Montego Cay Pty Limited v Warringah Council

[2005] NSWLEC 288

Land and Environment Court

of New South Wales

CITATION:

Montego Cay Pty Limited v Warringah Council [2005] NSWLEC 288

PARTIES:

APPLICANT
Montego Cay Pty Limited

RESPONDENT
Warringah Council

FILE NUMBER(S):

11450 of 2004

CORAM:

Brown C

KEY ISSUES:

Development Application :- construction of access road - whether consistent with Desired Future Character statement - impact on native vegetation - impact on natural landforms - whether consistent with general principles of development

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Warringah Local Environmental Plan 2000

CASES CITED:

RSL Veterans' Retirement Villages Limited v Warringah Council [1998] NSWLEC 100;
Mackenzie v Warringah Council [2002] NSWLEC 131;
DEM Gillespies Pty Limited v Warringah Council [2002] 124 LGERA 147;
Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council 53 LGRA 322

DATES OF HEARING:

2, 3/05/05

 
DATE OF JUDGMENT: 

06/03/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Leggat, barrister
SOLICITORS
Gadens

RESPONDENT
Mr B Preston SC
SOLICITORS
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

3 June 2005

11450 of 2004 Montego Cay Pty Limited v Warringah Council

JUDGMENT

Introduction

1 This is an appeal against the refusal of Development Application No. 2004/0460 by Warringah Council (the council) for the construction of an access road to an approved, but not yet constructed, retirement village off Lantana Ave, Wheeler Heights.

2 The approved retirement village forms part of an existing larger retirement village operated by the RSL Veterans’ Retirement Villages Limited.

3 The location of the proposed access road was inspected on the morning of the first day of the hearing with representatives from both parties. A number of local residents also provided their evidence at this time.

4 For reasons set out in the judgement I have concluded that the appeal should be dismissed and development consent refused.

Background

5 On 28 May 1988, Pearlman CJ upheld an appeal (the 1998 approval) that allowed the construction of a retirement village on land the subject of this appeal (RSL Veterans’ Retirement Villages Limited v Warringah Council [1998] NSWLEC 100). The proposal, in part, was described as:

The proposed development is a new retirement village (" the new village") to be known as "Greenhaven". It is to contain 130 x 2 bedroom self-care units together with a common clubhouse facility. Access is to be via a connector road which will connect with the existing village. In turn the connector road will connect with Lantana Ave. The emergency access and egress is to be provided via James Wheeler Place.

6 In granting the approval, the Court imposed the following relevant conditions:

• The existing road system within the Existing Village, including Snake Gully Crescent, shall be upgraded to a standard commensurate with its function as a connector road for the Development. Such upgrading shall have regard to maintaining the amenity of the existing residents. Details shall be submitted with the civil engineering plans referred to in condition 10.14 (Condition 3 (a)).
• Construction access is to be limited to the Site with the access site points to be approved by council (Condition 7.6).
• Details of heavy goods movements to the Site to be submitted (Condition 10.11).
• Operational details of the emergency access to James Wheeler Place to be submitted (Condition 10.19).

The site and locality

7 The proposed road is located at the cul – de - sac section of Lantana Ave. Part of the access driveway is within the unformed section of Lantana Ave and part within land controlled by the RSL Veterans’ Retirement Villages Limited (the RSL land) (see Attachment 1).

8 The section of the site within the Lantana Ave road reserve consists of generally disturbed land with heavy weed infestation for the first 70 metres. Further to the west, the land falls steeply, being traversed by a ridgeline that runs generally in a north - south direction through the Lantana Ave road reserve and continuing into the RSL land. This area contains remnant bush land with some weed infestation. Exposed boulders and rock outcrops are prevalent in this area.

9 The section of the proposed access road in the RSL land is made up of the lower slopes of the ridgeline and has a moderate to gradual slope. The land to the west continues to fall gradually to the area of the proposed Greenhaven development.

10 The existing retirement village dominates the locality with detached residential dwellings on its periphery.

The proposal

11 The proposal will extend Lantana Ave a further 70 metres from the existing cul-de-sac within the existing road reserve. The proposed access driveway will then turn north-west for a distance of approximately 264 metres across the RSL land to join the proposed Greenhaven development.

