Project Venture Management Pty Limited v Warringah Shire Council

[2006] NSWLEC 754

Land and Environment Court

of New South Wales

CITATION:

Project Venture Management Pty Limited v Warringah Shire Council & Anor [2006] NSWLEC 754

PARTIES:

APPLICANT
Project Venture Management Pty Limited

FIRST RESPONDENT
Warringah Council

SECOND RESPONDENT
Duffys Forest Residents Association Incorporated

FILE NUMBER(S):

11361 of 2005

CORAM:

Moore C

KEY ISSUES:

Development Application - Subdivision :-
Bushfire risk
Desired character
Threatened species

CASES CITED:

Project Venture Management Pty Limited v Warringah Shire Council [2006] NSWLEC 753;
Retirement by Design Pty Limited v Warringah Shire Council [2006] NSWLEC 656 ;
Mete v Warringah Council [2004] NSWLEC 273;
Mison v Randwick Municipal Council (1991) 23 NSWLR 734

DATES OF HEARING:

24 and 25 August, 31 October 2006

EX TEMPORE JUDGMENT DATE:

10/31/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr C McEwen SC
INSTRUCTED BY
Saunton & Beattie

FIRST RESPONDENT
Mr J Maston, barrister
INSTRUCTED BY
Wilshire Webb

SECOND RESPONDENT
Ms J Walker, solicitor
Environmental Defenders Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

31 October 2006

05/11361 Project Venture Management Pty Limited v Warringah Shire Council & Anor

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Warringah Shire Council (the council) on 11 October 2005 of Development Application 2002/815. The application concerned an originally proposed subdivision of Lot 446 DP48650 at Lot 446 Joalah Road, Duffys Forest (the site) to be subdivided into eight Lots, being seven residential Lots and one community title Lot.

2. The area of Lot 446 is ~ 27 ha. The site is an extremely irregularly shaped allotment in what might broadly be described as a butterfly shape with a narrow waist in the north central portion of the site.

3. The two major elements of the site are, in broad terms, triangular in shape, with the apexes of the triangles pointing to the west and the bases running approximately north/south.

4. The site is predominantly bushland subject to a number of elements of minor clearing, primarily for the bushfire protection trail purposes. The site is traversed, across the entirety of its length (with the exception of a small intrusion into Ku-ring-gai Chase National Park, which park is located to the west of the totality of the allotment) by a fire trail running from the end of Booralie Road through to Joalah Road.

5. The site slopes, in general terms, toward the west in each of its elements.

6. There is a significant creek line running through the centre or the waist of the site and there are a number of other creek and drainage lines throughout the site.

7. It is predominantly what Mr Free, a bushfire expert who gave evidence on behalf of the second respondent, referred to as typical Hawkesbury sandstone country. Its topography is irregular, with a number of steeply sloping rock outcrops, escarpments and ledges.

8. There is at least one site of Aboriginal significance on the site.

9. The site is adjoined, along its long eastern boundary, by residential development in what is known, under the Warringah Local Environment Plan 2000 (the LEP), as the A2 Booralie Road Locality.

10. The matters that were traversed during the first hearing of this matter, on 24 August, caused me to conclude, on that occasion, as is now the practice in Class 1 proceedings of the Court, that the application as presently before the Court at that time was not capable of consent but that with modification was likely to be the subject of consent.

11. The hearing on 24 August was devoted entirely to a view of the site and the surrounding area, including an inspection of Waratah Park, being an environmental and conservation oriented facility located to the south.

12. The management of Waratah Park were kind enough to make available their facilities for the purposes of hearing some further evidence and the enable discussions between the parties to take place.

13. During the course of the initial phase of the hearing, the organisation which is now the second respondent, the Duffys Forest Residents Association Incorporated, initially sought and was granted limited leave to participate in the proceedings on the basis of leading evidence, cross examining and making submissions with respect to bushfire issues, those not being issues pursued at that time by the Council (although raised originally in the Statement of Issues). Subsequently, during the earlier phase of the proceedings, a broader and unlimited leave to participate but not to be a party was granted to what is now the second respondent.

