2) of the Protection of the Environment Administration Act 1991), and

(k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and

(l) to encourage a strategic approach to coastal management.

16. The Great Lakes Development Control Plan 2014 (the DCP) applies, and the relevant provisions are section 3.3.2 Large Lot Residential, Rural and Environmental Land, which provides character statements for land including land in the RU2 Rural Landscape zone; section 4.1 Ecological Impacts; section 4.2 Flooding; section 4.4 Effluent Disposal; and section 4.7 Bushfire.

17. The site is bushfire prone, and the proposed development is integrated development. On 14 July 2015 the NSW Rural Fire Service (RFS) issued a bush fire safety authority (BFSA) pursuant to s 100B of the Rural Fires Act 1997 (ex 2, tab 11), which requires, among other things, that the site and part or all of five surrounding properties be managed as an Asset Protection Zone (APZ).

18. The site adjoins the Port Stephens/Great Lakes Marine Park, and provisions of the Native Vegetation Act 2003 apply. On 15 July 2015 NSW Primary Industries advised that a permit to harm marine vegetation must be obtained from Fisheries NSW before removal of any mangroves on the site (ex 2, tab 12).

Background to the appeal

19. The development application was lodged on 3 February 2015, and refused on 24 November 2015, and the Class 1 appeal was lodged on 2 December 2015. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) was conducted on site and at Council offices on 3 March 2016. On 17 March 2016 the conciliation conference was terminated, and the parties consented pursuant to s 34(4)(b) of the Court Act to my hearing and determining the appeal.

20. On 20 April 2016 the applicant was granted leave to amend the application to rely on amended plans. The amendments rearrange the car park, remove the proposed fill, reduce the building footprint, and remove the proposed swimming pool; lower the subfloor, ground and first floor levels, rearrange internal stair and floor configurations, and add an access ramp to enter the building; and lower the building by 690mm to comply with the 8.5m height limit. An order was made pursuant to s 97B of the Act that the applicant pay the respondent’s costs thrown away, as agreed or assessed. The plans for which leave was granted are exhibit A.

21. During the course of the hearing the applicant was granted leave to further amend the application to rely on an amended wastewater plan (ex J), subject to further amendment of that plan in relation to the dimensions and location of the raingarden proposed in the front setback, the latter being agreed by the ecological experts. In their joint report (ex 8) Dr Martens and Mr Asquith had agreed on the principles for design of the on-site wastewater management system to take into account the flood liability of the site, the provision of potable water supply as the site is not connected to reticulated water or sewerage services, and the constraints of the sensitive local environment. Dr Martens’ amended wastewater design in Exhibit J, with which Mr Asquith agreed, removes the raingarden proposed at the south eastern corner of the site, initially intended to deal with wave action, and relocates and enlarges the raingarden proposed at the north western corner; proposes two rainwater tanks on the eastern side of the building to hold permanent water for fire purposes; and relocates the holding and septic tanks to the sub-floor area. Mr Asquith agreed with Dr Martens’ calculations of required water supply based on annual average rainfall and the roof collecting capacity, and both agreed that the wastewater system would require regular maintenance.

19. The question of whether an order under s 97B of the Act is required as a consequence of the amendment of the application was reserved. The Council submits that the amendments are not minor, involving the re-design of the wastewater system and raingarden, and supersede the original assessment by SEEC (ex B, tab 3), and involve a significant change from the plans in Exhibit A. The applicant submits that the amendments arose because of the inconsistency with the ecological evidence, are not in response to anything raised by the Council, have been made with the benefit of expert evidence, and could be addressed by conditions. The purpose of the plan in Exhibit J is to demonstrate by way of concept that all relevant services can be provided, and the reassessment required started and finished during the hearing.

20. The applicable principles for considering whether the amendment is other than minor are stated in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 at [42]. Having regard to those principles, I do not consider that the amendment is other than minor. Exhibit J is, as submitted by the applicant, a concept plan; and as agreed between the experts, addresses some of the identified ecological impacts of the original wastewater design while demonstrating that required services can be provided. If development consent were granted, Exhibit J would need to be formalised in a detailed plan. In the overall context of the proposed development, the amendment does not have a significant effect (Futurespace (b)); it did not require a significant re-assessment, that assessment occurring through discussions between the experts during the hearing (Futurespace (d)); it does not involve a change in concept, but a re-design of the elements of the wastewater system (Futurespace (d)); it does not raise a new issue (Futurespace (e)); it addresses matters raised in the expert evidence arising in response to the Council’s contentions (Futurespace (f)); no re-notification was required (Futurespace (g)); and there is no evidence that costs were incurred by the Council other than its costs of engaging its experts during the hearing (Futurespace (h)). There is no basis for an order under s 97B of the Act in respect of the amendment for which leave was granted on 6 June 2016.

Issues

24. The Council’s Amended Statement of Facts and Contentions (ex 1) contended that the application should be refused for the following reasons:

1. Character: the proposed development undermines the rural character of the land, being inconsistent with the zone objective to maintain the rural landscape character of the land, due to its height and scale and the impact it will have on vegetation both on the site and on nearby properties;

2. Bushfire: the proposed development is not able to provide the necessary APZ within the site and does not provide a safe evacuation route in the event of bushfire;

3. Impact on vegetation and threatened species:

1. The proposed development will have an unacceptable impact on environmentally sensitive vegetation both on the site and adjoining the site, including EECs and vegetation communities of regional conservation significance and which provide habitat for a range of threatened and migratory species;

2. The proposed development is contrary to clauses 2(1)(a) and (g) and 8(g) of SEPP 71 in that it does not protect and preserve native vegetation or implement measures to conserve the flora and fauna on the site and surrounds; and

3. The applicant has failed to provide a valid and adequate assessment of the true and complete impacts of the proposal and to identify adequate management, mitigation, amelioration or offsetting of ecological impacts;

4. Suitability of the site: the site is not suitable for the proposed development, because it is flood prone and bushfire prone land, bushfire protection measures will have an unreasonable impact on vegetation on the site and adjacent to the site, the proposed development is contrary to an objective of the RU2 zone, and the proposal cannot be connected to reticulated water and sewerage which is critical to the water quality of the adjacent waterway contrary to cl 7.21 of the LEP;

5. Wastewater: the proposal does not provide adequate arrangements for the management and disposal of sewage which is critical to the water quality of the adjacent waterway and as such as contrary to cl 7.21 of the LEP; and

6. Public interest: the application is not in the public interest, following the amendment of the LEP to restrict development for the purposes of hotel or motel accommodation.