12 The proposed access driveway will have a 6.5 metre wide carriageway within a 10 metre wide road formation. During construction of the Greenhaven development access will only be available for construction related traffic.

13 The Court was advised that at the conclusion of the construction works, the road pavement is to be reduced to 5.5 metres and provided with a final bitumen seal. A 1.2 metre wide footpath will be provided on the eastern side of the road, with five pedestrian rest points evenly spaced along the road alignment. The proposed access will function as a "shared zone" with a 10 kilometre per hour speed limit and will be used as the primary vehicular and pedestrian entry to the Greenhaven development. Notwithstanding the advice given to the Court on the road design, the application plans did not fully reflect this description.

14 It is anticipated that the access drive way will accommodate a peak hour traffic flow of 27 vehicle trips per hour. During off-peak hours traffic flows will generally not exceed 12 vehicles trips per hour.

15 The proposal does not seek to amend the access arrangements provided in the 1998 approval.

Planning controls

16 Warringah Local Environmental Plan 2000 (the LEP) categorises its uses according to the level of compatibility with the Desired Future Character Statement (DFC Statement) in the relevant Locality Plan. The proposed development falls largely within Locality B6 War Veterans and partly within Locality B7 Narrabeen Lake Suburbs.

17 The B6 DFC Statement says:

The War Veterans locality will continue to provide housing for older people and associated uses to meet the needs of residents within the locality.

Future development will respond to the prominence of this locality by keeping buildings below the predominant tree-line when viewed from the Narrabeen Lake viewing catchment. Articulated building forms, landscaping and colours will combine to break up the apparent building mass and reduce the impact of new development on long-distance views of the locality. The redevelopment of existing buildings so that the visual presence in Narrabeen Lake viewing catchment are reduced will be strongly encouraged.

The scale and height of development along Veterans Parade and Lantana Avenue will be consistent with the adjacent established development and buildings are to address the street.

New buildings will be grouped in areas that will minimise disturbance of vegetation and landforms. Bushfire hazard reduction measures and stormwater detention required as a result of development will be confined to the locality.

Visually and ecologically significant vegetation species and communities and significant natural landforms will be preserved in their natural state. There will be no development within areas within the locality shown cross-hatched on the maps, except for pathways and other passive recreational purposes and the existing approved vehicular access.

18 The land affected by the proposed road within the B6 locality falls within the crosshatched area on the maps. Attachment 2 provides an extract of the map and for clarity; the approximate location of the proposed road is shown as a dotted line. Development on land shown as crosshatched, other than for the purposes of the bush fire hazard reduction is nominated as a Category Three use. A Category Three use is described in notes to the LEP as "development presumed to be generally inconsistent with the desired future character of the locality". The existing approved Greenhaven development is a Category One use.

19 The B7 DFC Statement says:

The Narrabeen Lake Suburbs will remain characterised by detached style housing in landscaped settings interspersed by a range of complimentary and compatible uses which are compatible with the residential nature of the locality. The land occupied by the Cromer Golf Club will continue to be used only as a recreational facility.

Future development will maintain the visual pattern and predominant scale of the existing detached housing in the locality. The streets will be characterised by landscaped front gardens and consistent front building setbacks. Unless exemptions are made to the housing density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration on the existing allotments in the locality.

The spread of indigenous tree canopy will be enhanced where possible and the natural landscape, such as rock outcrops, remnant bush land and natural watercourses will be preserved. The use of materials that blend with the colours and textures of the natural landscape will be encouraged. Development on hillsides, or in the vicinity of ridgetops, must integrate with the landscape and topography.

The locality will continue to be served by the existing the local retail centres any area shown on the map. Future development in the centres will be in accordance with the general principles of development control listed in clause 39.

20 The land affected by the proposed road within the B7 locality is a Category Two use because it is not for a purpose specified in Category One or Category Three.

21 Clause 12(1) of the LEP requires the proposed development to be consistent with any relevant general principles of development control in Part 4 the LEP. The relevant general principles of development control are:

56 Retaining unique environmental features on-sites

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

In particular, development is to be designed or incorporate or be sympathetic to environmental features such as rock outcrops, remnant bush land and watercourses.

57 Protection of existing flora
Development is to be designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species.

77 Landfill

Landfill is to have no adverse impact upon the visual and natural environment or adjoining and surrounding properties.

In particular:

• ….
  