14. Prior to the most recent hearings, in response to a contested Notice of Motion, I determined pursuant to s 39A of the Land and Environment Court Act that, consistent with the public interest, it was appropriate to grant the second respondent’s application to be joined as a party [see Project Venture Management Pty Limited v Warringah Shire Council [2006] NSWLEC 753].

15. During the initial pleadings in the proceedings, the council filed a Statement of Issues that raised a wide number of issues concerning the design of the proposed subdivision (as it was at that stage). These issues might be summarised as being that:

• the [then] design of the subdivision was not consistent with the desired future character statement for the Booralie Road locality statement contained in the LEP; and
• there were unacceptable impacts on particular species of flora and fauna that required special consideration pursuant to the Threatened Species Conservation Act 1995 – they being the southern brown bandicoot; Rosenberg’s goanna; and a plant known as tetratheca glandulosa.

16. During the course of the initial hearing, I heard evidence from ecological experts retained by the applicant, a court-appointed ecological expert and such an expert giving evidence on behalf of the council.

17. During the course of the inspection and the subsequent discussions which took place at Waratah Park, a number of proposals emerged for the amendment of the plans in response to the issues that were raised and a number of concerns that I expressed arising out of the written objections provided by the residents and some of the oral evidence given by those objecting to the proposal.

18. Effectively, it was my view at that time that the northernmost allotment needed to have its proposed dwelling footprint relocated to that element of the site further to the north-east; that the then proposed Lot 8 on the northern side at the western end of the southern part of the site was entirely inappropriate for reasons of impact within the site and impact by viewing from public open spaces in Ku ring-gai National Park to the west; and that other redesigns needed to take place to mitigate the potential impact on the tetratheca and to accommodate a number of other matters relating to the fauna that was the subject of the Statement of Issues.

19. Further, I was of the view that a redesign of the subdivision would enable significant additional conservation of one of the wet heath areas that would otherwise have been impacted by [the then proposed] Lot 5 of the subdivision.

20. As a consequence of that, when the hearing resumed, the applicant sought and was granted leave, without objection, to amend the application so as to withdraw the subdivision in the southern portion of the site further to the south and to the east; to remove the Lot which I have referred to as proposed Lot 8; and to undertake a number of other ameliorative measures.

21. The house site on proposed Lot 2 at the northern end of the subdivision was also moved, resulting in a significant contraction of the originally proposed bushfire asset protection zone, although at the cost of some of the tetratheca located in that portion of the site.

22. After further discussions and evidence in the second phase of the hearing, the applicant sought and was granted further leave to amend with respect to the location of the additional fire trail proposed within the asset protection zone of Lot 7 in order to avoid significant construction being required across and down the escarpment in that vicinity and in a number of other minor aspects.

23. In response to the various amendments which took place between the two phases of the hearing and a further public display period for the revised proposal, two matters occurred. The first is that there were a number of further public submissions received opposing the revised plan – submissions that were placed before the Court and to which I have had regard; and secondly, as a consequence of the revisions, the council resolved that it no longer objected to the proposed subdivision.

24. However, as a consequence of the granting to what is now the second respondent the right to participate as a party in the proceedings, effectively all those matters which were originally pressed by the council, together with a number of other related matters, have been pressed by the second respondent as reasons why the proposed development ought not be approved despite the now acquiescence of the council in the proposal.

25. It is necessary at this stage to set out briefly the planning context within which I am obliged to consider the application.

26. The LEP is an unusual document, being a document that does not have a conventional land use zoning table contained in it, although as I held recently in Retirement by Design Pty Limited v Warringah Shire Council [2006] NSWLEC 656 (consistent with a decision of Talbot J in Mete v Warringah Council [2004] NSWLEC 273), the locality statement and associated elements contained in it are, although not a conventional zoning table, nonetheless an unconventional zoning table and each of the localities can appropriately be regarded as a zone.

