Redbank United Pty Ltd v Blue Mountains City Council

Case •

[2023] NSWLEC 1295

•

19 June 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Redbank United Pty Ltd v Blue Mountains City Council [2023] NSWLEC 1295
Hearing dates: 17 and 18 June 2021; 8 July 2021
Date of orders: 19 June 2023
Decision date: 19 June 2023
Jurisdiction:Class 1
Before: Adam AC
Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application no. X/391/2020 for the erection of a single dwelling house and associated carport; installation of a 20,000 litre rainwater tank; construction of a driveway: construction of a vehicular access road on the unformed and unconstructed public road, including a watercourse crossing; clearing of trees and other vegetation and earthworks to facilitate the development of Lot 7 and the public road at 11-17 Surrey Street, Bullaburra, NSW 2784 is determined by refusal of consent. 

(3) The exhibits are retained.

Catchwords:

APPEAL – deemed refusal – application for construction of single dwelling and detached carport with driveway to road to be constructed by Applicant on road reserve – need to take into account aims of Plan (cl 1.2) of the Blue Mountains Local Environmental Plan 2015 – importance of Special Local Provisions of the Blue Mountains Local Environmental Plan – did the Contentions address ‘real’ issues - information requested by Respondent and required in order to make assessment not, or inadequately, provided – was the calculation of the area of vegetation to be impacted by the proposed development correct – was the area of vegetation to be cleared such as to trigger entry into the Biodiversity Offsets Scheme (BOS) – was a Biodiversity Assessment Report (BDAR) required - can deficiencies in data availability be satisfied by deferred commencement conditions and operational conditions

Legislation Cited:

Biodiversity Conservation Act 2016, Sch 6, ss 6.10, 7.2, 7.7

Biodiversity Conservation Regulation 2017, Pt 6, cl 7.2

Blue Mountains Local Environmental Plan 2015, cll 1.2, 2.1, 3.7, 4.6, 6.8, 6.9, 6.10, 6.14, 6.17, 6.23, 7.2

Civil Procedures Act 2005, s 56

Environmental Planning and Assessment Act 1979, ss 4.14, 8.7

Environmental Protection and Biodiversity Conservation Act 1979 (Cth)

Land and Environment Court Act 1979, ss 34, 34AA

Sydney Regional Environmental Plan No 20 –Hawkesbury – Nepean River (No 2-1997), cll 3, 4, 6, Pt 2

Water Management Act 2000

Cases Cited:

Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 641

BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399

Doyle v Hornsby Shire Council [2015] NSWLEC 1576

Doyle v Hornsby Shire Council [2018] NSWLEC 45

Doyle v Hornsby Shire Council [2020] NSWLEC 1155

Texts Cited:

Blue Mountains Development Control Plan 2015

Matthew F. Adkins, “A burning issue: using fire to accelerate tree hollow formation in Eucalyptus species” (2006) 69 Australian Forestry 107-113

P Gibbons and D B Lindenmayer, Conserving Hollow-dependant fauna in Timber-production Forests, Environmental Heritage Monograph Series No. 3 (1997, NSW National Parks and Wildlife Service, Sydney)

Rachelle Carritt, National Tree Hollows: Essential for Wildlife, Conservation Management No 5 (1999, NSW National Parks and Wildlife Service, Sydney)

Category:Principal judgment
Parties: Redbank United Pty Ltd (Applicant)
Blue Mountains City Council (Respondent)
Representation:

Counsel:
J Doyle (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Doyles Construction Lawyers (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2020/355151
Publication restriction: Nil

Judgment

  1. The Applicant, Redbank United Pty Limited, has appealed against the deemed refusal by Blue Mountains City Council (Council) of development application no. X/391/2020 (DA) pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  2. The DA was for development on land at 11-17 Surrey Street, Bullaburra, NSW 2784 (the site). This section of Surrey Street is currently an unmade road. Bullaburra is situated north of the railway line and the Great Western Highway. Over the years various lots within Bullaburra have been developed, but there is a substantial number of blocks which have not been developed and are vegetated by largely native vegetation. To the north of the settlement is part of the Blue Mountains National Park.

  3. The DA sought consent for site preparation and works and the construction of:

“(a) A two storey dwelling with an overall height of 8.2m and a total proposed area of 262.9m2;

(b) A carport with an overall height of 2.750m and a proposed floor area of 25.6m2;

(c) 20,000 litre rainwater tank;

(d) A driveway with an area of approximately 83m2;

(e) A vehicular access road in the Surrey Street road reserve, approximately 140 metres in length, including a watercourse crossing, to provide access to the subject site.”

  1. The matter was allocated by the Court to a s34AA conciliation conference (Land and Environment Court Act 1979 (LEC Act)). I was appointed by the Chief Judge to preside at the conference.

  2. The matter commenced with an onsite inspection at which the legal representatives of the parties, the Council’s experts and Mr James, the Applicant's ecology expert, were present. The inspection commenced at the eastern end of the site on Surrey Street, close to 19 Surrey Street, a large dwelling on the southern side of the street which is prominent in aerial imagery, and was referred to colloquially by the experts as the White House.

  3. Before entering the subject site the Court heard from Mr Schwarz, a neighbour in 6-20 Surrey Street. Mr Nicholas Schwarz and Ms Wendy Drennan, the occupants of the property, had engaged Benbow Environmental, an environmental consultancy, to prepare a submission on their behalf, raising a series of issues by way of objection in response to public notification of the DA by Council (Ex C Tab 4 folio 12; Ms Drennan's individual submission is at folio 14).

  4. The Council had notified local residents by letter of the proposed development as is required by Part H of the Blue Mountains Development Control Plan 2015 (BMDCP) (Statement of Facts and Contentions (SOFAC) filed by the Council on 4 February 2021 – pars 29-31, Council’s Bundle (Ex C Tab 3)). The location of the properties whose owners received notification appears in Ex C Tab 3 folio 10:

Figure 1 Location of the properties whose owners received notification (Source: Ex C Vol 1 Tab 3 folio 10)

  1. The DA was notified by the Council to the owners of adjoining and nearby properties for a period of thirty (30) days between 22 July 2020 and 21 August 2020 in accordance with Part H of the Blue Mountains Development Control Plan 2015 (BMDCP).

  2. Two (2) submissions were received by the Council from the owners of an adjoining property.

  3. The submissions raised the following concerns:

  1. Visual impacts of the development;

  2. Tree removal due to required asset protection zone (APZ);

  3. Loss of sensitive vegetation to create driveway and potential impacts to the watercourse;

  4. Concerns regarding the NSW Rural Fire Service’s (RFS) ability to defend properties in a bushfire event due to increased density in the area; and

  5. Access concerns for emergency personnel given Surrey Street will not be formed to create a through road.

  1. The properties notified are hatched pink in the map at [7]. Lot 7 is the vacant lot below the Y of Surrey. The four lots shown hatched to the east of the four vacant lots are consolidated and are the location of the house with the street address of 19 Surrey Street (The White House).

  2. The subject land (Lot 7 and the proposed access route) are shown in the image below:

Figure 2 from folio 198 in Ex 1 - the affidavit of Tara O Connell, an attached exhibit to the affidavit TOC01 - Flora & Fauna Impact Assessment 13 Surrey Street, Bullaburra. SIA Ecological Planning & Environmental Planning Pty Ltd Prepared by Martin James 17 May 2021

  1. The road reserve is densely vegetated, with a dense fern layer obscuring the ground, so that walking was difficult.

Figure 3 The Surrey Street road reserve (Source: Ex 1 folio 210 photo 5)

Figure 4 The Surrey Street road reserve (Source: Ex 1 folio 210 photo 6)

Figure 5 Lot 7 as seen from the boundary with the Surrey Street road reserve (Source: Ex 1 folio 208 photo 1)

Figure 6 The proposed building envelope on Lot 7 contains several hollow-bearing trees (Source: Ex 1 folio 208 photo 2)

  1. One of the problems in conducting the inspection was the boundaries and specific locations were difficult to locate as there were no visible survey markers. Along part of what might have been the northern boundary of the road reserve was a length of flagging tape. However, Mr Doyle denied any knowledge of what the tape might indicate but suggested that it might have been put in place by Mr Schwarz to mark the boundary of his property.

  2. Mr Schwarz was not present on the inspection, having left after making his submission, as he was not permitted to be present during the confidential ‘without prejudice’ discussion phase of the s 34 process. If it had been known that the flagging tape was present then I would have asked Mr Schwarz whether it marked the boundary between the road reserve and his property.

  3. From the entry point to the road reserve, the reserve extended, in places steeply, towards the west. Near the top of the hill, Lot 7 runs south from the road reserve, but the location of the boundary between Lot 7 and the road reserve was unmarked.

  4. In his report Mr James illustrated what he regarded as the general location of Lot 7 and part of the building envelope of the proposed dwelling.

  5. On the inspection we reached the general area illustrated in the photographs above but there is no certainty that the boundary of Lot 7 had been crossed. Hidden by the dense fern layer were narrow, but deep, natural drainage lines, and without knowledge of their location it was unsafe to proceed further. However, the views over Lot 7 was sufficient to gain a general impression of the terrain and vegetation on the lot.