22 Clause 12(3) of the LEP requires Category Two and Category Three uses to be consistent with the DFC Statement although nothing in the description in the desired future character statement creates a prohibition on the carrying out of development.

23 Clause 15 states that consent may be granted to a Category Three use only if the Court has considered a statement of environmental effects that includes the items listed in Schedule 15.

24 Clause 16 deals with existing Category Three development and specifically alterations and additions to, or the rebuilding of a building or the extension or intensification of an existing Category Three development. In certain circumstances consent may be granted even if the development is not consistent with the desired future character of the locality.

The issues

25 The council filed a Statement of Issues containing 8 issues. These can be grouped into the following main areas:

1) whether the proposed development is consistent with the B6 DFC Statement,
2) whether the proposed development is consistent with the B7 DFC Statement,
3) whether the proposed development is consistent with the general principles of development control in cll 56, 57 and 77,
4) whether the proposed development has the benefit of cl 16, and
5) whether the proposed development has provided sufficient information to satisfy cl 15(1) of the LEP.
The evidence

26 The council provided evidence from the following:

• Ms Deborah Laidlaw, town planner,
• Mr Stephen Downes, stormwater engineer,
• Mr Anthony Colebrander, geotechnical engineer, and
• Mr John Hewitt, traffic consultant.
  

27 Additionally, the Court heard from a number of local residents on site opposing the road. The Court also had the benefit of a bundle of documents containing further objections when the development application was advertised by the council.

28 The applicant provided evidence from the following:

• Mr Nick Juradowitch, town planner,
• Mr Mark Lawrie, civil engineer,
• Mr David Dickson, geotechnical engineer,
• Mr John Constandopoulous, civil engineer,
• Mr Robert Varga, traffic consultant,
• Mr John O’Grady, landscape architect, and
• Mr Mark Relf, access consultant.

29 The parties also agreed to the appointment of Associate Professor Paul Adam as the Court appointed ecological expert.

30 Joint reports were prepared and resulted in general agreement on the stormwater and design issues and limited disagreement on the geotechnical issues.

The assessment approach

31 Mr Brian Preston SC, the councils advocate and Mr Craig Leggat, the applicant’s advocate agreed that cll 12(1) and 12(3) establish jurisdictional pre - conditions that must be satisfied before a consent authority can consider the merits of the application.

32 Clauses 12(1) and 12(3) require a finding of consistency with their relevant requirements. The Court has addressed the meaning of "consistent with", differently in relation to the LEP. Pain J in Mackenzie v Warringah Council [2002] NSWLEC 131, at par 99, applied the meaning "not antipathetic, nor incompatible or inconsistent with" whereas Bignold J in DEM Gillespies Pty Limited vWarringah Council [2002] 124 LGERA 147 at 166 [7] applied the meaning of "agreeing or accordant; not self-imposed or self-contradictory; consistently adhering to the same principles, course, etc"

33 Mr Preston submitted that in this case the difference was not critical given the terms of the B6 DFC Statement although there are reasons why the meaning applied in DEM Gillespies should be used. It was his submission that if tested under either under the Mackenzie meaning or the DEM Gillespies meaning, the proposed development could not be seen to the consistent with the B6 DFC Statement.

34 Mr Leggat also did not seek to rely on a particular meaning but submitted that under either test, the proposed development would be consistent with the B6 DFC Statement.

35 Mr Leggat took the Court on a particularly forensic examination of the wording in the B6 DFC Statement however I am not convinced that it was necessary or overly helpful. The manner in which I propose to address the interpretation of the B6 DFC Statement is set out in the judgement of Cripps J in Hecar Investments No. 6 Pty Limited v Lake Macquarie Municipal Council [2002] 53 LGERA 322, where His Honour states (at 323):

I adopt, with respect, the observation of Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 923, 924 that when interpreting delegated legislation, the court ought be concerned with practical considerations rather than construing it by meticulous comparison of the language of the various provisions such as might be appropriate in construing sections of an Act of Parliament and that if that language is capable of more than one interpretation, a court ought discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practical result.
Is the proposal consistent with the B6 DFC Statement?
The council’s evidence

36 Ms Laidlaw states that the fundamental thrust of the B6 DFC Statement, particularly for the crosshatched area, is captured by the description "visually and ecologically significant vegetation species and communities and significant natural land forms will be preserved in natural state". She comes to this conclusion because the land is not part of the existing residential area nor part of the area identified for building work in the 1998 approval, and as such those parts of the DFC Statement that relate to the built environment are not relevant.