Evidence

25. The parties consented pursuant to s 34(12) of the Court Act for observations from the site view on 3 March 2016 forming part of the evidence in the proceedings.

26. Expert evidence was given on behalf of the applicant by Dr Daniel Martens (wastewater), Mr Russell Kingdom (arborist), Mr Wayne Tucker (bushfire), Ms Elizabeth Ashby (ecology), and Mr Paul Grech (planning). Expert evidence was given on behalf of the Council by Mr Ben Asquith (wastewater), Mr Graham Swain (bushfire), Mr Mathew Bell (ecology) and Ms Robyn Shelley (planning). Mr Kingdom was not required to give oral evidence. The other experts conferenced and provided joint reports, and gave oral evidence.

Consideration

Council’s submissions

27. The Council summarised its contentions comprising the reasons the Court should refuse consent to the proposed development as being bushfire, including the impact on vegetation and threatened species; suitability of the site for the development; inconsistency with the rural character of the land and the objectives of the RU2 zone; and the amendment to the LEP. The Council submits that the proposed deferred commencement conditions requiring the creation of easements on five surrounding properties should not postpone the proper consideration of the impacts of the proposed development on the natural environment as required by s 79C(1)(b) of the Act, including the effect of bush fire protection management works and continuing management of those five properties. The proposed development does not meet the requirements of Planning for Bush Fire Protection (PBP) for use of adjoining lands to meet APZ requirements; and there is no fire management plan for supervising the fuel management protocols for the site and surrounding properties or an emergency management plan for fire protection/evacuation, or operations plan making provision for flood as well as fire. No actions or offset to compensate for the removal or modification of an area of RFEF more than 2.5 times the size of the site were proposed until well after the joint conferencing and reporting; the proposed development will have an unacceptable impact on environmentally sensitive vegetation including two EECs and vegetation communities of regional conservation significance; and the proposed development is contrary to the DCP, and SEPP 71. The site is not suitable for the proposed development, being flood prone, and given the absence of information about security of potable water supply, and because it cannot achieve the objectives of the RU2 Rural Landscape zone. The amendment to the LEP in May 2016 is a mandatory relevant consideration pursuant to s 79C(1)(a)(ii) of the Act, and clearing and maintenance necessary for the APZ will irreversibly compromise the rural landscape character of the land.

Applicant’s submissions

28. The applicant submits that the application is for a small scale motel and carpark, complying with the height limit and located at the PMF flood level specified by the Council, with an FSR of 0.19:1 where the control is a maximum of 0.4:1; and it could not be concluded that the development would have an unacceptable impact on the rural character of the land because of the removal of vegetation. Weight should be given to the zoning, and so it should be expected that there could be a motel in some form on the site; and the proposed development achieves the character anticipated by the zone objectives, and is not inconsistent with the DCP requirements. In relation to bushfire, neither the experts nor the RFS has an issue with the provision of the APZ which is now agreed between the experts other than for management of a section of land on Lot 6. The size of the APZ cannot be reduced because the development is a special fire protection purpose, and it is not unreasonable to have the APZ extend outside the site: there is no evidence of any amenity impacts, the other lots would not be able to be developed because of the amendment to the LEP, and there is no evidence of any other development applications. There are agreements in principle with the other landowners bar one, the proposal falls within the exceptions in PBP, and the works required in the road reserve can be the subject of approvals under the Roads Act 1993. The principles of an emergency management plan are settled (ex N), there is agreement between the bushfire experts that the motel would not operate on forecast catastrophic fire days and advice would be sought on total fire ban days, and the premises would be a safe refuge. In relation to impacts on vegetation and threatened species, the applicant submits that the Flora and Fauna Assessment has addressed the material relevant for SEPP 71, and the Court should accept Ms Ashby’s evidence as to the areas of RFEF in the locality. The operational impacts of the motel are addressed in the requirement for fencing to prevent people accessing the water; and construction impacts are limited, with only 5 Mangrove trees to go, and the Flora and Fauna Assessment addressing impacts on habitat. The applicant is happy to make an offer for offset provided the Council identifies suitable land for tree planting; there is no serious contention or evidence that there are koalas on the site; and separate approval would be required under the Native Vegetation Act 2003, which provides exemptions for example clearing on either side of a boundary fence. The matters raised as particulars for the contention that the site is not suitable for the development are either addressed in the expert evidence or are not relevant to the application. The applicant submits that the amendment of the LEP should be given significant but not determinative weight, and the proposed development should be considered on the basis that it is permissible on the site; and whether or not cl 4.2A of the LEP is a development standard or would now prohibit the proposed development, the proposal is not antipathetic to the objectives of the zone.

29. It was common ground that applying cl 1.8A of the LEP, the development application must be determined as if the amendment to insert cl 7.24 had not commenced: De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1. The parties agreed that the commencement of the amendment means it must be treated as certain and imminent, while disagreeing as to the weight to be given to it.

30. It was common ground that the proposed development remains permissible with development consent. In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 McClellan CJ held (references omitted):

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 …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…. 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.