  6. The following quotation from Mr Seton's opening illustrates the uncertainty of determining where particular features were situated:

“COMMISSIONER: we - as far as we went on our perambulation from the east going to the boundary, we were looking across and there was a fairly deep drainage channel, now is the boundary on the north side of that deep drainage channel or was it more towards where there was that fallen tree on the other side?  So we were trying to work out where the building envelope was going to be.

SETON: Commissioner, I’m not able to answer that question.  I think it’s because of the survey date being January - the survey we have in relation to the land is a 2018 survey and I think, as Nagel indicated on site, that there appears to have been some further channel that’s not shown on that survey that exists now on the land and appears to have occurred at least since the time of the survey.  It would seem that it is within the boundary of the site but it’s not confirmed by reference to the survey information that we have presently available.

COMMISSIONER: I mean the question for me, were we standing close to the boundary or was the boundary some metres further south of where we were?

SETON: I think we were within the boundary when we were standing at that point looking at that particular channel that had been - was existent this morning.  But the APZ is required to extend all the way to that boundary which would cross that point, it would seem, on the northern side of that proposed building.”

(Tcpt, 17 June 2021, p 4(14-37))

  1. Both on the walk west along the road reserve and on the return journey attention was paid to the section marked on Figure 2 at [12] above (Ex 1 folio 198) as ‘Proposed Box Culvert’, where the access road will need to cross the watercourse. The watercourse in the general vicinity of possible crossing is illustrated in Figure 7 below. As will be discussed later, a box culvert is not the only option available.

Figure 7 The un-named creek in the vicinity of the of the proposed culvert (Source: Ex 1 photo 1 folio 211)

  1. The vegetation on the road reserve, and as far as could be ascertained, within Lot 7, would be described as native vegetation, although with some introduced species such as privet (Ligustrum sp.) present in currently limited quantities. The trees present did not include any large veteran individuals. Nevertheless, a number of trees were sufficiently large to have developed tree hollows, which provide potentially important habitat elements of the fauna in the ecosystem (see Figure 2 in [12] above).

  2. Mr Doyle in his written submissions of 19 July 2021 suggested at pars 3.35-3.37:

“3.35. Further, the fence along the southern edge of Surrey St evidences a heavy and intensive grazing pattern which has degraded the natural vegetation over many years.

3.36. Further, the condition of this piece of land at settlement was presumably an open forest managed by the indigenous occupants of the land by periodic fire control. This has obviously been abandoned and the existing flora is an unstable combination of pasture sapling regrowth and an abandoned landscape.

3.37. The site has already been previously extensively grazed and the disturbance will not result in further tree and vegetation removal other than in the area dedicated to the development. Similar to surrounding developments, the proposed property will sit in the middle of the site retaining vegetation at the front and rear of the property.”

  1. Documented evidence of prior clearing for grazing was not provided. Even if it had occurred, cessation of pastoral use must have been a long time ago for there to have been establishment and growth of trees to the stage where initiation of tree hollows had occurred.

  2. Tree hollows are not developed automatically as part of the plant growth process or by the actions of the vertebrate fauna that might subsequently utilise hollows. Hollow formation is a slow process which can be initiated by a number of abiotic and biotic processes. For a hollow to become utilised by vertebrate fauna requires it to occur on a tree which is decades to more than a century old. Different tree species vary in their growth form and timber properties, and in their individual responses to the local environmental conditions such as soil type, nutrient concentration, local climate etc. Branches may be shed as a result of competition between branches in the canopy, with the less competitive branches eventually dying and being shed by abscission or following damage by wind or fire. Decay of the trunk following damage to branches requires establishment of decay organisms such as bacteria, fungi and termites, while the tree itself may initiate defence reactions to limit the spread of decay organisms resulting in local death of woody tissues. Given the importance of tree hollows for vertebrate fauna, retention of hollow bearing trees is desirable, as would be the retention of mature trees which have yet to develop hollows but may do so in the future. Installation of habitat boxes, for roosting or nesting, may be feasible, but this would require commitment to long-term management and replacement. There is a substantial and readily available literature on tree hollow formation and its importance for wildlife - see for example: P Gibbons and D B Lindenmayer, Conserving Hollow-dependant fauna in Timber-production Forests, Environmental Heritage Monograph Series No. 3 (1997, NSW National Parks and Wildlife Service, Sydney); Rachelle Carritt, Natural Tree Hollows: Essential for Wildlife, Conservation Management Note 5 (1999, NSW National Parks and Wildlife Service, Sydney); Matthew F. Adkins, “A burning issue: using fire to accelerate tree hollow formation in Eucalyptus species” (2006) 69 Australian Forestry 107-113.

  3. After completing the inspection of the site as far as was possible from the eastern end of Surrey Street, the group drove to the western end of Surrey Street by Sussex and Devon Streets and along Bullaburra Road to Anderson Avenue at its junction with the western end of the Surrey Street road reserve.

  4. The drive between the two ends of the Surrey Street road reserve was undertaken in several vehicles. Mr Doyle requested that I, and the others, noted the nature of the development that had been constructed and the gardens and landscape along Bullaburra Road. This I did, but most of development had occurred prior to the commencement of the Blue Mountains Local Environmental Plan 2015 (BMLEP 2015) and from the features of some of the dwellings many years beforehand. The early development along Bullaburra Road does not provide a model for what would now be regarded as the intention for new development on Surrey Street.

  5. After inspection of the western end of the Surrey Street road reserve, adjournment was made to the Katoomba Local Court where the parties and the experts engaged in confidential ‘without prejudice’ discussions.

  6. I was not party to these discussions, but at 1 pm I inquired as to whether there has been any progress towards agreement, and was advised there had not been.

  7. At 2pm we reconvened in Court and I asked whether there had been any reconsideration of the position, and was advised by Mr Seton that no agreement had been reached.

  8. I therefore terminated the s34AA conciliation and moved to commence a hearing.

  9. Mr Doyle requested my reasons why I had made that step, rather than permitting the confidential ‘without prejudice’ discussions to continue.

  10. At the end of the first day of the hearing Mr Doyle foreshadowed an application he would make on the next day:

“DOYLE: Can I foreshadow an application we can make tomorrow and, that is, my friend has gone through a lot of applicable regulations as broad over summary but we say that under section 56 of the Civil Procedure Act you can only run real issues and you’ve got be aiming on the just, quick and cheap resolution. We say to involve all those aspects you must have put in your contention complete particulars of which of those you say applies because this is a court where the applicant must know the case he’s got to meet. Whereas, if it hadn’t come before the court, the council would be an approving authority and entitled to satisfy itself of those aspects and it would have a great deal of other information that’s not before the court in order to satisfy itself to that.

But when it comes before the court it is a litigant, a litigant with the responsibilities and the requirement to show the applicant exactly the case he’s got to meet.  So we’ll be saying tomorrow that you should look at the particulars provided and, where there are no particulars provided, you should strike out those sections of the contentions and where there are particulars provided the council should be restricted to running its case strictly within those particulars.  That’s the application we’ll make when there’s more time to consider it.”

(Tcpt, 17 June 2021 pp 31(39)-32(7))

  1. On the following day, he made three applications:

“DOYLE: So, given that order, we want to make three short applications.  One is we would respectfully request reasons for terminating the conciliation in the sense of the reasons that record the positions of the parties without, of course, any of the confidential matter being revealed because we want to have your ruling on out contention that it isn’t appropriate for a council to attend and then not be prepared to allow its experts to discuss their reports or otherwise participate in the conciliation.  So we make that request for you and that, in our view, is an appropriate treatment of the conciliation termination yesterday.

COMMISSIONER: And the other two applications?

DOYLE: The other applications that I wanted to make was that in respect of the jurisdictional issues that my friend outlined yesterday in the afternoon, where he went through a number of planned pieces of legislation and pointed out that there were jurisdictional aspects that might attract your attention, we suggest that he accept an instruction to list those and, in the listing, indicate the council’s position.  While we understand that you will need to be sure or be sufficiently comfortably with those jurisdictional aspects have been met, we think the necessary precondition to that was that the council lists them and the council set out its position because, for instance, if the council has a bundle of information that one or other jurisdictional aspects are satisfied and doesn’t contend that it isn’t, then that should be known to you in order that you can be satisfied that that aspect isn’t an issue with the parties.

The other purpose we see that as satisfying is that the applicant has a fair chance of meeting a case that he’s informed of.  We shouldn’t have to pick through the transcript of yesterday to find out matters that we need to satisfy which, in our view, might be beyond contention given the information already in the hands of the council.  So we would ask for that direction and we think that’s really properly interpreted.  It should be set up as part of the initial statement of facts and contentions to start these proceedings, you know, in a different matter but, in any event, we’d ask that direction.

The other aspect that we wished, if I go on and outline shortly the other application we’d like to make, is that we say it is our submission that the issues that should be run in this matter must be real issues under section 56. The situation is then that we say that they’re issues run by the council and which are not real issues which are something that shouldn’t be brought to court and should be able to be resolved in our situation by suitable conditions if they’re of any substance. So we would identify for the purpose of clarifying that application the contentions 1, 10, 13 and 16. We’ve had a little technical interruption with you which we’ll try and solve if you can still hear me.

We say those aspects are not real issues and shouldn’t cloud the hearing of the matter.  So we would like you to, firstly, in our submission, adopt that this is a proper application that we ask you to decide whether they’re real issues and, next, that if they’re not real issues you should strike them out.  The situation with that is that we say that real issues have got to disclose a real issue on the nature of the issue, the particulars given to it and, in some cases, the evidence that’s led insubordinate.  So the situation is that we ask that you consider that position and consider whether you will strike out those proceedings - sorry, those contentions.