37 Additionally, Ms Laidlaw notes the 1988 approval pre - dates the making of the LEP and consequently the DFC Statement reflects the approval by restricting any development to the area not shown crosshatched. The delineation of the crosshatched land had been the subject of intensive investigation as to its ecological and natural qualities as part of the hearing before Pearlman J. Attachment 3 provides an overlay of the crosshatched area boundaries and the building layout in the 1988 approval. Even though the crosshatched area was designed to mirror the 1988 approval there are number of small encroachments. These encroachments however do not challenge the intent of the DFC Statement.

38 Ms Laidlaw further states that the DFC Statement addresses the preservation of vegetation and land forms in a more general manner, rather than referring to "threatened species" and "endangered ecological communities". In her opinion, if the DFC Statement sought to include the "threatened species" and "endangered ecological communities" it would have clearly spelt this out in the DFC Statement.

39 In her assessment the vegetation and landforms on the site of the proposed new road constitute "visually and ecologically significant vegetation species and communities and significant natural land forms". As these will not "be preserved in natural state", Ms Laidlaw concludes that the proposal is fundamentally inconsistent with the DFC Statement and antipathetic to it’s planning intent.

The applicant’s evidence

40 Mr Juradowitch states that the proposed access is ancillary to the 1998 approval, at least for that area of the site located outside the crosshatched area. He describes the road as being minor in nature, in context with the existing and approved aged housing development and occupying less than 3% of the bushland on-site.

41 He relies on the evidence of the applicant’s environmental experts to conclude that the proposed access will have minimal impact on visually and ecologically significant species and communities and significant landforms. Visual impacts are further reduced by proposed landscaping and bush land regeneration.

42 In his assessment, the proposed road is consistent with the underlying objectives of the DFC Character Statement that allow for approved vehicular access if it can be constructed without significantly impacting on the integrity of identified significant species and landforms. Importantly, the proposed access will also serve as a worthwhile recreational facility for residents of the village, improving their access around the site and to nearby services and bush walks.

43 While maintaining that the proposed access is not inconsistent with the DFC Statement, Mr Juradowitch states that the proposal can be considered under cl 16(2) as this clause allows a consent to be granted "even if the development is not consistent with the desired future character of locality".

Findings

44 In considering the issues in the appeal, the Court was taken on a comprehensive inspection of the location of the proposed road. Accompanying the inspection were the experts from both parties. The inspection involved walking the centre line of the road that was marked at 10 metre intervals. At most 10 metre intervals, an explanation was provided to the Court on the extent of the proposed road, including batters and how they were to be treated, the modification of the landform, the loss of vegetation, the finished level of the road and if the road would be visible from surrounding areas.

45 I agree with Ms Laidlaw that the relevant part of the B6 DFC Statement is the last paragraph. The other paragraphs relate principally to the erection of buildings and while not irrelevant, clearly do not have the same level of importance in these proceedings.

46 In accordance with cl 12(3), the proposal must be consistent with the DFC Statement. The relevant paragraph raises a number of separate considerations; namely the proposal must be consistent with:

• the preservation of visually and ecologically significant vegetation species in their natural state,
• the preservation of significant natural landforms in their natural state,
• no development in the crosshatched areas except for pathways and other passive recreational purposes and
• no development in the crosshatched areas except for approved vehicular access.

47 I will deal with these matters separately.

Visually and ecologically significant vegetation species

48 Professor Adam notes that the Disturbance Areas Diagram provides for a disturbance area of 5744 square metres. He identifies the vegetation along the proposed road as Angophora woodland and Bangalay slopes forest. Some Bangalay Alluvial forest adjoins the approved Greenhaven development however the road affects a minimal, if any part of this community.

49 He acknowledges the Angophora woodland and Bangalay slopes forest are not endangered ecological communities on the schedules of the Threatened Species Conservation Act 1995 however the loss of vegetation in the area of the proposed road is still a concern. Professor Adam sees the communities as having significance because of their restricted distribution, high local conservation value and contribution to the habitat quality of the area.