31. For the reasons which follow, while the proposed development is permissible, I am not satisfied that the environmental impacts are acceptable. Those impacts arise primarily as a consequence of the clearing and ongoing maintenance required to create and maintain an APZ of a size adequate for bushfire protection purposes for a proposed use that is a special fire protection purpose. As a consequence of those impacts, I am not satisfied that the site is suitable for the proposed development, and development consent should not be granted.

Bush fire protection

32. The first issue to address is the extent of initial clearing and ongoing maintenance of the site and the surrounding properties for bush fire protection purposes.

33. The proposed development is a “special fire protection purpose” (SFPP) as defined in s 100B(6) of the Rural Fires Act 1997, being development for the purpose of “a hotel, motel or other tourist accommodation” (s 100B(6)(d)). A BFSA is required before developing bush fire prone land for that purpose: s 100B(3). The BFSA provided by the RFS requires that the entire site be managed as an inner protection area (IPA) as outlined in section 4.1.3 and Appendix 5 of Planning for Bush Fire Protection 2006 (PBP) and the RFS “Standards for asset protection zones”. The RFS requires the APZ to be managed:

• North over Lot 1 DP 325112 and Lot 100 DP878374 for a total distance of 60m from the exterior wall of the building, with the first 40m as an IPA and the remaining 20m as an outer protection area (OPA);

• East over Lot 5 DP8287 and Lot 6 DP8287 for a total distance of 30m as an IPA; and

• West over Lot 3 DP8287 for a total distance of 20m as an IPA.

34. The BFSA also specifies requirements for provision of adequate services of water and for location of utilities; preparation of a Bush Fire Emergency Management and Evacuation Plan; and design and construction of the building to comply with sections 3 and 5 (BAL12.5) Australian Standard AS3959-2009 “Construction of buildings in bush-fire prone areas” and section A3.7 Addendum Appendix 3 of PBP.

35. Appendix 1 of Mr Kingdom’s Arboricultural Impact Assessment dated 18 April 2016 (ex D) identified the trees to be retained and those to be removed on the site, two adjoining lots, and the land on the opposite side of Myall Street, for the IPA and OPA. On the subject site, for construction of the proposed development including the carpark and for the APZ, trees 1-18 and 25-39 require removal. For the APZ, on the adjoining lot to the west, Lot 3, two trees are to be removed (74, 75); on the adjoining lot to the east, Lot 5, six trees (45-51) are to be removed; and on the land on the opposite side of Myall Street, nine trees are to be removed from Lot 100, and three trees on Lot 1.

36. Mr Kingdom identified the species of the trees to be removed from the site and the adjoining properties as Banksia integrifolia (Coast Banksia), Eucalyptus grandis (Flooded Gum), Glochidion ferdinandi (Cheese Tree), Casuarina glauca (Swamp Oak), Avicennia marina (Grey Mangrove), Melaleuca quinquenervia (Broad-leaved Paperbark), Eucalyptus botryoides (Bangalay), Syagrus romanzoffiana (Cocos Palm), and Leucopogon parviflorus (Coast Beard Heath) (ex D, pp 5-19). All were considered to have a high significance in landscape (ex D, Appendix 3, 5).

37. Exhibit 19 is the Notice of Determination for development consent DA-441/2006 for the erection of a dwelling house on Lot 1 DP 325112, and the Bushfire Threat Assessment referred to in conditions 24, 26, and 27 of that consent. Condition 24 requires that the property be managed as an IPA. Condition 26 requires an internal fence on the alignment of the “protected lands buffer (10 metres)” to define the protected area of environmental significance on that property, being a SEPP 14 wetland and its 10m buffer. Condition 27 refers to the APZ identified in the Bushfire Threat Assessment.

38. Mr Bell’s evidence responding to the approved plans for development consent DA-441/2006 was that Trees 69, 70 and 71 would be removed for the construction of the driveway for the approved dwelling on Lot 1. Mr Tucker and Mr Swain also considered the extent of clearing required for the development on Lot 1, and provided an Addendum Joint Statement of Evidence (ex 18). They agreed that as a consequence of the terms of that consent, the APZ for the subject site could terminate at the boundary of the “protected lands buffer (10 metres)”, shown in the plan which is Attachment B to Exhibit 18, and so Trees 72 and 73 and the understorey within the protected lands buffer could be retained.

39. The revised management regime for the APZ is provided in the Amended Figure 9 prepared by Mr Swain and Mr Tucker (ex 18), which shows the IPA in red and the OPA in orange:

Findings

40. On the basis of the agreed expert evidence, I find that the provision of the APZ for the proposed development requires removal on the subject site of Trees 1-18, and 25-39. On the adjoining lot to the west, Lot 3, two trees are to be removed (74, 75); and on the adjoining lot to the east, Lot 5, seven trees (45-51) are to be removed. On the land on the opposite side of Myall Street, nine trees are to be removed from Lot 100. On Lot 1, the trees that would otherwise be required to be removed are affected by the approved development on that site (Trees 69, 70 and 71), or are agreed can be retained (Trees 72, 73). Based on Mr Kingdom’s arboricultural assessment, the trees to be removed are 4 x Banksia integrifolia, 20 x Eucalyptus grandis, 6 x Glochidion ferdinandi, 5 x Casuarina glauca, 5 x Avicennia marina, 8 x Melaleuca quinquenervia, 1 x Eucalyptus botryoides, 2 x Syagrus romanzoffiana, and 1 x Leucopogon parviflorus. As Amended Figure 9 prepared by the bushfire experts shows, on the land on the other side of Myall Street, understorey management of RFEF to achieve 20% shrub density is required for part of Lot 100. In the Council road reserve, understorey management delivered by weed control is required to maintain 20% shrub density. For the adjoining lots, understorey management of the RFEF to maintain 20% shrub density, and reduction of dense understorey of rushes in the Mangrove Woodland is required for Lot 3 (Areas F, G), and for Lot 5 and part of Lot 6 understorey management of the RFEF to maintain 20% shrub density is required (Area B).