Additionally, as an alternative in respect of contentions 13 and 16, we would invite you to order particulars of those because if you, for instance, decide that there are real issues against our contentions, we would ask that you ask the council to provide particulars of what it is the applicant will have to do meet.  Because what we submit to you is this former pleading, where everything under the sun is rolled forward, is an abuse of process and we say it’s demonstrated by the indigenous contention, which I think is contention 10.”

(Tcpt, 18 June 2021, pp 3(15)-4(24))

  1. Subsequently I indicated:

“COMMISSIONER: Okay.  Well, I can provide in a judgment eventually written reasons why I terminated the conciliation which will, firstly, point out that, yes, the decision as to when to terminate lies with the Commissioner but that, essentially, in view of the joint reports that have been made available, in view of council’s position, there was, it seemed to me, little to nothing to be gained by continuing discussion in the stage of conciliation when it was at least clear to me that council’s position was that there were a whole range of issues for which they were not satisfied and for which they couldn’t reach an agreement.”

(Tcpt, 18 June 2021, p 6 (34-41))

  1. I will address the termination question first, the other applications will be considered elsewhere within this judgment.

  2. It is important to recognize that the matter had been assigned to a conciliation conference under s 34AA of the LEC Act. When a s34AA matter is allocated a time in Court it is normally for two consecutive days. This differs from the normal process for a s34 conciliation conference which is allocated a single day in the first instance, but with the potential, in limited circumstances, for adjournment. There is therefore an expectation that in most circumstances a matter dealt with under s 34AA will be concluded within the time allocated, and the consequences of this is that the conciliation conference cannot be extended unless there is a very real prospect of an agreement being reached.

  3. Relevantly, s 34AA(2) applies:

(2) Section 34 applies to the proceedings with the following modifications—

(a) the Court must arrange a conciliation conference between the parties and their representatives with or without their consent,

Note—

The Commissioner has the discretion to determine the place (including an on-site hearing) fixed for the conciliation conference.

(b) if no agreement of a kind referred to in section 34(3) is reached, the Commissioner who presides over the conciliation conference must terminate the conciliation conference and, subject to this section, dispose of the proceedings—

(i) following a hearing held forthwith, or

(ii) if the parties consent, on the basis of what has occurred at the conciliation conference

  1. Section 34AA(2)(b) requires that the presiding Commissioner must terminate the conciliation conference and dispose of the proceedings, but does not specify a time in which an agreement must have been reached. In this matter I had the benefit of the field inspection, which enabled me to understand the features of the site that led to a number of the Council’s contentions. I had the opportunity to read the Council’s SOFAC and the Applicant’s SOFAC in Reply dated 6 March 2021 (Ex 2). The SOFAC gives rise to a number of contentions including ones that raise jurisdictional issues.

  2. Given the approach by the Applicant shown in Ex 2 and the nature of the issues raised by the Council, it seemed that the approaches of the parties were diametrically opposed and that agreement on sufficient issues so as to justify extending the conference was extremely unlikely. Indications of progress towards agreement on some of the issues may have provided sufficient glimmer of hope to consider an extension of the discussion within the conciliation phase, but any extension of conciliation could only have been brief, if the matter were to be finalised relatively quickly.

  3. Having moved to the hearing stage the proceedings commenced, as is ordinarily the case, with the Council outlining the relevant planning legislation and planning instruments which apply to the matter. Before I introduce the matters raised by the Council, it is appropriate to introduce the aims of the BMLEP 2015.

1.2 Aims of Plan

(1) This Plan aims to make local environmental planning provisions for land in the Blue Mountains in accordance with the relevant standard environmental planning instrument under section 3.20 of the Act.

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

(aa) to protect and promote the use and development of land for arts and cultural activity, including music and other performance arts,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. The aims of all LEPs raise both general issues as well as some specific to the locality. The BMLEP 2015 differs from most LEPs by the context in which it is set by cl 1.2(2)(a).

  2. The World Heritage National Park referred to is the Greater Blue Mountains World Heritage Area. The Greater Blue Mountains World Heritage Area encompasses more than 1 million hectares spread across 8 adjacent conservation reserves. The Greater Blue Mountains World Heritage Area was inscribed on the World Heritage List in 2000 in recognition of its significant natural values. A number of local government areas (LGAs) include, within their boundaries, parts of the Greater Blue Mountains World Heritage Area. Relevant in the present matter is the proximity of the Blue Mountains National Park to the subject site. No part of the subject site is within the Blue Mountains National Park. Nevertheless, maintenance of the identity and values of the World Heritage area, is an important consideration (BMLEP 2015 cl 1.2(2)(d)), and the importance of the values of the World Heritage area to the identity of the Blue Mountains LGA requires that not only any direct impacts are assessed and managed, but that potential indirect effects are considered.

  3. World Heritage areas are matters of national environmental significance (MNES) under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). If the MNES trigger were activated then referral to the Commonwealth would be required, but there is no suggestion that this is required.

  4. Mr Seton in opening tendered the Council’s bundle (Ex C - in two volumes) and discussed seriatim the contents of the bundle. The first volume (Tabs 1-18) documented the DA, the immediate administrative response of the Council to the receipt of the DA and responses to referral to other agencies. The second volume of Ex C (Tabs 19-23) contained the relevant environmental planning instruments and related documents.

Relevant planning instruments

  1. The planning instruments relevant to this application specify a range of matters that the consent authority (or, in the present instance, the Court standing in the shoes of the Council) must consider in the assessment of the DA.

Sydney Regional Environmental Plan No 20 – Hawkesbury – Nepean River (No 2-1997) (SREP)

  1. The Plan applies to certain land in certain LGAs, which include the Blue Mountains LGA, and shown on the map accompanying the plan. The location of the subject site is within the area covered by Sheet 25 of the maps. The plan therefore applies to the subject site.

  2. The aim of the Plan is provided by cl 3:

3 Aim of this plan

The aim of this plan is to protect the environment of the Hawkesbury-Nepean River system by ensuring that the impacts of future land uses are considered in a regional context.

  1. Part 2 of the Plan presents general planning considerations, specific planning policies and recommended strategies commencing with cl 4. Mr Seton's discussion of the relevant operative provisions is in Tcpt, 17 June 2021 pp 11(49)-13(19).

  2. Clause 4 provides that:

4   Application of general planning considerations, specific planning policies and recommended strategies

(1)  The general planning considerations set out in clause 5, and the specific planning policies and related recommended strategies set out in clause 6 which are applicable to the proposed development, must be taken into consideration—

(a)  by a consent authority determining an application for consent to the carrying out of development on land to which this plan applies, and

(b)  by a person, company, public authority or a company State owned corporation proposing to carry out development which does not require development consent.

(2)  Those considerations, policies and strategies should be taken into consideration in the preparation of each environmental planning instrument and development control plan that applies to land to which this plan applies.

  1. The BMLEP 2015 postdates the SREP, so that cl 4(2) will have been taken into account in preparing the BMLEP 2015. Within the Council a great deal of the natural areas are within the World Heritage Area or are areas of bushland of conservation value so the provisions of the SREP (particularly within cl 6) dealing with total catchment management, environmentally sensitive areas, water, quality and quantity and flora and fauna are reflected in BMLEP 2015.

BMLEP 2015

  1. BMLEP 2015 is in standard instrument form.

  2. The land use zones within the Blue Mountains LGA are listed in cl 2.1 of BMLEP 2015. At the time of the hearing the subject site was within the Environment Protection Zones—E2 Environmental Conservation and E4 Environmental Living. The road reserve and the part of Lot 7 where construction of the dwelling was proposed were within zone E4 Environmental Living. The part of Lot 7 not within zone E4 was within zone E2 Environmental Conservation. Subsequent to the hearing the zones have been renamed to Zone C2 Environmental Conservation and Zone C4 Environmental Living, but with no changes to the objectives of the zones or the Land Use Table.

Zone C2 Environmental Conservation

1 Objectives of zone

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

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

• To encourage land restoration works on disturbed bushland areas.

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

• To maintain biodiversity in the Blue Mountains.

2 Permitted without consent

Environmental protection works; Home occupations

3 Permitted with consent

Dwelling houses; Environmental facilities; Flood mitigation works; Oyster aquaculture; Roads

Note—

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

4 Prohibited

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

Zone C4 Environmental Living

1 Objectives of zone

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

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

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

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

2 Permitted without consent

Environmental protection works; Home businesses; Home occupations

3 Permitted with consent

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

4 Prohibited

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

  1. The works proposed within the DA are permissible with consent.

  2. The objects of the zones read with the aims of BMLEP 2015 (see [40]) give weight to the importance that Council lays on the protection of the environment and biodiversity.

  3. Mr Seton drew attention to subcll 2.3(2) and (4) of BMLEP 2015:

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

(4) This clause is subject to the other provisions of this Plan

and argued that permissibility of a particular form of development within a zone did not mean that any application for that form of development would gain automatic approval:

“[SETON:] […] So, notwithstanding that a development may well be identified as being permissible with consent in a particular zone, that permissibility is subject to the other provisions of this plan […]”.