50 Mr O’ Grady states that the proposed road will remove approximately 70 trees, 22 of these trees have been classified as a large trees. He notes that the loss of trees is minimised by the reduction of the zone of construction to its narrowest possible width, the replanting of some species currently found within the road corridor, the provision of offsets through bush regeneration, indigenous tree planting works and sustainable stormwater management. Mr O’ Grady also maintains that is necessary to balance the disturbance of vegetation against the benefits of the proposed road.

51 In addressing visual impact, Mr O'Grady states that the road will have no significant impact on distant views. It will have some impacts on views from the residences fronting Ennerdale Crescent however this would be offset by improvements in visual quality from the proposed bush regeneration works in the vicinity of these residences. Any potential for loss of visual quality would be limited to the immediate vicinity of the proposed road corridor and would be ameliorated by specific design features such as the retention and or reinstatement of natural rock faces.

52 On this specific matter I prefer the evidence from the councils experts. I agree that the reference to "significant vegetation species and communities" is not necessarily a reference to "threatened species" or "endangered ecological communities as defined in the Threatened Species Conservation Act 1995. While the test of consistency is not as onerous as if the preservation of vegetation related to species and communities identified in the Threatened Species Conservation Act 1995 the DFC Statement nonetheless places some considerable emphasis on the retention of the vegetation in the crosshatched area. Ms Laidlaw’s description that the DFC Statement addresses the preservation of vegetation in a more general manner is a sound and practical interpretation of the DFC Statement and consistent with the approach in Hecar Investments.

53 On this basis, I accept that the vegetation that will be lost forms part of a "visually and ecologically significant" area of vegetation even though the vegetation does not fall within the requirements of the Threatened Species Conservation Act 1995. In coming to this conclusion I have also given some considerable weight to the 1998 approval and the reasoning behind the approval. It is clear that the approval was based on the balancing of the natural qualities of the site with the erection of the proposed development. Considerable expert evidence was presented to the Court in establishing the appropriate balance.

54 This expert evidence formed the basis for the B6 DFS Statement. The crosshatched area reflected the Courts findings and restricts development to the area of the 130 self-care units and the clubhouse facility. While not prohibiting development in the crosshatched area, the B6 GFS Statement clearly seeks to restrict development by stating that vegetation will be preserved in its "natural state". Any loss of vegetation must be considered in this context.

55 Mr O’ Grady identified offset works that would address the loss of vegetation. Even putting aside that this is a matter appropriately considered as part of the merit assessment rather than the jurisdictional pre - conditions, there was insufficient evidence to support this approach. The question of offsets was raised late in the proceedings with a few specific details.

56 Mr Juradowitch urged the Court to balance the loss of vegetation with the potential benefits for the future residents of the site. Again, this is a matter appropriately considered as part of the merit assessment rather than the jurisdictional pre – conditions of cl 12(3) of the LEP.

57 For these reasons, I find that the proposed development is inconsistent with the requirement in the B6 DFC Statement requiring "visually and ecologically significant vegetation species …. will be preserved in their natural state".

Significant natural landforms

58 Mr O’ Grady states that the road corridor passes through a length of approximately 140 metres of natural rock outcrop (between chainages 30 and 170) of moderate to very high-quality visual significance. He helpfully provided a Visual Analysis as an addendum to his report that included photographs, a description of the rock outcrop and a measure of visual significance at regular intervals along the route of the road.

59 In his assessment, around 40 metres of the natural rock within the corridor would be substantially visible in its locality. The remainder would be visible only locally from the valley below the corridor. In Mr O'Grady's opinion, measures have been included in the proposal to minimise the visual impacts of the loss of rock outcrops that will occur. These measures include reinstatement and/or retention of natural rock faces and regeneration of bush land.

60 In considering this matter, I did not understand the parties to disagree on the categorisation of the rock outcrops as significant natural landforms. With the benefit of the site inspection and an explanation of the amount of impact on the rock outcrops at various points along the proposed road, I have little trouble in concluding that the proposal will have a significant impact on this natural feature of the site. In coming to this conclusion, I acknowledge that the applicant has attempted to minimise this impact by removing only the necessary part of the rock outcrop to allow for the construction of the road. Even so the amount of excavation is significant and extensive.