41. The bushfire experts remained in dispute as to management of a section of Swamp Oak Floodplain Forest on Lot 6, identified on Amended Figure 9 as Area K. Mr Tucker considered that management of that area could remain unchanged, whereas Mr Swain was of the opinion that ground fuels, primarily fallen Sheoak needles, need to be managed to 8t/ha. No vegetation management is required for the band of Swamp Oak Floodplain Forest and Estuarine Mudflat on the southern side of the site. Ms Ashby’s opinion was that even on Mr Swain’s approach there would not be an adverse impact; Mr Bell agreed that there would not be a significant impact given the area, which is in the order of 40sqm. I accept the agreed evidence that even on the more stringent approach of Mr Swain, the impact on that area of Swamp Oak Floodplain Forest would not be significant.

42. The owners of Lots 3 and 5 Section N DP 8287 have provided letters stating their consent to temporarily permit the owners of the subject site to enter their land and maintain it to an IPA standard (ex 2, tabs 9, 10). The owners of Lot 5 Section N DP 8287, Lot 100 DP 878374 and Lot 1 DP 325112 have provided letters stating their agreement to a s88B instrument for the maintenance of an APZ (ex H). The applicant advised during the hearing that an application has been made to the Council under s 138 of the Roads Act 1993 for approval of the work required in the road reserve. The parties agree on the terms of a deferred commencement condition requiring creation of easements for bushfire purposes over Lots 3, 5 and 6 Section N DP 8287, Lot 1 DP 325112 and Lot 100 DP 878374, and a permit under s 138 of the Roads Act 1993 to undertake the vegetation management works in the road reserve (while remaining in dispute as to whether the time for satisfaction of the condition should be 12 months or three years).

40. Having regard to the correspondence and the proposed deferred commencement condition relating to creation of easements, I accept that there is at this point no basis to assume that the bush fire protection measures required by the RFS in the form of easements as specified in the BFSA could not be created either on a voluntary basis through negotiation with the owners of the affected properties, or, as submitted by the Council, on an application under s88K of the Conveyancing Act 1919, or that the APZ could not in practice be created. However, that is only one factor, and the appropriateness of providing bush fire protection through management of adjoining and surrounding land as an APZ must be considered.

41. The objective of section 4.7 Bush Fire of the DCP is to ensure that new development “is designed with regard to bush fire hazards”. Section 4.7(3) provides that any bush fire protection measures such as APZs “must not encroach upon any adjoining land”. More detailed guidance is provided in PBP, which applies to all development applications on land classified as bush fire prone land, and includes specific controls for SFPPs.

42. Section 4.2 of PBP notes that the specific objectives for SFPP developments are to provide for the special characteristics and needs of occupants, who, unlike residential subdivisions, may not be able to assist in property protection, and to provide for safe emergency evacuation procedures. At p 29 PBP notes that the biggest challenge for hotels, motels and other tourist accommodation is evacuation of people who may have no comprehension of the danger or knowledge of the area in which they find themselves. Section 4.2.7 provides standards for bush fire protection measures for SFPP developments, including for APZs, access, services, and emergency and evacuation planning. At p 33, PBP states that acceptable solutions include an APZ provided in accordance with the relevant tables in Appendix 2, and that the APZ is wholly within the boundaries of the development site, noting that exceptional circumstances (section 3.3) may apply.

43. Section 3.3 of PBP states that reduced APZs and the use of adjoining lands for meeting APZ requirements will only be permitted in exceptional circumstances based on the merits of the particular development; consideration is on a case-by-case basis, and the applicant should provide clear evidence that strict prescriptive compliance is unreasonable and unnecessary. At p 13 PBP states the principles that should be demonstrated for exceptional circumstances:

• the existing form of development will obtain a better bush fire risk outcome than if the development did not proceed (eg through increased construction standards);

• the building line should be no closer to the hazard than neighbouring properties;

• the extensions should be no closer to the hazard than the existing building footprint;

• an upgrade of existing facilities may be required; and

• the proposal is an infill arrangement and site constraints do not allow APZ requirements to be met.

47. The applicant submits that the proposed development meets the final principle; the Council submits that none are satisfied.

48. At p 14 PBP lists some examples of exceptional circumstances for an APZ to be located on adjoining land:

Where it can be demonstrated that there is a strong likelihood of the adjoining land being developed for future residential or other compatible purposes (eg staged development or Urban Development Program or Strategies with supporting development control plans).

Where a development was approved prior to 1 August 2002 and the applicant is only proposing alterations and/or additions to existing buildings and the existing APZ does not comply with current APZ requirements. The alterations/additions should lead to increased construction standards up to and beyond BCA (AS 3959) Level 3 construction.

Where easements are also required on adjoining land for the purposes of providing access for utilities, right of way, as fire trails, and drainage. These are to be kept clear of free standing vegetation. In such circumstances, the proponent will need to obtain written confirmation from the relevant authority that the easement will continue to be maintained in a suitable manner.

Where the proposal is considered ‘infill development’ for a single residential building and existing residential areas will also (or currently) benefit from improved APZs on the same adjoining land holding.

In all cases, the adjoining owner’s consent is required to be lodged with the development application for an easement.

49. The applicant submits that exceptional circumstances are established, in the absence of amenity impacts and the inability of the other lots to develop given the amendment of the LEP.

50. I am not persuaded that the applicant has established that exceptional circumstances based on the merits of this development apply so as to permit the use of adjoining lands to meet the APZ requirements, for the following reasons.