(Tcpt, 17 June 2021, p 13(33-35))

  1. It has long been accepted that regardless of permissibility, whether a consent authority grants approval to a development application is dependent on consideration of all aspects of what is proposed in the application.

  2. In discussion about the weight to be applied to particular aspects of a proposal in the light of the zoning which has been applied to a site, the words of McClellan CJ of the LEC (as he then was) in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 (BGP Properties) are frequently cited:

“Significance of the zonings

115 The context in which the issues in this case must be resolved includes the history of the use of the land and the contribution which it now makes to the existing natural environment. Although zoned industrial, that zoning was imposed at a time when the community’s understanding of the significance of some elements of the natural environment was not as mature as it now is. Consideration of matters of inter-generational equity and the conservation of both biological diversity and the ecological integrity of land were not such significant elements of environmental decision-making as they are today.

116 Notwithstanding the fact that the ecological integrity of the site may be threatened if the major road reservation were utilised for its purpose, I am satisfied that this is not a significant matter in this case. The reservation was also imposed at a time when the ecological significance of the area was unlikely to have been given any, or at least any mature, consideration. It would be inappropriate to make a decision in the present case upon the assumption that construction of the proposed road is inevitable.

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

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

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

(at [115]-[119])

  1. In the current matter, both parties in written submissions drew attention to this passage, although with emphasis on different points.

  2. The BMLEP 2015 is relatively recent, and was written well after the recognition of the importance of biodiversity conservation, as is shown by the importance accorded to the natural environment and biodiversity by the draftsperson. It is not an LEP which would fall in the category discussed in [119] of BGP Properties.

  3. I would interpret the Applicant’s submissions as giving considerable weight to the fact that what is proposed is permissible (at [117] and the first part of [118] of BGP Properties), whereas the Council draws attention to the caveat (in the second part of [118] of BGP Properties) - the environmental impacts of the proposal must be acceptable. The zoning is important - an application for a development which is not permissible in the zone will fall at the first hurdle, but to reach the finishing line the Applicant will have to substantiate its case that the environmental impacts are acceptable.

  4. The Council sought advice from RFS pursuant to s 4.14 EPA Act. The RFS response is included in Ex C behind Tab 8. The RFS advised (Ex C Tab 8 folio 23):

“That from the start of building works, and in perpetuity to ensure ongoing protection from the impact of bush fires, the property around the building must be maintained as an inner protection area (IPA) in accordance with the requirements of Appendix 4 of Planning for Bush Fire Protection 2019”.

  1. These requirements are aimed at reducing and maintaining at a low level the fuel load in the inner protection area (IPA), through measures including reducing tree canopy to less than 15% cover, with tree canopies separated by 2-5m, shrubs not to form more than 10% ground cover, and grass should be kept mowed (as a guide to be kept to no more than 100mm height).

  2. In consequence the vegetation in the IPA will have a very different structure from that currently present which is illustrated in the photographs at [13].

  3. The location of the proposed residence and of the IPA are shown in the image below at Figure 8:

Figure 8 from Ex C, Tab 10, folio 31

  1. On the site inspection it was not possible to identify with certainty the position of the property. The northern boundary of the IPA is coincident with the property boundary, so assessment of the impact of the proposed development, including the impacts resulting from clearing to create the IPA, requires that the area which will be subject to the IPA can be delineated precisely so that the current vegetation within the IPA can be determined. At the time of the site inspection, given the lack of marking of any sort of the boundary, there could be no certainty as to what trees would be removed. The footprint of the proposed dwelling on Lot 7 is the black rectangle surrounded within the red rectangle by the IPA.

  2. The RFS provided General Terms of Approval (GTAs) to be incorporated into conditions of consent were the Council to be of a mind to grant consent. As the Court is, for the purposes of the hearing, standing in the shoes of Council then were the Court to be of a mind to grant approval the same GTAs would need to be included in the conditions of consent. The GTAs are extensive and cover a range of issues additional to the specification of the IPA.

  3. The Applicant identified the proposal as being integrated development under the provisions of the Water Management Act 2000, so that referral to the Natural Resources Access Regulator (NRAR) was required. Correspondence between the Council and NRAR is in Ex C Tabs 11, 12 and 13 which document exchanges aimed at clarifying the details of what was proposed. On 24 December 2020 NRAR sought additional information on the development proposal, and requested that the Council “stop the clock” in the assessment process until information was provided (Ex C Tab 17). On 4 June 2021 NRAR issued GTAs which Council would be required to include within conditions of consent were the DA to be granted approval (Ex C Tab 18).

  4. The GTAs do not in themselves constitute an approval from NRAR

“SETON: Commissioner, if I can then go to tab 18.  You’ll find there a latter from the Natural Resources Access Regulator dated 4 June 2021.  If you go to the third paragraph it says:

“If the proposed development is approved by council, NRA requests these GTA to be included in their entirety in council’s development consent.”

And then there’s some GTAs that are attached - general terms of approval attached at folio 56 that set out various conditions that NRA would want to have imposed upon any consent that might be granted for the development as proposed.”

(Tcpt, 17 June 2021 p 11(14-27))

  1. The various internal referral responses included in Ex C Vol 1, indicate that Council officers had a number of concerns with the information (or lack of information) provided in the DA.

  2. Ms Hawken raised a number of concerns from an engineering perspective (Ex C Tab 9 folios 27-29). The concerns related to the proposed ‘access road’:

“SETON: I’m sorry, Commissioner?

COMMISSIONER: I interrupted you.

SETON: If I continue then, Commissioner, I was going to the next tab, tab 9.  You’ll see there a document entitled Referrals Response dated 29 July 2020.  It’s from Kathy Hawken who is one of the experts who has participated in a joint report process in these proceedings.  Down the bottom of that page, you’ll see comments made in relation to vehicle access and under that heading:

“The extension of [Surrey] Street will have to be a private driveway and it’s maintenance will be the responsibility of the property owners.  Positive covenants will be imposed, however, it will be over a water course and most of the documentation has not taken this into account”.

And then over the page, folio 28, there’s a heading Outstanding Information Required and there’s a series of circles or circle points that identified in terms of the information that is required.  I won’t go to those now because they’re repeated in correspondence that is subsequently provided to the applicant.

COMMISSIONER: Just going back to the previous page and the extension, which is the extension of [Surrey] Street?

SETON: That’s the work that is proposed or shown in the road plans that extends from what I will call the east through to the subject site.  So where we walked initially this morning.

COMMISSIONER: I thought that was still council road reserve.

SETON: That is the extension of [Surrey] Street.”

(Tcpt, 17 June 2021 p 7(1-32))

  1. Ms Hawken at Ex 3 Tab 9 folios 28-29 identified a list of matters for which further information was required; these included details of the proposed water crossing and its impacts, overland flow, construction standard of the road and its suitability for passage of a Category 1 (23 tonne) RFS fire appliance.

  2. The Surrey Street road reserve connects Sussex Street in the east to Anderson Avenue in the west. Access to Lot 7 from Anderson Avenue was not considered to be feasible by Council officers due to the steepness of the topography (Ex C Tab 10 folio 30).

  3. The Council wrote to the Applicant on 4 December 2020 making requests for further details about many aspects of the proposal (Ex C Tab 16). Included among the items were:

“the proposed dwelling and access road layout is requested to be located on site by a registered surveyor and pegged. The survey peg locations are to be labelled and identified on a survey plan showing relevant environmental features”.

  1. If these pegs had been in place at the time of the site inspection, and their location identified on a survey plan, the site inspection could have been more useful and informative. Other items in the letter of 4 December 2020 required information on flora and fauna assessment and, also the likely impacts of the development on flora and fauna. Item 10 of the letter reflects the Council officer’s assessment of the total area of clearing that would be required and indicated that Council considered the amount of clearing exceeded the Biodiversity Offset Scheme (BOS) threshold so that a Biodiversity Development Assessment Report (BDAR) was required. The BDAR should be prepared using the Biodiversity Assessment Method (BAM) in accordance with the Biodiversity Conservation Act 2016 (BC Act) (Pt 6) and the Biodiversity Conservation Regulation 2017 (BCA Regulation) (Pt 6). The BDAR is to be produced by an accredited person (BC Act s 6.10). The Council requested an arboricultural survey report and an arboricultural impact assessment as specified in the BMDCP Part I I2.1.6, pp 783-784 prepared by a consulting arborist (AQF level 5).

Additional local provisions 

  1. BMLEP 2015 has a number of ‘Additional local provisions’, many of which support the aims of the Plan, by requiring attention to the special environmental features of the Blue Mountains. 

  2. Clause 6.1 reads:

6.1   Impact on environmentally sensitive land

(1)  The objective of this clause is to protect environmentally sensitive land by—

(a)  conserving significant native vegetation communities and protecting the ecological processes necessary for the continued existence of those communities, and

(b)  protecting watercourses and the riparian buffers necessary to maintain or enhance the hydrological function of those watercourses, and

(c)  restricting development on steeply sloping land and protecting geological features such as rock outcrops and escarpments.