27. In that context, it is pertinent to note that cl 21 of the LEP provides that land can be subdivided as long as the resulting allotments can be developed in accordance with the plan (and is then subject to an exception which is not relevant in this case). Subdivision is categorised by cl 14(2) of the LEP as what is known as Category 2 development for the purposes of cl 12 of the LEP.

28. Clause 12(3)(b) of the LEP requires, before Category 2 development is carried out, that the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant locality statement (and continues with a further not relevant qualification).

29. In this case the desired future character is set out in the locality statement for Locality A2, Booralie Road. The locality statement’s desired future character is described by the LEP in the following terms:

The Booralie Road locality will remain a non urban area consisting of detached style housing in distinctly non-urban settings and occasionally low intensity, low impact business or community uses that are compatible with the non urban nature of the locality and predominant scale of existing development.

The impact of new development on views from the adjacent national park will be minimised by the use of articulated building forms, generous landscaped spaces around buildings and building materials that blend in with the colours and textures of the natural landscape.

Emphasis will be given to protecting and, where possible, enhancing the natural landscape, including landforms and vegetation. The increased planting of indigenous canopy trees will be strongly encouraged.

30. As I understand the case that is advanced by the second respondent, it is that the proposal offends against a number of the elements of the desired future character statement:

• first is that the setting of the housing that will result from the proposed residential allotments will not, at least with respect to the southern portion of the site, result in housing in distinctly non-urban settings;
• second is that the impact of the proposed development on views from the national park is not capable of being minimised by those matters set out in the second paragraph of the locality statement;
• third is that the proposal does not protect and certainly does not enhance the natural landscape, including landforms and vegetation; and
• finally is that the planting of indigenous canopy trees proposed by the applicant as part of the proposal is not capable of being achieved.

31. As I understand the position, the second respondent then says that, as a consequence of any one of those non compliances, I ought refuse the application and that, certainly on what it says is the aggregation of those non compliances, in its view I should refuse the application.

32. With respect to the first test required in the subdivision clause of the LEP, namely compliance with the allotment size, the requirement set out in the housing density provision for Booralie Road is a minimum housing density of one dwelling per two hectares of site area, excluding any access handles.

33. I am satisfied that each of the six residential allotments satisfies that prescription. As a consequence the subdivision, even with the revision to Lot 7 as proposed by the applicant in the most recent amendment to the concept plan, the plan still remains compliant. The proposal is therefore permissible with consent, subject to the tests set out in the provision of the LEP for Category 2 development.

34. In addition to the matters that were raised by the second respondent, a number of other matters arise out of the public submissions. One is a more general position with respect to the scope of clearing, and a second relates to, as was also advocated by the second respondent, what it says is an uncertainty with respect to effluent disposal from the site. There were also public submissions concerning the impact on Waratah Park.

35. There was also a submission, which I dealt with during the course of the most recent hearing, from a body entitled the North Shore Horse and Pony Association which indicated that the trail which is located through the site has been used regularly by horse riders and that I should have regard to its likely closure for those purposes.

36. I note at this stage, as I did during the course of the hearing, that:

• the land is privately held;
• such access as might have been granted in the past, either actively or passively, for horse riding purposes along that trail was a matter of grace and favour; and
• as the land was in private ownership, such access was not a matter with which I was capable of dealing; and
• as a necessary consequence, it was inappropriate for me to even consider that issue during the course of these proceedings.

37. There was, also, a matter raised by the Hon Sylvia Hale MLC, a Greens member of the Legislative Council, relating to a number of matters including her concerns as to the impact of the proposal on Aboriginal carvings on the site. The adequacy or otherwise of the information with respect to Aboriginal carvings was also in evidence before me by a letter from the Aboriginal Heritage Manager for a consortium of councils, including the respondent council in these proceedings.

38. I am satisfied, on the basis of the archaeological survey which was in evidence, that the sole Aboriginal site of significance which has been identified on Lot 446 and is contained within the northern portion of proposed Lot 5, is outside the developed area.