61 The engineering drawings (Exhibit E) identify the area of the rock outcrop to be excavated between chainages 30 and 170. The cut ranges from 2.4 metres at chainage 30 to 8.1 metres at chainage 150. The face of the cut is greater because of the need to provide a batter. For example, the length of the face of the cut at chainage 150 is 10.2 metres. Even though the most recent plans provide for the retention of part of the rock outcrop on the downslope side of the road to provide some screening for the cut, in my view this measure still does not address the excessive excavation required for the road.

62 I also note the requirement for a 2 metre wide Geotechnical Safety Zone created upslope of the cut batters where all loose and unstable rocks, trees and other stability hazards are to be removed.

63 For these reasons, I find that the proposed development is inconsistent with the requirement in the B6 DFC Statement requiring "significant natural landforms will be preserved in their natural state".

Pathways and other passive recreational purposes

64 Mr Juradowitch states that even though the proposed road extends across the crosshatched area, the evidence of the applicant’s experts suggest that the road will have no adverse impacts on rare or endangered fauna or flora. These experts also indicate that any visual and environmental impacts on ecologically significant vegetation species and communities or significant landforms are modest and within acceptable limits, having regard to the compensatory bush land regeneration and benefits obtained from proceeding with construction traffic off James Wheeler Place.

65 Again, the impacts and compensatory works described by Mr Juradowitch are not matters that can be taken into consideration under cl 12(3) of the LEP.

66 In relation to the B6 DFC Statement, the proposed road could not be reasonably described as a pathway or a passive recreational purpose. While the road may be used by future residents of Greenhaven for pedestrian access, it is clearly has two principle purposes. Firstly, to provide construction traffic access and secondly, to provide permanent vehicular access. I do not accept that even under the most liberal interpretation, the road could be described as a pathway or an area used for passive recreational purposes.

67 For these reasons, I find that the proposed development is inconsistent with the requirement in the B6 DFC Statement requiring " no development within areas within the locality shown cross-hatched on the maps, except for pathways and other passive recreational purposes".

Existing approved vehicular access

68 The proposed road is not a road shown on the 1998 approval or any other approval and as such is inconsistent with the requirement in the B6 DFC Statement requiring " no development within areas within the locality shown cross-hatched on the maps, except for…. the existing approved vehicular access".

69 On the basis of the findings in the preceding paragraphs and in accordance with cl 12(3)(b), I am satisfied that the proposed development is inconsistent with the B6 DFC Statement and as such consent cannot be granted and the appeal must fail.

70 For completeness I will briefly deal with the other issues raised in the proceedings.

Is the proposal consistent with the B7 DFC Statement?

71 The B7 DFC Statement largely addresses the suburban residential development within its locality rather than the natural bush land character, although some reference is made to the enhancement, where possible of the spread of indigenous tree canopy and the preservation of the natural landscape, including rock outcrops, remnant bushland and natural watercourses.

72 In considering whether the proposal is consistent with the B7 DFC Statement, Ms Laidlaw takes into account that the natural vegetative qualities of the land affected by the road are disturbed and that only a minor amount of further disturbance would be required at the edge of the bush land. In her opinion, the degree of incompatibility with the B7 DFC Statement is less when compared to the B6 DFC Statement. She states that the road is potentially work that could be held to be "not antipathetic to" or "not fundamentally inconsistent with" the planning intent of the B7 DFC Statement. Ms Laidlaw concludes that it is essentially meaningless to consider this small section of the new road in isolation from the remainder of the road.

73 Mr Juradowitch relies on the very limited area of the proposed road within this locality, the lower quality of bushland that is affected and the proposed compensatory works to conclude that the proposal achieves a satisfactory level of consistency with the B7 DFC Statement.

74 Based on the limited area of disturbance, the location within a road reserve and the generally poor condition of this part of the road reserve, I accept that the proposed development is consistent with the B7 DFC Statement.

Is the proposal consistent with the general principles of development?
56 Retaining unique environmental features on-sites

75 This general principle of development requires a development "to retain and complement any unique environmental features of its site" and "be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland …"

76 Mr Leggat submitted that the Court should accept that the design complements the natural sandstone outcrops by minimising the cut into the outcrops and the retention of any part of the outcrops not required for the road. Mr Leggat also questions whether the natural sandstone outcrops are in fact unique, based on the evidence of Professor Adam.