(2) Impact of development on environmentally sensitive land Development consent must not be granted for development that may have an adverse impact on environmentally sensitive land unless the consent authority is satisfied that—

(a)  the natural, scenic, scientific and historical values of the “City within a World Heritage National Park” that are relevant to the development will be maintained, and

(b)  the development will be managed to protect the natural environment and maintain the ecological integrity and environmental significance of the Blue Mountains, and

(c)  the water quality, watercourses, groundwater quality, riparian habitats and wetlands in the Blue Mountains, Sydney’s drinking water catchment and the Hawkesbury-Nepean River catchment will be preserved and, if possible, enhanced, and

(d)  the development is appropriate considering the extent and capacity of the local infrastructure, and

(e)  if the development will be located on bush fire prone land, the exposure to bush fire hazard will be limited and any bush fire protection measures employed to protect human life, property and other assets are responsive to the environmental values of the land.

(3) Development near Blue Mountains National Park Development consent must not be granted for development on land that is adjacent to, directly opposite or separated only by a local road from land in the Blue Mountains National Park unless the consent authority—

(a)  has considered the impact of the proposed development on the heritage significance and scenic attributes of the National Park, and

(b)  is satisfied that the development incorporates effective measures to avoid, minimise or mitigate any adverse environmental impact on the land in the National Park.

(4) Impact of subdivision on environmentally sensitive land Development consent must not be granted for the subdivision of land to create additional lots unless the consent authority is satisfied that the development, including any clearing required for an asset protection zone, will have no adverse environmental impact on any environmentally sensitive land.

(5) Development on environmentally sensitive land in Zone E3 or Zone E4 Development consent must not be granted for development (other than development for the purpose of public utility services) on land within a lot created under this Plan being land in Zone C3 Environmental Management or Zone C4 Environmental Living that contains environmentally sensitive land unless the consent authority is satisfied that the proposed development, including any clearing required for an asset protection zone, would be designed, sited and managed to avoid any adverse environmental impact on the environmentally sensitive land.

(6) Other development Development consent must not be granted for development (other than development referred to in subclauses (4) and (5)) unless the consent authority is satisfied that the development, including any clearing required for an asset protection zone, is to be designed, sited and managed to avoid any adverse environmental impact on any of the following—

(a)  significant vegetation communities,

(b)  rare species of flora,

(c)  the hydrological aspect of the locality, including groundwater,

(d)  land identified as “Riparian Land” on the Riparian Lands and Watercourses Map,

(e)  watercourses or wetlands,

(f)  significant natural features, including rock outcrops, rock ledges and cliffs.

(7)  Despite subclause (6), development consent may be granted for development if the consent authority is satisfied that—

(a)  if an adverse environmental impact cannot be avoided, the development is designed, sited and will be managed to minimise that impact to the greatest extent possible, and

(b)  the development incorporates effective measures to remedy, minimise or mitigate any other adverse environmental impacts, and

(c)  any existing disturbed areas on the site will be restored.

(8)  In determining whether an adverse environmental impact cannot be avoided, the consent authority must—

(a)  have regard to the purposes for which the land is intended to be used with reference to the objectives of the relevant zone of the land, and

(b)  be satisfied that no practicable alternative is available in relation to the design, type and site coverage of the proposed development (including any measures required to protect life and property from the threat of bush fire) and the suitability of the physical characteristics of the land for the proposed development.

  1.  The references to E2 and E4 should be read as C2 and C4.

  2. Clause 6.1(2) sets a jurisdictional requirement - the consent authority cannot grant development consent for a development that may have an adverse impact on environmentally sensitive land unless they are satisfied that the relevant conditions are satisfied. 

  3. ‘Significant native vegetation communities’ - the Dictionary to the BMLEP 2015 does not in itself provide a definition of the term, but refers to Sch 6 of the BMLEP 2015. This Schedule contains detailed descriptions of a number of plant communities, including the Blue Mountains Riparian Complex, a plant community which is present on the site.

  4. Clause 6.1(2) refers to environmentally sensitive land which is defined in the Dictionary to the BMLEP 2015:

environmentally sensitive land includes the following land—

(a)  land in Zone C2 Environmental Conservation,

(b)  land identified as “Protected area—Slope constraint area” on the Natural Resources—Land Map that has a slope exceeding 20%, excluding any land that has an area of less than 100 square metres and that is not within 20 metres of other land that has a slope exceeding 20%, but only if that land is not otherwise environmentally sensitive land,

(c)  land identified as “Protected Area—Ecological Buffer Area” on the Natural Resources—Biodiversity Map,

(d)  land that is a watercourse and land that is within 40 metres of the top of the bank of a watercourse,

(e)  land on which any significant vegetation community is located and land that is within 60 metres of any such community,

(f)  land on which any rare species of flora is located and land that is within 20 metres of any such species,

(g)  land comprising any significant geological feature, such as rock outcrops and escarpments,

but does not include land determined under clause 6.2 not to be environmentally sensitive land for the purposes of this Plan.

Note—

Clause 6.2 only applies to land that is within 40 metres of the top of the bank of a watercourse, land that is within 60 metres of a significant vegetation community and land that is within 20 metres of a rare species of flora.

  1. Environmentally sensitive land includes, inter alia, any significant local vegetation and land within 60m of any such vegetation.  

  2. Clause 6.4 reads: 

6.4   Protected area—slope constraint area

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

(a)  to restrict the development of land that has contiguous areas of slope greater than 20% or physical characteristics that render the land inappropriate for development,

(b)  to ensure that development on land that has contiguous areas of slope greater than 20% is designed and sited to minimise vegetation clearing and soil disturbance,

(c)  to encourage the retention, restoration and maintenance of disturbed native vegetation on steep land.

(2)  This clause applies to land that has a contiguous area of slope exceeding 20% and that is identified as “Protected area—Slope constraint area” on the Natural Resources—Land Map.

(3)  Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that—

(a)  all existing native vegetation situated outside any part of the land required for the development will be retained and appropriate measures will be incorporated to facilitate the maintenance of such vegetation, and

(b)  the development will incorporate measures to regenerate any native vegetation that has been cleared from land to which this clause applies that does not form part of the site of any existing or proposed development, and

(c)  the development will not have any adverse impact on the rate, volume or quality of water running off the land, and

(d)  a geotechnical report prepared by a suitably qualified person demonstrates that the soil characteristics and structural elements of the land are suitable for the proposed development, and

(e)  the development cannot practicably be located on land other than the land to which this clause applies.

(4)  In determining whether the development can practicably be located on land other than the land to which this clause applies, the consent authority must consider the following—

(a)  the design, type and site coverage of the proposed development, and

(b)  the physical characteristics of the land on which the development is proposed to be carried out, and

(c)  the suitability of the land for the proposed development.

  1. Protected area - slope constraint area land is mapped on the Natural Resources Land Map within the subject site including the area where the proposed dwelling is to be situated.  

  2. Clause 6.6(3) gives rise to a jurisdictional constraint - development consent must not be granted unless the consent authority is satisfied that all of the subclauses (subcll (3)(a)-(c)) are met. 

6.6   Protected area—vegetation constraint area

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

(a)  to identify and require assessment of vegetation that is likely to be a significant vegetation community,

(b)  to protect significant vegetation communities and vegetation that is fauna habitat or part of a wildlife corridor,

(c)  to ensure development is designed, sited and managed to avoid or mitigate any adverse environmental impact on any significant vegetation community and the ecological buffer required to protect that significant vegetation community,

(d)  to encourage the restoration and maintenance of native vegetation, including vegetation that does not form part of a significant vegetation community.

(2)  This clause applies to any land—

(a)  that is identified as “Protected Area—Vegetation constraint area” on the Natural Resources—Biodiversity Map, or

(b)  that is the site of a significant vegetation community or rare species of flora.

(3)  Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that—

(a)  the development incorporates effective measures, including an adequate ecological buffer, to protect significant vegetation communities and to regenerate any disturbed native vegetation on the site area, and

(b)  all existing native vegetation situated outside the land required for the development will be retained and appropriate measures will be incorporated to facilitate the maintenance of such vegetation, and

(c)  in relation to land that is the site of a significant vegetation community, the development cannot practicably be located on land other than the land to which this clause applies.

(4)  In determining whether the development can practicably be located on land other than the land to which this clause applies, the consent authority must consider the following—

(a)  the design, type and site coverage of the proposed development, and

(b)  the physical characteristics of the land on which the development is proposed to be carried out, and

(c)  the suitability of the land for the proposed development.

  1. Clause 6.6(3) is jurisdictional as consent cannot be granted unless the consent authority is satisfied of the matters in cl 6.6(3)(a)-(c) and cl 6.6(4) requires the consent authority to consider the matters in subcll (4)(a)-(c) when determining whether the development can practicably be located on land other than land to which the clause applies. 

  2. Clause 6.7 reads: 

6.7   Protected area—ecological buffer area

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

(a)  to protect significant vegetation communities,

(b)  to restrict development so that it does not occur, as far as practicable, within ecological buffers to significant vegetation communities,

(c)  to ensure that development is designed, sited and managed to minimise any adverse impact on the ecological functions of the buffer,

(d)  to encourage the restoration and maintenance of native vegetation and the ecological processes of land in, and adjacent to, significant vegetation communities.

(2)  This clause applies to land identified as “Protected Area—Ecological buffer area” on the Natural Resources—Biodiversity Map.

(3)  Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that—

(a)  the development incorporates effective measures to manage any significant vegetation communities, and

(b)  the development is designed and sited to maintain connectivity of vegetation and to minimise the clearing of vegetation, soil disturbance and alterations to the surface and groundwater flows, and

(c)  all existing native vegetation situated outside the land required for the development will be retained and appropriate measures will be incorporated to facilitate the maintenance of such vegetation, and

(d)  any disturbed native vegetation on the land to which this clause applies will be regenerated, and

(e)  the development cannot practicably be located on land other than the land to which this clause applies.