39. On the assumption that I am obliged to make if development consent is granted – that a proponent granted development consent subject to conditions will abide by those conditions – that the proposed required exclusion zone fencing for the non-asset protection zone areas of the residential allotments, including Lot 5, and the creation of a public positive covenant in favour of the council in that regard will provide adequate protection to that Aboriginal site.

40. I therefore consider that there is no basis upon which that concern could contribute to any refusal of the development, let alone require the refusal of the development.

41. It is important to note, at this stage, that ~ 12.5 ha of the site, that is the area that is to be in proposed Lot 1, is to be dedicated to the council as public open space and that the council will have rights of access, over those Lots which would otherwise prevent access to Lot 1, for the purposes of management of the public open space or for other emergency purpose access.

42. Because the development also takes place, if approved, in a variety of riparian zones, general terms of approval have been provided by the Department of Natural Resources. They have been incorporated into the proposed conditions of consent.

43. I turn now to what are the substantive issues advanced on behalf of the second respondent suggesting that I ought refuse the appeal.

44. The first of them that is convenient to be dealt with is the question of views of the site from public open space, that being the matter raised by the second paragraph of the desired future character statement.

45. In this regard, I have had the benefit of a series of both photographs and topographic analyses, computer-generated, prepared by Mr White, a resident in the vicinity of the proposal. Although those materials related to an original proposal rather than to the present one, they have been of considerable assistance to me in understanding how development of the site would be perceived if it were to be viewed from various parts of Ku-ring-gai Chase National Park to the west of Cowan Creek, and indeed what one might describe generally as various elements of the Bobbin Head precinct of that National Park.

46. I am satisfied, as I earlier indicated, that the development as originally proposed would have had a potentially unacceptable impact in that regard.

47. The elements of the now proposal that is before the Court that are likely to be capable of being viewed from those locations will be the house on Lot 7 (houses on Lots 6 and 5 being by and large masked by any development on Lot 7); the houses on Lots 3 and 4 (to some extent); and the house on Lot 2.

48. I am satisfied, in that regard, that the houses on Lots 3 and 4 will be observed, as they are at the top of the ridge, as simply being a continuation of the existing settled and urban area and that there is no offence against that paragraph of the desired future character statement with respect to development on Lots 3 and 4. As I have indicated, Lots 6 and 5 would be shielded by the development on Lot 7.

49. The withdrawal, significantly beyond the edge of the steep escarpment on the western portion of Lot 7, means that there will be significantly retained vegetation beyond the asset protection zone on Lot 7, which is in line with the view to the site from Bobbin Head.

50. I am satisfied that, although it is probable that the dwelling on Lot 7 and the fact that there is a dwelling and a habituated area on Lot 7 and beyond it into Lots 6 and 5 will be able to be perceived from the Bobbin Head precinct of Ku-ring-gai Chase National Park, such perception will not be of a significant or significantly adverse impact and that it is capable of being further minimised by the design characteristics of the house that will be proposed for Lot 7 on the subdivision.

51. With respect to Lot 2, although that portion of the site slopes away more consistently and significantly in the direction of the Bobbin Head precinct of Ku-ring-gai Chase National Park, it was obvious on the view that the now location of the dwelling envelope proposed for Lot 2 is quite proximate to the dwelling on the existing private holding immediately to the east and that any development of that portion of the site will simply be perceived as part of the existing development in the vicinity.

52. In that regard, although I acknowledge as a consequence of the evidence of Mr Free and further material made available as a result of a survey plan provided by the second respondent, there will be a greater degree of clearing to the west of the dwelling footprints on both Lots 2 and 7, there will nonetheless be a significant element of canopy retention in the vicinity of both those allotments and a significant degree of protection of the view into those allotments from the Bobbin Head precinct of Ku-ring-gai Chase National Park.

53. I am satisfied that, on the basis of paragraph two of the desired future character statement, there is no ground upon which I could require modification of the development, nor refuse it.