51. Mr Tucker’s evidence was that the RFS no longer requires exceptional circumstances and issues BFSAs with easements; Mr Swain’s evidence was that his experience has been that the RFS has refused to give an approval without written authority for an APZ over a council road reserve. However, whatever might be current RFS practice, in my view it would not be appropriate to disregard the requirement in sections 3.3 and 4.2.3 of PBP that exceptional circumstances be demonstrated for an APZ on adjoining land, given the incorporation of PBP in section 4.7 of the DCP and in the provisions for applications for BFSAs (cl 44(1)(h) Rural Fires Regulation). The approach in section 3.3 of PBP reflects the principle stated by Talbot J in Scott Revay & Unn v Ku-ring-gai Council [1994] NSWLEC 112:

As a matter of principle, where essential works are required in regard to a development, particularly where those works are ongoing, it is imperative, except where the most exceptional circumstances apply, that the site for those works be provided within the subject land. Although such a principle may not be of general application in respect of all works associated with development, it clearly applies in relation to bushfire hazard management.

52. The requirements for the consent of adjoining owners to be provided with the development application, and for easements to be included in conditions of consent, are only part of the analysis required by section 3.3 of PBP. The examples provided in PBP make it clear that consideration of the characteristics of the proposed development in its context is required. Having regard to those examples, I am not persuaded that exceptional circumstances have been demonstrated in the circumstances of this proposal. I do not agree that the proposed development can be characterised as infill development, in circumstances where there is no existing development of adjoining land, or evidence of development proposals or consents other than the consent for Lot 1. Following the amendment of the LEP there is no “strong likelihood” of adjoining land being developed for future residential or other compatible purposes, as even if the applicant’s submission that the minimum lot size is a development standard and not a prohibition, is correct, a request under cl 4.6 for variation would have to be made and accepted. None of the other examples of exceptional circumstances are relevant in the circumstances of this proposal, and absence of evidence of amenity impacts would not appear to meet the requirement that it is for the applicant to provide clear evidence that compliance is unreasonable or unnecessary. I accept that the proposed development is permissible with development consent, and that as a SFPP it requires a larger APZ than might be required for other uses. However, those factors could not of themselves constitute exceptional circumstances. Rather, establishing that a proposed development is permissible, and the extent of the APZ required under section 4.2.7, are the starting point from which the argument would need to be made that compliance is unreasonable and unnecessary so as to warrant permitting the use of adjoining lands to meet those APZ requirements.

Ecological impacts

53. The next issue to consider is the ecological impact of the clearing and ongoing maintenance required for bushfire protection, and for the construction and operation of the proposed development.

54. Ms Ashby and Mr Bell agreed (ex 11, pp 3-4) that the potential ecological impacts of the proposed development are:

1. Clearing and modification of native vegetation and wildlife habitat associated with the construction of the facility and associated services/utilities, and the creation and maintenance of the APZ in the development area, being:

1. Clearing and modification of vegetation communities, totalling 487sqm for construction of the building footprint, 2,801sqm modified for bushfire IPA, and 1,305sqm modified for bushfire OPA; and

2. Removal of individual trees for construction, bushfire protection and the management of risk, as identified in the Arboricultural Impact Assessment, noting that none of the trees to be removed contain hollows or cavities useable by native fauna species; and

2. Indirect and associated environmental impacts associated with:

1. Pollution of downstream habitats during construction, formation and maintenance of the APZ and the permanent operation/occupation of the facility;

2. Introduction of weeds and creation of modified areas prone to new weed invasion;

3. Introduction of domestic animals and modification of habitat in a manner that encourages or enhances feral pest animals; and

4. Risks and impacts associated with disturbance on the land as a consequence of the construction, the formation of the APZ and the permanent operation/occupation of the facility.

55. Ms Ashby and Mr Bell defined the development area as the subject site and all surrounding areas potentially affected by the required APZ or access upgrade works.

56. In her Flora and Fauna Assessment Report (ex F) Ms Ashby provided a Table (p 21) showing distribution of vegetation to be cleared:

Map Unit	Total area	Construction footprint	IPA	OPA
1 River-flat Eucalypt Forest	3,760	482	1,975	1,305
2a Mangrove Woodland in depression	840	5	835	0
2b Estuarine Mangroves	255	0	255	0
3 Swamp Oak Floodplain Forest	635	0	635	0
4 Tidal flat/open water	415	0	415	0
5 Cleared	1,910	0	1,270	640
TOTAL	7,815sqm	487sqm	5,383sqm	1,945sqm

57. Ms Ashby considered that the area of Mangrove Woodland in the landward depression on the site (Area A), approximately 350sqm of IPA, requires removal of 6 trees close to the footprint and selective removal of the wrack and some Juncus krausii to maintain the understorey at 20% cover, using manual methods only. On Lots 5 and 6, where 630sqm is cleared land, the approximately 1010sqm area of RFEF in the IPA and OPA (Area B) will require removal of 4 trees for canopy separation, and the understorey is to be maintained in its current status. On Lot 3, approximately 375sqm of IPA comprising Mangrove Woodland with a dense layer of rushes/sedges in the understorey (Area G), no trees need to be removed but the rush/sedge layer needs to be selectively reduced to 20% cover using manual methods only. The area of RFEF on Lot 3, 650sqm of IPA (Area F), requires removal of two trees and control of weed thickets. The area of RFEF in the IPA in the road reserve, approximately 190sqm (Area E) requires removal of weed thickets.

58. Ms Ashby addressed the impact of vegetation clearing, concluding (p 22) that there would be no direct impact on the Estuarine Mangroves, Swamp Oak Floodplain Forest, Tidal flat/open water or cleared areas. For the RFEF, removal for the building footprint would affect 13% of the total area, management as an APZ would affect 20% of the total area, and management as an APZ by weed removal, 22% of the total area of 3,760ha. In oral evidence Ms Ashby agreed that would leave 45% of the RFEF unaffected. For Mangrove Woodland in depression, 0.6% of the total area would be removed for the footprint, and 86% of the total area would be removed for the area managed as an APZ.