(4)  In determining whether the development can practicably be located on land other than the land to which this clause applies, the consent authority must consider the following—

(a)  the design, type and site coverage of the proposed development, and

(b)  the physical characteristics of the land on which the development is proposed to be carried out, and

(c)  the suitability of the land for the proposed development.

  1. Mr Seton finds that cl 6.7 is applicable 

“SETON: […] that applies to the ecological buffer area that’s identified on the natural resources biodiversity map.  That particular area, Commissioner, is what I’ll call the front three-quarters of the site that is identified by reference to the relevant map as ecological buffer area.”

(Tcpt, 17 June 2021, p 18(47-50))

  1. The ability of the consent authority to grant consent for development is limited within the mapped area.   

  2. Clause 6.8 reads: 

6.8   Protected area—riparian lands and watercourses

(1)  The objective of this clause is to protect and maintain the following—

(a)  water quality within watercourses,

(b)  the stability of the bed and banks of watercourses,

(c)  aquatic and riparian habitats,

(d)  ecological processes within watercourses and riparian areas.

(2)  This clause applies to watercourses and wetlands, including all of the following—

(a)  land identified as “Protected Area—Watercourses” on the Riparian Lands and Watercourses Map,

(b)  land identified as “Protected Area—Riparian Land” on that map,

(c)  all land that is within 40 metres of the top of the bank of a watercourse.

(3)  In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider—

(a)  whether or not the development is likely to have any adverse impact on the following—

(i)  the water quality and flows within the watercourse,

(ii)  aquatic and riparian species, habitats and ecosystems of the watercourse,

(iii)  the stability of the bed and banks of the watercourse,

(iv)  the free passage of fish and other aquatic organisms within or along the watercourse,

(v)  any future rehabilitation of the watercourse and riparian areas, and

(b)  whether or not the development is likely to increase water extraction from the watercourse, and

(c)  any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4)  Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that—

(a)  the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b)  if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c)  if that impact cannot be minimised—the development will be managed to mitigate that impact.

  1. The watercourse is marked as just touching the southeast corner of Lot 7, but it also crosses the road reserve in the location where road construction is proposed as part of the DA. 

  2. No water quality or flow data for the watercourse were provided by the Applicant and there was uncertainty as to whether Council had collected any data for the particular watercourse.

“[SETON:] […] consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that (a) the development incorporates effective measures to manage any significant vegetation communities; (b) the development is designed and sited to maintain connectivity of vegetation and to minimise the clearing of vegetation, soil disturbance and alterations to the surface and groundwater flows; (c) all existing native vegetation situated outside the land required for the development will be retained and appropriate measures will be incorporated to facilitate the maintenance of such vegetation and (d) any disturbed vegetation on the land to which this clause applies will be regenerated and (e) the development cannot practicably be located on land other than the land to which this clause applies.

Clause 6.8 applies, Commissioner, headed Protected Area Riparian Lands and Water Courses.  Subclause (1) says the objective of this clause is to protect and maintain the following and you’ve got a series of objectives.  Subclause (2) says it applies to land identified as protected area water courses on the riparian lands and water courses map.  I’ve given you that map as well at the back of this document.  You’ll see the water course by reference to the subject land.”

(Tcpt, 17 June 2021, p 19(1-20))

  1. Clause 6.9 reads:

6.9   Stormwater management

(1)  The objective of this clause is to avoid the adverse impacts of urban stormwater on land on which development is located and on adjoining properties, native bushland and receiving waters.

(2)  Development consent must not be granted for development unless the consent authority is satisfied that the development—

(a)  incorporates best practice water sensitive urban design principles, and

(b)  is designed to maximise the use of water permeable surfaces on the land having regard to groundwater levels and the soil characteristics affecting on-site infiltration of water, and

(c)  includes, if practicable, on-site stormwater retention for reuse as an alternative supply to mains water, groundwater or river water, and

(d)  avoids any adverse impacts caused by stormwater runoff on adjoining properties, native bushland and the receiving natural environment by ensuring that—

(i)  the quality of surface water or groundwater leaving the site is not reduced in the short or long term, and

(ii)  the quantity and flow characteristics of stormwater leaving the site is not adversely altered, and

(iii)  stormwater treatment and disposal methods achieve adequate filtration, absorption, dissipation and scour protection, and

(e)  integrates stormwater management measures into the landscape so as to provide a neutral or beneficial effect on environmental and water quality protection, stormwater retention and detention, flood mitigation, landscaping, public open spaces and recreational and visual amenity.

  1. Clause 6.9(1) sets broad objectives and cl 6.9(2) requires that the consent authority be satisfied of certain matters, so it is another jurisdictional hurdle. 

  2. Clause 6.10 applies: 

6.10   Flood planning

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

(a)  to minimise the flood risk to life and property associated with the use of land,

(b)  to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change,

(c)  to avoid significant adverse impacts on flood behaviour and the environment.

(2)  This clause applies to land at or below the flood planning level.

(3)  Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the development—

(a)  is compatible with the flood hazard of the land, and

(b)  is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c)  incorporates appropriate measures to manage risk to life from flood, and

(d)  is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e)  is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

(4)  A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0), published by the NSW Government in April 2005, unless it is otherwise defined in this clause.

  1. The flood planning level is the level of the 1-in-100-year event. Mr Seton pointed out the parts of the site were affected by flooding in events more frequent than the 1-in-100-year event. 

  2.  Clause 6.14 applies: 

6.14   Earthworks

(1)  The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions or processes (including waterways, riparian land and groundwater), neighbouring uses, cultural or heritage items or features of the surrounding land.

(2)  Development consent is required for earthworks unless—

(a)  the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or

(b)  the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.

(3)  In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters—

(a)  the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b)  the effect of the development on the likely future use or redevelopment of the land,

(c)  the quality of the fill or the soil to be excavated, or both,

(d)  whether the development minimises cut and fill and the use and location of cut and fill on the site,

(e)  the effect of the development on the existing and likely amenity of adjoining properties,

(f)  the source of any fill material and the destination of any excavated material,

(g)  the likelihood of disturbing relics,

(h)  whether the location of the earthworks is appropriate, taking into account land that has previously been cleared in response to site characteristics,

(i)  the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive land and measures to prevent sediment, building materials, waste or other pollutants from leaving the site and entering adjoining land, street gutters, drains or watercourses,

(j)  any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

Note—

The National Parks and Wildlife Act 1974, particularly section 86, deals with harming Aboriginal objects.

  1. Neither of the exemptions in cl 6.14(2) apply to the proposed development so development consent is required for any earthworks required. The subclause also lists a number of factors which the consent authority must consider. In order to consider the matters there must be relevant information available.

  2. Clause 6.17 states: 

6.17   Consideration of character and landscape

(1)  The objective of this clause is to promote the design of residential properties that are consistent with, or enhance, the established character of the buildings, gardens and streetscapes of the villages in the Blue Mountains.

(2)  This clause applies to land in a residential or conservation zone.

(3)  Development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the following—

(a)  the scale and massing of any proposed building,

(b)  the use of building materials, including colours and finishes, and the proposed development’s compatibility with the characteristics of the site and the locality,

(c)  the building form and design, ensuring that the building is articulated and varied, and provides a fine-grained residential built form, an individual dwelling identity and street address,

(d)  the location of buildings on the lot and the relationship of the building to the public street,

(e)  measures to minimise any potential impacts on the amenity of any adjoining residents,

(f)  the capacity of the building design, where possible, to encourage active street frontages,

(g)  whether the garden setting establishes a standard of presentation that is comparable with adjacent dwellings and parks, or the immediate landscape setting.

  1. Subclause 6.17(3) requires the consent authority to consider a number of matters.

  2. Clause 6.23 states: 

6.23   Essential services

(1)  Development consent must not be granted for development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

(a)  the supply of water,

(b)  the supply of electricity,

(c)  the disposal and management of sewage,

(d)  stormwater drainage or on-site conservation,

(e)  suitable vehicular access.

(2)  Development consent must not be granted for the subdivision of land to create additional lots unless each lot resulting from the subdivision (other than any lot created for the purpose of a public reserve, public road or other public purpose) will be serviced by a reticulated sewerage system and a potable water system.

(3)  Despite subclause (2), development consent may be granted for the subdivision of land in Zone RU2 Rural Landscape or Zone E3 Environmental Management to create additional lots if the consent authority has considered a geotechnical assessment that demonstrates that the land is adequate for the on-site disposal of effluent and the on-site disposal of effluent will not have any adverse environmental impacts.

(4)  Development consent must not be granted for development that requires the disposal and management of sewage unless the consent authority is satisfied that—

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

(b)  if the development cannot be connected to a reticulated sewerage system—a geotechnical assessment and water balance report prepared by a suitably qualified person indicates that the land on which the development will be situated is adequate for the on-site disposal of effluent and that the disposal will not have any adverse impact on land in Zone C2 Environmental Conservation.

(5)  A geotechnical and water balance report prepared for the purposes of subclause (4) must assess the following—

(a)  the proposed waste water system,

(b)  site selection criteria to determine the most appropriate location for the proposed waste water system,

(c)  the capability of the site to provide for the disposal of waste water.