54. With respect to the first paragraph, that is detached styled housing in distinctly non-urban settings, there can be no argument that the housing position proposed for Lot 2 satisfies that, as it is completely removed from the other elements of the subdivision and, despite the proximity of the existing dwelling immediately to the east, there will be no other dwelling in significant proximity to it, and the bushland view of it from any perspective will be distinctly non-urban.

55. With respect to Lots 3 and 4, although the houses are comparatively symmetrically aligned within their allotments, they are in a distinct and separate element of the subdivision from both Lot 2 and Lots 5 and 6 and I am satisfied that those two dwellings will also be perceived as being in a non urban setting, that that is distinct and that is, therefore, compliant with that paragraph of the desired future character statement.

56. If there were to have been a difficulty with the subdivision in this regard, it would arise from proposed Lots 5, 6 and 7.

57. I am satisfied, however, that the spacing between the houses, despite the fact that they will be in what amounts to a continuously linked asset protection zone, is in its context and, to the limited extent that vegetation will be permitted within that asset protection zone, is capable of being perceived as being in a non urban setting – particularly given the requirement on the council as the consent authority for any future development application for dwellings on those allotments to comply with the strictures contained in the second paragraph of the desired future character statement, namely to require articulated building forms and building materials that will blend in with the colours and textures of the natural landscape.

58. Therefore, I am satisfied that the proposed development is consistent with the first paragraph of the desired future character statement.

59. That leaves me to turn to the third paragraph of the desired future character statement. It is clear that the first element of the first sentence, that is protecting, is not an exclusionary process but one which says:

If development is to take place, then the design of that development must protect as much as is capable consistent with a development that is otherwise compliant taking place, the natural landscape including landforms and vegetation.

a n d , as an addendum:

where possible, enhancing that natural landscape.

60. There is little doubt that, in the nature of this application, it is only, to a limited extent with respect to replanting, that there could possibly be anything which is regarded as an enhancement of the natural landscape.

61. However, I am satisfied, to the extent that it is possible to do so consistent with having a development on this site, that there has been considerable and satisfactory regard taken to protecting the landscape including landforms and vegetation.

62. In this regard, the redesign of the proposed fire trail at the western and northern portions of Lot 7 so that it now runs across the escarpment rather than what would otherwise have had to have been a traversing by way of switchback a considerable steep section of the escarpment means that, to the extent that it is possible, compatible with the reasonable development of the site, the first sentence of the third paragraph of the desired future character statement has been satisfied.

63. As originally proposed by the applicant, I had had, assisted by the evidence of Mr Free in this regard, some concerns as to how it would be possible to plant the number of indigenous canopy trees proposed by the applicant within the spaces that were available for those purposes within the asset protection zone, particularly in light of the number of trees that would be removed as a consequence of the construction of the various dwellings.

64. In response to that, Mr Travers, an ecological and bushfire expert who gave evidence on behalf of the applicant, indicated that:

• such planting was not proposed to be confined to those locations;
• planting within the asset protection zones would be confined to those areas that were withdrawn from the perimeter and that were away from exposure to the edge of the asset protection zones;
• but, in his opinion, there were opportunities for some revegetation plantings to take place in other parts of the site.

65. I am satisfied, from what I saw during the course of the view, that there are other locations that have been disturbed along the edges of the existing north-south fire trail (that will be for the very large part within Lot 1) that are disturbed to an extent that is not necessary for the safe operational use or maintenance of that fire trail.

66. There was an element that I observed during the course of the view slightly to the south of the creek crossing in the centre of the site on the western side of the fire trail where there was a disturbed site capable of being used for some revegetation purposes and an examination of the aerial photograph (which was Exhibit 2) shows that there are a number of other places where informal turning circles or turning points have been created –including several in close proximity towards the northern end of the site – which would not be needed to be retained in their entirety and may well be available for revegetation. That is consistent with the view expressed by Mr Travers as to the availability of such revegetation opportunities.

67. I am satisfied, as a consequence, that that element of encouragement contained in the second sentence of the third paragraph of the desired future character statement has been met.