59. Ms Ashby’s assessment and quantification of required tree removal and ongoing management of the land on both sides of Myall Road needs to be qualified by reference to the evidence of the bushfire experts. The evidence and findings as to the extent of tree removal and understorey management required for the construction of the facility and for the APZ, are discussed above. The area of RFEF on Lot 1 and Lot 100 on the western side of the OPA, approximately 140sqm (Area D), requires management to achieve 20% shrub density, subject to the termination of the APZ at the boundary with the protected lands buffer. An area of RFEF in a fairly natural condition in the OPA to the east requires removal of 10 trees, and a large core of 160sqm of understorey can be retained intact (Area C).

60. Ms Ashby addressed habitat fragmentation, impact on fauna habitat, displacement of fauna, and indirect impacts and runoff (ex F, pp 23-25). The site is near but not part of a large scale subregional corridor, and while the site is in relatively poor condition and internally fragmented it is likely to play some role in connecting this important corridor to other surrounding vegetation and habitats at least for highly mobile species, and thus the development has the potential to interrupt this link to some degree; the scale of the proposed loss and modification of vegetation was small and unlikely to prevent movements of highly mobile species, and the pattern and extent of retained vegetation would continue to facilitate local movements of such species. Fauna habitat would be lost or alienated through removal of trees and disturbance of adjacent habitats, however the trees with greatest ecological value such as hollow-bearing trees and winter-flowering tree species would be retained and other disturbances and losses mitigated to some extent. Light and noise mitigation measures should be adopted. Vegetation removal should be undertaken under ecological supervision to ensure animal welfare considerations are observed. Strategic use of standard erosion and sediment controls and control of weeds, and assessment of acid sulphate soils, would control indirect impacts and runoff.

61. Ms Ashby was of the opinion that the proposal is unlikely to have a significant impact on the RFEF, on the basis that this is the dominant community in the local area being associated with the Shoal Bay soil landscape, and undoubtedly occurs across hundreds of hectares, so the scale of loss and modification is inconsequential. There will be no direct impact on the occurrence of the Swamp Oak Floodplain Forest, and indirect impacts will be controlled by standard best practice techniques including installation of an enclosed septic pump out system. The proposal is unlikely to have a significant impact on identified threatened species of birds and mammals. The Flora and Fauna Assessment concluded that the proposal is unlikely to result in a significant adverse impact for any matters of import, and provided recommendations to ameliorate impacts (ex F pp 39-40).

62. In their joint report the ecological experts responded (ex 11, p 5) to the Council’s contention that the proposed development would have an unacceptable impact on ecologically sensitive vegetation both on the site and adjoining to the site including EECs and vegetation communities of regional conservation significance and which provide for a range of threatened and migratory species. Ms Ashby relied on her Flora and Fauna Assessment (ex F) for her opinion that while the proposal would have an impact on those matters she did not consider the impact to be unacceptable. Mr Bell considered that there is an absence of suitably scaled local or subregional mapping for the EECs that are within the development area, which constrains an analysis of the degree to which they are impacted in the local context. In his opinion, the ecological performance of aspects of the proposed development have been improved during the process of consideration, however there are unmitigated impacts associated with the construction and operation of the facility, which is a SFPP and thus subject to larger APZ requirements; and no actions are proposed to offset or compensate for the ecological impacts such as to secure and manage areas of habitat for threatened species and EECs.

63. In oral evidence Ms Ashby and Mr Bell agreed that the applicant’s proposal for restriction of access to the foreshore by exclusion fencing, signage and education was appropriate to protect the foreshore and its associated vegetation (Mangrove Woodland and Swamp Oak Floodplain Forest). The parties have agreed on a condition (55B) which requires erection of the fencing prior to issue of an occupation certificate. The experts disagreed as to whether the Council’s proposed condition 21 requiring erection of six nesting boxes or refurbished natural hollows was appropriate, Ms Ashby considering that while nesting boxes are standard and best practice to compensate for loss of hollows, none are to be lost, and nesting boxes on the site would be subject to the same disturbance as natural hollows.

64. Both experts noted the lack of regional vegetation mapping for the EECs. Ms Ashby’s assessment of the extent of RFEF was based on the potential for the RFEF in the local area, based on topographic maps, soil types, aerial photography, and traversing local roads in the area. On that basis her assessment was that there are hundreds of hectares, and so the loss here is not a significant adverse impact. Mr Bell had not undertaken any additional assessment however he disputed Ms Ashby’s conclusion as to the extent of RFEF in the area. In his opinion RFEF occupies a narrow range of landform characteristics, and is not well represented in the locality and is limited in occurrence and quite confined. He has been at the Council since 2002 and he cannot recall assessing any application involving impact on RFEF. Ms Ashby agreed that the RFEF does not occur in estuarine swampy environments, however even if her assessment is out by an order of magnitude, in her opinion the scale of the impact is small.

65. The applicant proposes an offset for the residual impact on the RFEF, in the form of $6,000 for planting of 470 trees of local provenance of appropriate species equivalent to the species and numbers to be removed, including site preparation and seasonal maintenance for 4 years, or in the alternative, $6,000 for bush regeneration works on public land. The proposed condition 67 is subject to the requirement that the Council nominate a suitable site within 12 months of the issue of an occupation certificate. Ms Ashby and Mr Bell had discussed the possibility of offsets during their conferencing. Mr Bell was uncertain as to the availability of suitable land, however he had identified some potentially suitable land near Hagons Creek which he had not yet seen. He had a concern about tree planting being a suitable offset, as trees are only one component of the EEC, and it could become a resources burden on the Council after the maintenance period. Ms Ashby was not convinced that the scale of the proposed development requires an offset, however she considered that there could be some bare areas on the patch of Council land, possibly with lantana that could be cleared for tree planting.