(6)  Despite subclause (4), development consent must not be granted for development for the purpose of bed and breakfast accommodation, boarding houses, dual occupancies or multi dwelling housing unless the consent authority is satisfied that the land is or will be serviced by a reticulated sewerage system that has the capacity to service the proposed development.

(7)  Despite subclause (4), development consent may be granted for development for the purpose of a dwelling house that will be serviced by a waste water pump out system if—

(a)  the development cannot be serviced by a reticulated sewerage system, and

(b)  the dwelling house is erected on a lot created before 27 December 1991.

  1. This is a jurisdictional matter. 

  2. Mr Seton then discussed the requirements of the BMDCP, which provides more detail and specificity as to what is required to implement the planning controls. I draw attention to the discussion about road access. 

“[SETON:] […] (b) maintain the natural hydrologic behaviour of catchments and (c) protect the water quality of surface and groundwaters.

And I think then if you can go over the page please, Commissioner, page 200, top of the page, C1 is the control.  It says the controls in this part of the DCP apply to all types of development including additions and alterations, demolition and rebuild and new development on vacant land.  C3 small scale development includes relevantly at (b) where the total impervious area of the proposed development is less than 2,500 square metres.  C4 small scale developments that provide appropriate stormwater quality treatment and quantity control devices to provide water conservation and reuse, detention, retention and filtering, infiltration and dispose in accordance with the small scale development provision of part C6.1.3 of the DCP.

And then C6.1.3 is headed Water Sensitive Urban Design for Small Scale Development and then the controls at C1 maximise onsite retention and reuse of stormwater run off through measures such as rainwater tanks, dual plumbing and accredited greywater use. Over the page, on the right hand side, page 202 down the bottom, stormwater design. C5 all stormwater management measures to be located within the site boundaries and not to resolve impacts on adjoining properties. C6 minimise hydrologic impacts by (a) ensuring that the design location and the function of stormwater management devices protects, restores or replicates the natural water cycle for the site; (b) maintaining pre-development surface and groundwater regimes, run-off volumes and natural flow velocities, rates, peaks and durations; (c) maintaining the site’s natural topography, landforms, catchment areas, drainage patterns and flow paths by minimising cut and fill and avoiding redirection of surface flows.

  1. The ecology experts agreed that the available information did not permit the achievement of cll 6.1, 6.6, 6.7 and 6.8.

  2. The engineering experts, Ms Hawken and Dr Shrestha were not examined but in their Joint Report (Ex F) they agreed the construction of a ford would have had excessive impact on the flow regime. Although the experts discussed, properly, alternatives they were not adopted and so were not part of the application under consideration. Mr Doyle in par 3.29 of his Outline of Submissions states that the Joint Report of the stormwater experts wrongly asserted that the ford is not feasible.

  3. However, his argument does not cite any expert evidence in support, and it is an assertion not adopted by the established experts of both parties.

Contention 4 – Impact on biodiversity

  1. Contention 4 is the impact on biodiversity and failure to obtain a BDAR.

  2. The Applicant considers that a BDAR is not required.

  3. However, s 7.7 of the BC Act applies to the application and provides:

…

(2)  If the proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report.

  1. Section 7.2 of the BC Act provides a development is likely to significantly affect threatened species if (s 7.2(1)(b)):

…

(b)  the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values…

  1. Section 6.3 provides the assessment of impacts as being:

(a)  the impacts of the clearing of native vegetation and the loss of habitat,

(b)  the impacts of action that are prescribed by the regulations.

  1. The proposed development involves the clearing of native vegetation so that the BOS applies to the impacts of the proposed development on biodiversity values.

  2. Clause 7.2(3) of the BC Regulation 2017 provides that:

(3)  In the application of the Table to this clause—

(a)  if the proposed development does not comprise only the clearing of native vegetation—the area of clearing is the total area of proposed clearing irrespective of the number of lots concerned or the ownership of those lots, and

(b)  if the proposed development comprises only the clearing of native vegetation—the area of clearing is the total area of proposed clearing—

(i)  over the lots in the same ownership (unless subparagraph (ii) applies), or

(ii)  over the lots that are worked or operated as a single property (whether or not they are in the same ownership), and

(c)  if the land on which the proposed development is to be carried out comprises different areas of land with different minimum lot sizes—the minimum lot size is the smaller or smallest of those minimum lot sizes, and

(d)  if the proposed development comprises or involves the clearing of more than one patch of native vegetation—the area of clearing is the total cumulative area cleared.

  1. The area of clearing is the total area of proposed clearing irrespective of the number of lots concerned or the ownership of those lots. The minimum lot size for the land which the proposed development is to be carried out is 2000m2 for the Table to cl 7.2, if the area of cleared land is more than 0.25 hectares the BOS threshold is exceeded.

  2. Exhibit K prepared by Ms Nagel indicates that the clearing would exceed 0.25 hectares.

  3. The Applicant’s Outline of Submissions argues that a BDAR is not required but does not provide an alternative estimate of the area, merely stating in par 3.33 that only a minor area of land is to be developed.

  4. In the Applicant’s Submissions in Reply, the Applicant rejects that a BDAR is required and considers that the area to be cleared has been incorrectly calculated. The Applicant does not consider that the area of the access road, which it does not own, should be incorporated in the calculation. However, I am in agreement with the Council’s interpretation of the BC Act. The unmade road currently supports native vegetation and creation of a made road will require clearing of a non-determined area of vegetation as a consequence of the development.

  5. I accept that there is uncertainty as to the actual area to be cleared, particularly as the road route is not fully determined, but I am comfortable that it would exceed 0.25 hectares.

  6. Accordingly, I cannot approve the DA as it is not accompanied by a BDAR.

Contention 5 - Impact on slope constraint land

  1. Clause 6.4(3) of the BMLEP 2015 provides that development consent must not be granted for development on land to which the clause applies, unless the consent authority is satisfied that:

(a)  all existing native vegetation situated outside any part of the land required for the development will be retained and appropriate measures will be incorporated to facilitate the maintenance of such vegetation, and

(b)  the development will incorporate measures to regenerate any native vegetation that has been cleared from land to which this clause applies that does not form part of the site of any existing or proposed development, and

(c)  the development will not have any adverse impact on the rate, volume or quality of water running off the land, and

(d)  a geotechnical report prepared by a suitably qualified person demonstrates that the soil characteristics and structural elements of the land are suitable for the proposed development, and

(e)  the development cannot practicably be located on land other than the land to which this clause applies.

  1. There is no doubt that a large part of Lot 7 is slope constraint land.

  2. Ms Hawken and Mr Mukherjee in their Joint Report (Ex E p 4) agreed the required report has not been submitted. The Applicant in its Outline of Submissions argues the design reflects the slope of the land and minimises excavation to the minimum extent possible. Tree cover will be maintained as far as practicable in order to protect slopes.

  3. In Submission in Reply, Mr Doyle denies that further assessment of stability is required on the basis that the development of Lot 6 was approved without need for further assessment, but he ignores the fact that his own expert had agreed that the assessment is required.

  4. In the absence of a report which demonstrates structural elements of the land are suitable for the proposed development, and given the uncertainties the extent of works required for the roadway and driveway, I cannot be satisfied of the matter in cl 6.4(3)(d) and therefore I have no power to grant consent to the DA.

Contention 7 - Watercourse crossing

  1. Clause 6.8 applies to land identified as “Protected Area—Watercourses” on the Riparian Land and Watercourses Map; part of the land on which the road is proposed to be constructed is identified on the map.

  2. Clause 6.8(4) requires that I am satisfied that:

(a)  the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b)  if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c)  if that impact cannot be minimised—the development will be managed to mitigate that impact.

  1. The Applicant in its Outline of Submissions pars 3.41-3.45 argues that the stormwater impact is minimal, and that the absorption trenches adjacent to each side of the road will provide efficient and effective distribution of the run-off. The engineering experts in their Joint Report (Ex E p 4) agree that the construction of a ford as proposed in the application is not feasible. Given the agreement of the experts, I cannot be satisfied that the proposed development will be designed to avoid, minimise or mitigate any significant adverse environmental impact, and therefore I have no power to grant consent to the DA.

Contention 8 - Flood planning

  1. Clause 6.10(3) of BMLEP 2015 provides that development consent could not be granted unless I am satisfied that:

(a)  is compatible with the flood hazard of the land, and

(b)  is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c)  incorporates appropriate measures to manage risk to life from flood, and

(d)  is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e)  is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

  1. Clause 6.10 applies to land below the flood planning level which is the level of a 1-in-100 Average Recurrence Interval (ARI) plus 0.5m freeboard. Part of Lot 7 and part of the proposed roadway is land which is below the flood planning level.

  2. The engineering experts in Ex F p 4 agree that the construction of a ford is not feasible, and also that it is not possible to compare the flood levels to the road design plans because the data are not compatible. The Applicant in the Outline of Submissions considers that the proposed ford is the optimal solution and disagrees with the concept of a piered bridge on the ground that Council has not installed such a crossing elsewhere.

  3. It also points to the curriculum vitae of Dr Shrestha showing that he is an expert on erosion caused by piered bridges. However, he fails to mention that in Ex F the experts had agreed that a piered bridge was their preferred design.