68. I turn to what, in my view, was the most substantive and difficult issue to address in the course of these proceedings – that is the question of bushfire safety.

69. I have been significantly assisted (and, in my view, the future residents of this subdivision have been significantly assisted) by the endeavours of the second respondent, particularly arising out of the survey material prepared by Brunskill McClenahan & Associates on behalf of the second respondent and the work that Mr Free put into his bushfire analysis on behalf of the second respondent.

70. The relevant strictures that I am obliged to consider as to bushfire safety and the like arise out of the provisions of a document published by the New South Wales Government’s Rural Fire Service (the RFS) called Planning for Bushfire Protection.

71. The particular matters which arise out of Mr Free’s analysis and the survey analysis of Brunskill McClenahan & Associates are tests that are set out in ch 4 in 4.2.3 Location of Asset Protection Zones in element (b) with respect to that relating to the location of such zones on slopes of over 18 degrees. There are two elements contained in that prescription. It states:

Asset protection zones should not be located on land steeper than 18 degrees as:

• On land steeper than 18 degrees some management practices are impossible and will become difficult. In addition, the environmental consequences of ground clearing (erosion) may not be acceptable and

• On steeper slopes, the canopy fuels are more readily available to a fire cancelling out the advantage of having an outer protection area.

72. In addition to the evidence given by Mr Free, I have had the benefit of evidence from Mr O’Toole, a Development Control Officer of the RFS and of Mr Travers.

73. The first thing to note with respect to the construction of that provision of Planning for Bushfire Protection is that it is couched, in its terms, as being a discretionary proposal – that is that asset protection zones should not be located rather than in mandatory terms as asset protection zones must not be located.

74. That interpretation, logically available from the words used in Planning for Bushfire Protection, was confirmed by Mr O’Toole as being the approach taken by the RFS – namely that there is a discretion provided as a consequence of those provisions and that the RFS, as a general proposition, exercises that discretion when considering whether to issue a permit for a development or not and does so on a case by case merit assessment basis. That, also, is the basis upon which, pursuant to the Act, I am obliged to consider this proposal.

75. During the course of the final stage of the hearing, Mr Free, Mr O’Toole and Mr Travers undertook a further joint conference on the basis that I accepted the proposition (as I have) that there is a discretion pursuant to 4.2.3(b) of Planning for Bushfire Protection.

76. It was Mr Travers evidence that, with respect to the first of the criteria under that provision, the difficulty of management practices on slopes greater than 18 degrees was mitigated (to an extent making it unnecessary to be a restriction on this proposal) as a consequence of the substantial sandstone escarpment and sandstone substrate in this area making it possible for management practices in fact to be carried out.

77. Mr Free, on my understanding of his position, accepted that that was a possibility; that that was appropriate to be considered; and that he did not press (if there were a discretion arising from Planning for Bushfire Protection – as I have held there is) any concerns with respect to the first of the criteria in 4.2.3(b).

78. With respect to the second of those criteria, there was significant agreement between the three experts as to the scope of appropriate tree retention in order to satisfy it – although Mr Free did express a specific concern with respect to the degree of clearing that was proposed to be required to the west of the dwelling footprints on Lots 2 and 7.

79. In response to that concern, the applicant accepted the proposal that there should be a tree retention rate of one tree per 200 sq m in those portions of each of those two allotments in lieu of the generally accepted prescription of one tree per 100 sq m.

80. Mr Free proposed that there should be a further restriction that required in those two quadrants as were defined during the discussion in the proceedings no trees permitted whatsoever.

81. It was Mr O’Toole’s evidence, confirmed by Mr Travers, that it was appropriate for there to be some vegetation and some trees in the vicinity for a variety of reasons including breaking up the fire pattern, shielding from ember attack and things of that nature.

82. I am satisfied, on the basis of the evidence of Mr O’Toole and Mr Travers, in that regard, that although the one tree per 200 sq m spacing is appropriate, entire removal of trees in that regard would not be appropriate.