77 In my view, this submission must be rejected. The general principle of development requires the retention of any unique environmental features and not just the minimisation of any impact on these features. In my understanding of this clause, unique does not necessarily have the meaning of an iconic natural feature but more the natural features found in the B6 locality. In my reading, this is not inconsistent with Professor Adam’s evidence.

78 In this context, I have little trouble in concluding that the existing sandstone outcrops are unique environmental features. I note that Mr O'Grady classifies some of the rock outcrops as having very high quality. I also do not accept that the road, under any assessment can be seen to complement or is sympathetic to the rock outcrops and remnant bush land due to the excessive amounts of the rock outcrops that are proposed to be removed (see pars 58 to 63).

79 On the basis of the findings in the preceding paragraph and in accordance with cl 12(1), I am satisfied that the proposed development is inconsistent with the general principle of development in cl 56.

80 57 Protection of existing flora

This general principle of development requires a development "to minimise the impact on remnant indigenous flora".

81 Even though the proposed road minimises impact on existing flora within the proposed corridor, the assessment required under this clause needs to consider its location in an area where there are significant restrictions on development. In this context, the proposed road could not be seen to minimise impact on remnant indigenous flora (see pars 48 to 57).

82 On the basis of the findings in the preceding paragraph and in accordance with cl 12(1), I am satisfied that the proposed development is inconsistent with the general principle of development in cl 57.

77 Landfill

83 This general principle of development requires landfill to have "no adverse impact " on the visual and natural environment.

84 The amount of fill proposed is relatively small when compared to the levels of cut required to construct the road. Even though the test in this clause is relatively high by requiring no adverse impact, I am not convinced that the levels of fill create an adverse impact on the visual and natural environment.

85 On the basis of the findings in the preceding paragraph and in accordance with cl 12(1), I am satisfied that the proposed development is consistent with the general principle of development in cl 77.

Clause 16(2) of the LEP

86 Clause 16(2) relevantly provides:

Development applications for existing Category Three development consisting of:
(a) alterations or additions to, or the rebuilding of, a building, or
(b) the expansion or intensification of the existing Category Three development
when, in the opinion of the consent authority, is of a minor nature and has not, to any significant extent, changed the scale, size or degree of any building or land use, may be granted consent even if the development is not consistent with the desired future character of the locality.

87 Mr Leggat submits that the proposed development has characteristics that bring it within the type of development that can be dealt with by this clause. The footprint will be less than 3% of the total area of the site even after the construction of the Greenhaven development, the access way is merely a link between two existing roads and the proposed development is relatively insignificant in comparison to the existing approved development.

88 Mr Leggat further submits that the present development application is on any reasonable objective view a minor extension of the development approved in 1988. The nature of this clause is ignored and given no operation, if the nature, scale and size of the proposed village is not used as the basis for the assessment required by cl 16(2).

89 Mr Preston submits that cl 16(2) only operates if the preconditions in cl 16(2)(a) and (b) are satisfied. He submits that the proposal does not involve alterations or additions or rebuilding of a building (16(2)(a)) or the expansion or intensification of the existing Category Three development (16(2)(b)). The approved development is not a Category Three use and even if a minor part of the proposed development is located within the crosshatched area, only that very minor part could be classified as a Category Three development. The balance would remain as Category One. As such, the proposal cannot be fairly or reasonably described as being an extension or intensification of a Category Three development. Rather, it is a new vehicular access for the whole of the approved development.

90 On this matter I agree with the submissions of Mr Preston and find that the provisions of cl 16(2) are not available to the applicant.

Sufficient information to satisfy cl 15(1) of the LEP

91 Mr Preston submits that there is no document or documents addressing the requirements contained in cl 15(1), particularly items 4, 5(a), (c) and (d) and 7. As this precondition has not been met, the Court cannot reach the stage of assessing the merits of the proposal.

92 Considering the previous findings where the development application has found to be unacceptable, it is unnecessary for the Court to make any specific findings on this issue.

Orders

93 For the foregoing reasons, the Orders of the Court are:

1) The appeal is dismissed.
2) Development Application No. 2004/0460 for the construction of an access driveway to an approved, but not yet constructed, retirement village off Lantana Ave, Wheeler Heights is refused.
3) The exhibits are returned with the exception of exhibits 1 and 2.
___________
G T Brown
Commissioner of the Court