66. Ms Ashby’s evidence (ex F, p 20) was that the proposed footprint is significantly smaller than originally proposed and now avoids impacting on most of the Mangrove Woodland, all of the estuarine Mangroves, and all of the Swamp Oak Floodplain Forest; a careful consideration of the vegetation, the site’s limitations, habitats and likely fire behaviour have enabled the impact to be minimised; vegetation management works are reduced to the absolute minimum required, and remaining potential impacts are mitigated and ameliorated by prescription and management of activities including implementation of conservation management strategies. Mr Bell acknowledged (ex 11, p 5) that the ecological performance of the proposed development has been improved during the process of consideration, however he considered that there are unmitigated impacts associated with construction and operation of the facility, and it is a SFPP requiring a larger APZ.

Findings

67. I accept the agreed expert evidence as to the potential ecological impacts of the proposed development in terms of the construction of the facility and associated services, creation and maintenance of the APZ, and indirect impacts associated during construction and operation of the facility. The findings as to the extent of tree removal and vegetation management are at paragraph [40] above. While the actual numbers would require some minor adjustment to reflect the ultimately agreed position relating to bushfire protection, I accept in general terms Ms Ashby’s quantification of the proportion of vegetation on the site and surrounding area impacted by the proposed development.

68. Assessment of the significance of the impact on the RFEF EEC is constrained by the agreed lack of local or regional mapping. The NSW Scientific Committee Final Determination for the RFEF is in evidence (ex 5), and states that the remaining area of RFEF is considered likely to represent much less than 30% of its original range (ex 5, para 9), and land clearing is a continuing threat (ex 5, para 11). The Final Determination supports the agreed expert evidence as to the limited range of landform characteristics supporting the EEC, noting (at para 1) that it is associated with silts, clay-loams and sandy loams on periodically inundated alluvial flats, drainage lines and river terraces associated with coastal floodplains. While the experts agreed on the steps Ms Ashby took to attempt to quantify the extent of RFEF in the local area, there is a degree of uncertainty, particularly given Mr Bell’s local experience, as to the likely extent of RFEF in the local area.

69. Whether or not Ms Ashby’s assessment that the impact of the proposed development on ecologically sensitive vegetation, in particular the RFEF, is of a scale that would not have an adverse impact in the local or regional context that could be described as significant is correct, it is clear on the expert evidence that the proposed development requires clearing and ongoing modification of vegetation communities including the RFEF EEC. The effects of the development on those vegetation communities must be taken into consideration irrespective of whether the effects attain the threshold of being likely significant effects, in accordance with s 79C(1)(b), (d) and (e) of the Act: Davis v Gosford City Council [2014] NSWCA 343.

70. The development as now proposed must be considered having regard to the applicable planning controls: s 79C(1)(a) of the Act. The objectives of the RU2 Rural Landscape zone are provided above. Based on the agreed planning evidence that the site has little or no primary industry capacity, the relevant objective is to “maintain the rural landscape character of the land”, considered below in the context of the planning evidence.

71. Ecological Impacts are addressed in section 4.1 of the DCP, the objective of which is:

To ensure that development is designed in a manner that avoids, mitigates or offsets negative impacts on biodiversity and the quality and function of the natural environment and responds to relevant environmental constraints and opportunities.

72. Section 4.1 lists 20 biodiversity and ecological matters for consideration in considering whether to grant consent. I accept that the amendments to the application, in particular the smaller footprint and the use of pier footings to remove the need for fill, have reduced some potential impacts. The agreed proposed conditions require prior to issue of a construction plan preparation and approval of a weed management plan (19) and a vegetation management plan including a fuel/fire management plan (22A), and details of exterior lighting to minimise light spill to the foreshore area (20); prohibit cats and dogs (6); and require compliance with the Native Vegetation Act 2003 (17). I accept that compliance with those management actions, and the provision of fencing to prevent uncontrolled access by guests to the sensitive foreshore, would minimise impacts. Notwithstanding the measures to reduce impacts, the proposed development still requires the clearing of an area of EEC and other vegetation communities in order to provide an APZ of the size required for a SFPP. Having regard to the matters listed in section 4.1 of the DCP, I am not persuaded that the proposed development avoids or minimises negative impacts on native vegetation. In the context of the uncertainty as to availability of suitable land, I am not persuaded that the applicant’s offer of $6,000 for tree planting can be regarded as a reliable offset to compensate for the ecological impacts of the clearing required for the APZ.

73. Clause 8 of SEPP 71 lists the matters for consideration in determining a development application on land to which the SEPP applies. Those matters include the aims of the SEPP in cl 2, which include (a) to protect and manage the natural, cultural, recreational and economic attributes of the NSW coast, and (g) to protect and preserve native coastal vegetation, and cl 8(g) measures to conserve animals and plants within the meaning of the TSC Act. The original proposal has been redesigned, and as noted by Ms Ashby the Swamp Oak Floodplain Forest EEC and Estuarine Mangrove are protected, a vegetation management plan and weed control works are required, lighting is to be managed to avoid disturbances, and access to the foreshore is to be restricted. However, the large APZ required for the SFPP requires the removal of RFEF and some Mangrove trees in the Mangrove Woodland, and ongoing disturbance for maintenance of the APZ in the form of understorey management.

74. The ecological impacts of the proposed development do not achieve the objectives of section 4.1 of the DCP, or the aims of SEPP 71. Those impacts arise primarily because of the size of the APZ required for the SFPP; the constraints of the site, namely its size and the location of EECs and other ecologically significant vegetation communities; and the requirement for vegetation removal and ongoing management on the site, five surrounding lots and on the Council road reserve.