83. As an alternative to that, Mr Free suggested that the canopy separation of 5 m that was proposed as part of the joint expert conference for those quadrants of those two allotments ought be increased to 10 m canopy separation. It seems to me, on an entirely precautionary basis, that that is not an unreasonable provision and that the conditions and future vegetation management plan should reflect that position.

84. I am satisfied, on the basis of all of that evidence and having considered Development Control Note No 5 for development in bushfire prone areas published by the RFS subsequent to the publication of Planning for Bushfire Protection and the document also published by the Rural Fire Service dealing with standards for asset protection zones, that the outcomes that I have just traversed represent an appropriate response to the bushfire protection issues which were necessarily and properly pressed by the second respondent in the proceedings.

85. I turn to the question of flora and fauna impact.

86. The original proposal would have had a significant impact on the three elements that were contended by the council originally as being inappropriately impacted as part of the development, that is the tetratheca, the bandicoot and the goanna.

87. The redesign of the subdivision has, in its northern portion, impacted marginally more on the tetratheca than would have otherwise been the case but the consequence of the removal of the north-western allotment originally proposed in the southern part of the site has had a significantly beneficial effect on the tetratheca. The contraction of Lot 7 further to the east on the escarpment at the southern end of the site has had a significantly ameliorative respect in that regard as has the withdrawal of Lots 5 and 6 further to the south with respect to the boundaries of their asset protection zones.

88. The three ecological experts who gave evidence in the case indicated that they were satisfied that the redesign proposal, as it then was, was acceptable. The design has subsequently been further refined and the impacts further ameliorated as a result of the design refinement. Thus, I have no evidence upon which I could draw any alternative conclusion. I am therefore satisfied that there is no basis upon which I could require further modification let alone refuse he development.

89. I turn to the question of effluent disposal.

90. Material that has been filed on behalf of the applicant in the original stages of design included material setting out the proposed effluent disposal areas for each of the Lots in the then eight Lot proposed subdivision.

91. I am satisfied, with respect to Lots 3, 4, 6 and 7 of the present proposal, that the originally proposed effluent disposal areas are sufficiently identically available in the present development proposal as to be of only likely de minimis alteration.

92. With respect to the other two allotments, that is the now proposed Lots 5 and 2, there will clearly be a need for significant alteration to the location of the proposed effluent disposal zones. The applicant, during the course of the proceedings, indicated that it was prepared to accept a condition that required it to undertake the relevant further testing to the satisfaction of the council as to the delineation and location of those zones.

93. I am satisfied on the basis of the material contained in Exhibit C, that is both the stormwater management plan report and the waste water assessment report, that the likelihood is so great that an appropriate effluent disposal zone is available for each of those allotments that the mere delineation of it and testing for its adequacy would not offend the strictures of the Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734.

94. I should also note, before turning from the issues that were raised by the second respondent, that, as a consequence of the information provided by Mr Free, there has been an increase in the asset protection area on Lot 2 by a further 10 m along its south western and southern portions. I am satisfied that that is a further necessary and desirable protection for the residents on that Lot.

95. Having dealt with all of those matters, I have concluded that subject to a number of matters being dealt with, the application should be approved and the appeal should be upheld.

96. There are, however, two matters of detail raised by the applicant with respect to conditions that need to be dealt with and there is also a matter relating to the consolidation and finalisation of Exhibit J, that is the plan of subdivision to reflect those matters necessarily arising out of Exhibit R, that is the final concept plan before orders could be issued.

97. The two matters arising out of the conditions that were contested by the applicant, the first related to condition 18, that is the imposition of s 94 contributions.

98. The amount that is in contention is $15,791.

99. The applicant says that, as a consequence of its intention to dedicate Lot 1 to public ownership, it ought be relieved of the burden of paying those contributions.

100. I am satisfied that the benefit of providing Lot 1 in public ownership is not merely a benefit to the public but it also confers substantial benefits on the applicant by removing from the applicant the burden of future maintenance of a substantial length of fire trail and it provides benefits in fire protection to the future residents of the subdivision.