Contention 9 - Essential services

  1. Clause 6.23(1) of BMLEP 2015 prevents the granting of development consent unless the consent authority is satisfied that essential services are available or that the adequate arrangements have been made to make them available when required. The essential services include suitable vehicular access. The Applicant argues that essential services are all available to Lot 6, and so accordingly there is no doubt that they are available on Lot 7.

  2. This ignores that there will not be a through access way between Lots 6 and 7.

  3. The Council says because the road design did not adopt the standard crossfall for public roads, the uncertainty of many aspects of the design because of the lack of an arborist's survey and the lack of compatibility of current survey data mean that the impacts of provision of the road cannot be assessed.

  4. Accordingly, I could not reach the necessary level of satisfaction so that development consent cannot be granted.

  5. Even if I am incorrect in my findings on some of the requirements demanded by clauses in Pt 6, a correct finding on any one would prevent the granting of consent.

  6. Accordingly, I am not required to address merit considerations.

  7. The Council in their Closing Submissions considers that if I were to consider merit contentions I would find ample grounds for not approving the application.

  8. Rather than going through the merit considerations in detail I will refer to Contention 15 - insufficient and inadequate information.

  9. There are many instances where the experts agree that more information is required in order to make an assessment. This has been the case ever since the application was first submitted to Council as shown in the referral responses that appear in Ex C. The Applicant had ample opportunities to respond to requests for information. Although some of the requests were met, many were not. If the information gaps which have been identified by experts of both parties had been filled, the assessment process could have progressed. Provision of information would not necessarily led to approval, that is dependent upon what the information reveals, but the process of evaluation of the application could have concentrated on a much more limited range differences between the parties.

  10. Almost at the end of the hearing, Mr Doyle commented:

“DOYLE: Yes.  There did seem to me, and I’m inviting any comment on it, that there is a real issue on the inspection yesterday in agreeing the location in which everybody was standing and I think that has some implications as to the ability of anybody to really consider how all these factors go together.  So that’s an aspect which I think will also need addressing.”

(Tcpt, 18 June 2021, p 83(19-23))

  1. The issue that occurred on the site inspection was the inability of any of those present, including Mr Doyle, to specify the exact location of the boundaries of Lot 7, the footprint of the proposed dwelling and carport, and the boundaries of the road reserve. Given an earlier request from the Council for the marking of the locations, and the general expectation that where there are no existing markers such as the edge of a made road or a boundary with a neighbouring property, and knowing that the boundary positions would be critical to understanding the information and reports available, it would be reasonable to have assumed that boundaries would be marked by surveyors’ pegs or by tape.

  2. To raise as a concern the ability of anybody to really consider ‘how all these factors could go together’ so late in the proceedings, after the evidence had been presented, was unhelpful and unless the necessary surveys were completed and further site inspection by the parties were to occur, could not be acted upon. The Applicant made decisions on how his case was to be run, and if the outcome is that the information provided was not sufficient for the consent authority to have certainty as to the impacts of the proposal so that the consent authority has no jurisdiction to determine the matter then so be it.

  3. Additional major sources of uncertainty were due to the absence of an arborist’s report on trees in the proposed driveway and the road reserve, and the very limited data available on the physical environment and biota of the watercourse.

  4. An arborist’s report is required to locate and identify significant trees, including those with hollows. The experts of both parties were agreed that significant trees should be retained, but whether this is a realistic outcome would require consideration by the engineers - could a road with the appropriate grades, cross fall and radius of curves be designed and built to preserve all the significant trees identified by the arborist and the ecologists? If not, could some necessarily be sacrificed, or would the loss of trees be such as to constitute grounds for refusing consent. There were no data presented on water quality in the watercourse, and there was uncertainty as to whether any relevant data existed. There were no data on the biota of the watercourse. Without knowledge of existing water quality and biota, it is not possible that there could be any certainty about the consequences of the proposed road crossing of the watercourse.

  5. The Applicant did not discuss the reports included in its own exhibits, although Mr Doyle did promote issues, such as the restoration of Aboriginal burning regimes and the acceptability of greater crossfall and gradients of the access road without any supporting evidence, and apparently without discussion with his own experts.

  6. What was referred to as the Applicant’s bundle (Ex 1) was in the form of Ms O’Connell's affidavit, to which a number of expert reports were attached. I asked Mr Doyle about the bundle:

“COMMISSIONER: You don’t want to say anything in detail about anything that’s in your bundle?

DOYLE: We commend the bundle to you, Commissioner, and we’ll take you to it in detail, if it’s necessary, later.  The principal components of it are the individual expert reports that were prepared by our experts and we say that they represent a proper analysis of the situations that are relevant.  We had some criticism to which we will elaborate this morning in the council’s experts not really responding in the appropriate way.  So we don’t need to take you in detail to it.  We’ve commended if you read that to understand or consider our further submissions but we’re not seeking to take you through it in detail this morning.”

(Tcpt, 18 June 2021, pp 8(44)-9(5))

  1. Detailed reports of the Applicant’s experts also appear in the Class 1 Application and related documents, tendered, somewhat belatedly, as Ex L. Included amongst the report saw a Flora and Fauna Constraints Assessment provided by Narla Environmental (Ex L folios 74-117), and this provided the background built upon by Mr James in Ex 1 folio 177.

  2. In Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 641, Preston CJ of the LEC stressed at [2] that:

“2 […] an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed.”

  1. The burden on the Applicant includes ‘providing information and arguments so that the relevant environmental impacts can be satisfactorily addressed’.

  2. In this matter it is clear, and agreed in the Joint Reports of the experts that the information gaps in the evidence mean that the Applicant has not provided the information and arguments required.

Can the information gaps be addressed by conditions?

  1. The Council's position is that the appeal must be dismissed. The Applicant considers that the appeal should be upheld, and that development consent should be granted with appropriate conditions.

  2. The Council, despite its preferred outcome had, as is required, produced on a ‘without prejudice’ basis, draft conditions of consent to be applied in the event that the Court were of a mind to uphold the appeal (Ex J).

  3. The proposed draft conditions are in two parts:

  1. Part 1 (Draft Deferred Commencement Matters) comprising 10 conditions, and

  2. Part 2 (Draft Operational Conditions) comprising 54 conditions.

  1. The Deferred Commencement Consent would not operate until the Applicant satisfies the Council of the matters in Part 1. The Applicant must produce evidence to the Council sufficient to enable it to be satisfied, within 12 months from the date of the deferred consent is granted.

  2. The draft deferred consent conditions address the need to provide reports and plans to address the information deficit clearly identified in the Joint Reports.

  3. Condition 1 requires a flora and fauna assessment to be prepared, complying with a set of criteria.

  4. The report is to include information to confirm that the BOS does not apply or provide a BDAR. To confirm that the BOS does not apply will require calculation of the area affected by the proposed development in order to determine whether the BOS threshold would be exceeded. However, the note to this condition points out that the EPA Act and the BC Act require submission of the documents requested by the draft conditions with the DA so the biodiversity impacts can be considered in determining whether consent should be granted. The information that would be required for the BDAR needed to be provided as it would inform decisions of whether development consent conditions were appropriate. If the BOS threshold were exceeded the BDAR would have to have been submitted with the application.

  5. Draft Conditions 2 - 8 require certain data to be collected in order for the consent authority to make the required assessment of the DA.

  6. Draft Condition 7 requires that road design is responsive to the arborist’s report. The design of the roadway is expressly not to incorporate driveways for Lots 8 and 9. The design is only for provision of access to Lot 7.

  7. Draft Condition 9 requires that a letter is received from Sydney Water in regard to the availability of provision of a reticulated water supply, the route of any proposed extensions to mains or piped services, and a letter or advice that Lot 7 can be serviced by, and how this can be achieved.

  8. If these services can be provided, then how much alteration of the native vegetation communities would be required? Assessment of the impacts would require input from relevant Council departments and experts.

  1. Draft Condition 10 is the only Part 1 condition that is straightforward and is unlikely to open up other issues. It requires amended plans of a revised building design that limits the length of the building in the unbroken roofline to 15m length.

  2. Part 2 - Draft Operational Conditions contains conditions which are common to the majority of DA approvals, but also a number which reflect the location of the site and of the specific nature of the proposed development. Satisfying some of these provisions may impose onerous requirements on the Applicant and may constrain the nature of development that could feasibly be carried out.

  3. It is essential that the conditions provide certainty as to what would constitute the approved development. A concern with deferred consent conditions is that when the consent is issued there is the potential for uncertainty. The studies required by some of the commencement conditions may create a circumstance where further changes to the application are required.

  4. The uncertainty created by the current information gaps may be further compounded if the deferred commencement conditions are applied. While there are circumstances where deferred comment conditions are desirable, I do not think that the current application provides those circumstances, and I would not endorse the Council’s draft deferred commencement conditions.

Orders

  1. Accordingly, the Court orders:

  1. The appeal is dismissed.

  2. Development application no. X/391/2020 for the erection of a single dwelling house and associated carport; installation of a 20,000 litre rainwater tank; construction of a driveway: construction of a vehicular access road on the unformed and unconstructed public road, including a watercourse crossing; clearing of trees and other vegetation and earthworks to facilitate the development of Lot 7 and the public road at 11-17 Surrey Street, Bullaburra, NSW 2784 is determined by refusal of consent. 

  3. The exhibits are retained.

……………………

P Adam

Acting Commissioner of the Court

**********

Decision last updated: 19 June 2023

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