Rural character

75. Mr Grech and Ms Shelley agreed (ex 12) that the relevant locality for consideration of the existing character of the area is the area along the northern foreshore of Port Stephens on the southern side of Myall Street including Section N DP 8287 and a similar area to the east of the intersection with Koree Street, and a similar area of the properties on the northern side of Myall Street. They agreed that the existing character is a scattering of dwelling houses, and a number of caravans and fixed outbuildings on individual lots; that roads are of a rural standard; that there are no rural activities such as agriculture or grazing in the locality; and that the dense band of mangroves on the foreshore creates a screen, such that the site and the proposed development would not be visible from Port Stephens and other foreshore locations. I accept that evidence.

76. The planners disagreed as to whether the proposed development would undermine the rural character of the area. Both referred to the character statement at section 3.3.2 of the DCP for areas of large lot residential, rural or environmental land including land zoned RU2 Rural Landscape, which states:

The desired future character of residential development in these areas is for small scale low impact dwellings and ancillary structures which respond to topographic and environmental site constraints.

77. Existing development patterns are characterised as development that is secondary to the natural environment and does not dominate views and vistas, detached buildings generally single storey, and retention of natural tree cover with consideration of both bush fire hazard and environmental protection. New development is to be guided by the following objectives:

•To promote development that is sympathetic to the existing character of the locality, as well as the specific landform, vegetation, soils and geology of the site;

•To protect and enhance sensitive environs and waterways;

•To ensure the preservation of rural land activities and agriculture and prevent fragmentation of rural lands;

•To minimise potential conflicts between land uses, especially primary production enterprises and rural small holdings;

•To prevent the siting and orientation of any new building upon any prominent ridgeline or hilltop.

78. Mr Grech was of the opinion that the proposed development would not contravene any of the development principles, and the proposed development does provide an appropriate balance for retention of tree cover on the site, and minimal tree removal beyond the site. The planned rural landscape character of the area includes the uses permissible in the zone. In his opinion the proposed development does not undermine the rural character of the area, and positively contributes to the attainment of the land use objectives, because the site after development would not be seen from surrounding areas; the site would have low prominence as the proposed buildings would not be visible until almost in front in Myall Street, a low-traffic road; the required clearing on and off-site is characteristic of other housing development in the locality; tourist accommodation is part of the existing character of the broader RU2 zoned lands; motels in particular are part of the planned character of the area, and a much larger motel could be proposed on the existing holding; and there is no reason to give any negative weight to the recent amendment to the LEP.

79. Ms Shelley was of the opinion that a three storey building with a large parking area would not maintain the rural character of the area or result in a development secondary to the natural environment or sympathetic to the existing character of the locality; and the proposed building is a large bulky building unlike typical residential accommodation in the area. Ms Shelley accepted that the proposed clearing on and off the site is characteristic of other housing development in the locality, however some of that clearing has been carried out on properties without a dwelling entitlement and is likely to have been unlawful, and is not characteristic of development on the properties adjoining and in close proximity to the site.

Findings

80. I accept as Ms Shelley did that development for a motel in a rural landscape setting could maintain the rural landscape character of the land, and be compatible, consistent with the second and third objectives of the RU2 zone. I accept, as did Ms Shelley in oral evidence, that the proposed development is compliant with the height and FSR limits, and can be characterised as a small scale motel. I agree that the clearing proposed is not dissimilar to other properties in the locality, in partiuclar the two two-storey dwellings to the east on which Mr Grech relied. While it can be accepted that some clearing would be required for permissible uses in the locality, there is no evidence that the clearing of developed properties or other sites observable on the view is lawful. On that basis, while it could be accepted that that clearing is part of the existing character of the locality, and will remain part of that character, I would not put significant weight on clearing for existing housing development in the locality to support the clearing for the APZ proposed for this development. As Mr Grech conceded, in considering the requirement in section 3.3.2 of the DCP to promote development sympathetic to the existing character of the locality as well as the landform, vegetation, soils and geology of the site, there are constraints for this site, in particular bush fire and flooding and the type of vegetation on the site. Having regard to those constraints, I am not persuaded that the proposed development is consistent with the objective for new development in section 3.3.2 of the DCP of protecting and enhancing sensitive environs.

Conclusion

81. Section 79C(1) of the Act requires consideration of (b) the likely impacts of the proposed development, including environmental impacts on both the natural and built environments, and (c) the suitability of the site for the development. The provision of an APZ for the proposed development that meets the bush fire protection requirements of PBP for a special fire safety protection purpose requires clearing of trees and ongoing understorey and vegetation management on the site of the proposed development, on five other lots, and on the Council road reserve. The applicant has not established that exceptional circumstances exist so as to permit the use of these adjoining lands to meet the APZ requirements. While the proposed development is a small-scale motel, compliant with height and FSR controls, the site is small. The construction of the facility and the creation and maintenance of the APZ impact on ecologically significant vegetation communities including EECs on the site and surrounding land; and managing potential ongoing impacts requires the preparation of and compliance with the management plans and strategies outlined above. The ecological impacts of the proposed development do not achieve the objectives of section 4.1 of the DCP or the aims of SEPP 71; and the proposed development is not consistent with the objective for new development in the RU2 zone specified in section 3.3.2 of the DCP of protecting and enhancing sensitive environs.

82. The fact that the development cannot provide the required APZ on the site, the constraints of the site in terms of the location of EECs and other ecologically significant vegetation communities, and the requirement for clearing and ongoing disturbance of vegetation not restricted to the site, mean that the site is not suitable for the proposed development. Development consent should be refused. This conclusion means that it is not necessary to resolve the outstanding matters in dispute between the parties as to the conditions that should be imposed on any development consent, including whether the Council’s condition 10 requiring raising and widening of Myall Street should be imposed, or the other matters raised in the contentions including the weight to be given to the amendment of the LEP.

83. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application DA269/2015 for a three storey motel comprising five motel units and a manager’s suite, with parking for six vehicles, at 10 Myall Street Pindimar, is refused.

3. The exhibits are returned except for exhibits 1, 20, A, B, G, J and N.

Linda Pearson

Commissioner of the Court

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Decision last updated: 08 July 2016