101. I am satisfied that there is no basis upon which it would be reasonable to deny the council the benefits of its s 94 contributions plan and condition 18 will remain unaltered in the conditions of consent.

102. The second matter arises concerning condition 68 which is a requirement that there be a restriction on the keeping of cats, dogs and other livestock.

103. Although there was some discussion in the latter stages as to how one would define livestock in such a restriction, I am satisfied that an appropriate description for the purposes of me dealing with the matter is cats, dogs and other livestock of the type that would normally be notified to a Rural Lands Protection Board in an annual stock return – that is sheep, goats, alpacas, camels, horses, cows and what one might otherwise describe as large herbivores.

104. The applicant resists those elements that go beyond the banning of cats. The applicant is prepared to accept a restriction by way of a s 88B instrument, in favour of the council, prohibiting cats but resists one for all other animals.

105. However, at p 85 of the species impact statement prepared by Mr Travers, it is noted that cats and dogs should be excluded.

106. I am satisfied, on the basis of the delineation of the asset protection zones condition (being that which is contained in cl 39 as to the creation of the fencing and cl 64 as to its maintenance), that the fence is one which will permit fauna such as the bandicoot or the Rosenberg goanna to be able to access the inner access protection zones and that, in the interests of protecting that threatened fauna, it is appropriate that not merely cats but also dogs be banned from the subdivision.

107. With respect to the larger herbivores, I have carefully considered the terms of the material contained in Exhibit C (which is the stormwater management plan report).

108. I am unable to be satisfied, on the basis of the material contained in that document, that the stormwater management measures proposed for the site would provide an adequate protection from the transmission of nutrients in run off from the site, from the droppings of large herbivores, if they were to be permitted to be kept on the site. I also have concerns (but I have no evidence about it) that there might not be sufficient area for such animals.

109. As a result of not having evidence, I take no regard to that point – although it was put to me by way of submission on behalf of the second respondent (but only in passing).

110. I am satisfied that, with respect to the keeping of large herbivores, the applicant has not provided a sufficient basis upon which I could be satisfied that it would be an acceptable activity to be permitted.

111. Finally, although I accept that there are likely to be undesirable impacts on the animals at Waratah Park, I do not consider that this, in itself, warrants refusal given that the redesigned proposal lessens the overall intensity of the development in the south-western quadrant of the site. Absent any other issues of significance which could also contribute to warranting refusal, I propose to require a special condition to be inserted which may assist the management of Waratah Park to cope with these impacts.

112. On this point, during the earlier phase of the hearings, I canvassed with Mr McEwen SC, for the applicant, on a contingent basis, the possibility, if a consent were granted, of requiring advance notice to the management of Waratah Park of works near the shared boundary. As I recollect, Mr McEwen indicated that this was likely to be acceptable.

113. The conditions shall, therefore, require that 24 hours notice be given to the management of Waratah Park prior to the commencement of any element of the works on Lots 5, 6 and 7 or on the access road, along the boundary with Waratah Park, serving these Lots.

114. The consequence of that is that the orders of the Court will be that the appeal will be upheld and that development for a subdivision of the site of six residential allotments and one community dedicated allotment will be granted consent subject to development conditions that remain to be settled between the parties as a consequence of this decision.

115. I therefore need to give the following directions:

1. The applicant is to file and serve a revised plan of subdivision reflecting the matters dealt with in this decision and in the final version of the concept plan. The plan of subdivision is to be filed and served by the close of business on 10 November;
2. The first respondent is to file and serve revised conditions of consent reflecting this decision and filed in accordance with Practice Direction 2 of 2005 and a separate email to the Court notifying the Court that they have been filed. This is to occur by the close of business on 10 November;
3. The matter is set down for callover on 16 November;
4. Liberty on two days to re-list the matter before me by any party if there is any dispute about matters arising out of directions 1 and 2; and
5. If directions 1 and 2 are complied with, then I will make orders in chambers and vacate the callover.

Commissioner of the Court