Saffioti v Kiama Municipal Council

[2018] NSWLEC 1426

Land and Environment Court

New South Wales

Medium Neutral Citation:	Saffioti v Kiama Municipal Council [2018] NSWLEC 1426
Hearing dates:	11 May 2018
Date of orders:	13 August 2018
Decision date:	13 August 2018
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders:  (1) The Applicant is granted leave to rely on amended plans. (2) The appeal is dismissed. (3) Development application DA10.2016.185 for construction of a new dwelling, including a residence and garage, shed and guest sleeping pavilion, along with ancillary works, is determined by refusal. (4) The exhibits are returned, with the exception of Exhibit 1.
Catchwords:	Development Application: existing use rights, the extent to which Kiama LEP 2011 and Kiama DCP 2012 derogate from the Applicant’s existing use rights; impact of the proposed development on native vegetation and an endangered ecological community.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Environmental Protection Biodiversity Conservation Act 1999 Fisheries Management Act 1994 Kiama Development Control Plan 2012 Kiama Local Environment Plan 2011 Land and Environment Court Act 1979 Threatened Species Conservation Act 1995 Uniform Civil Procedures Rules 2005
Cases Cited:	Browne v Dunn (1893) 6 R 67 Connoisseur Property Holdings Pty Ltd v North Sydney Council [2018] NSWLEC 1000 Davies v Penrith City Council [2013] NSWLEC1141 oOh! Media Assets Pty Ltd v Council of the City of Sydney [2016] NSWLEC 47 oOh Media Assets Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1269 Pafburn v North Sydney Council [2005] NSWLEC 444 Saffioti v Kiama Municipal Council [2017] NSWLEC 65 Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587
Category:	Principal judgment
Parties:	Connie Saffioti (Applicant) Kiama Municipal Council (Respondent)
Representation:	Counsel: A Pearman (Applicant) S Nash (Respondent)   Solicitors: ME MacMahon and Associates (Applicant) RMB Lawyers Respondent)
File Number(s):	2016/310397
Publication restriction:	No

Judgment

Background

1. COMMISSIONER: Connie Saffioti (the Applicant) has appealed the deemed refusal by Kiama Municipal Council (the Respondent) of her development application DA10.2016.185 for construction of a new dwelling, including a residence and garage, shed and guest sleeping pavilion, along with the upgrading of an access road, the provision of asset protection zones (APZs), a wastewater treatment facility, and power/communications services. Together these features comprise the Applicant’s proposed development.

2. The proposed development would be located at 29 Thompson’s Rd, Broughton Village, formally identified as Lot 117 in DP 751254 (the Subject Site). The Subject Site’s location is illustrated in the figure below, which is reproduced from the joint report of the ecology experts (see below at [106]) tendered as evidence at the hearing.

3. The appeal is made pursuant to s 97(1) (now s 8.7(1)) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

4. The Subject Site is, for the greater part, zoned E2 Environmental Conservation under Kiama Local Environment Plan 2011 (KLEP). Small portions of the Subject Site are zoned RU2 Rural Landscape in its south-eastern corner and E3 in its north-east corner. A Crown road reservation bisects the Subject Site’s southwest corner. These zonings are illustrated in the figure below, also reproduced from the joint report of the ecology experts (see below at [106]) which was tendered as evidence at the hearing.

5. The objectives and relevant land use provisions applicable to these zones are provided below at [25] to [33].

6. The proposed development would, for the greater part, be located on land that is zoned E2 Environmental Conservation, but it also includes an access road, with creek crossing, portions of which are proposed to be located on land zoned RU2 Rural Landscape.

7. The dwelling that forms part of the proposed development is described as a ‘pavilion style’ development, and would have a footprint of 644m2. This would include terraces, decks and courtyards. A proposed farm work shed/garage would have an additional footprint of 190m2.

8. The Applicant has proposed that the new dwelling would replace an existing dwelling on the Subject Site. That existing dwelling is proposed to be ‘decommissioned’ and used as an artist’s studio. The existing dwelling has a footprint of 109m2, and is also situated as part of the Subject Site zoned E2.

9. Construction of a dwelling is prohibited on land zoned E2 under the provisions of KLEP, which is the applicable environmental planning instrument (see below at [28]) for the regulation of development on the Subject Site.

10. Prior to this matter coming before me, the application in this appeal was the subject of a hearing before Molesworth AJ on 8 February 2017 (Saffioti v Kiama Municipal Council [2017] NSWLEC 65) on a separate question as follows:

Whether the proposed development for the purpose of a dwelling (Proposed Development) under Development Application no. 10.2016.185 is prohibited development on Lot 117 DP 751254 (Lot 117) known as 29 Thompsons Road, Broughton Village, under an E2 Environmental Conservation zone in Kiama Local Environmental Plan 2011 (KELP) or is permissible by reference to clause 42 of the Environmental Planning and Assessment Regulation 2000.

Specifically, whether the proposed development involves an increase in the area or use made of Lot 117 for the existing use of a dwelling house on lot 117 that has been actually physically or lawfully used for the coming into force of KLEP.

11. In his judgement on this separate question, Molesworth AJ noted (at [10]), that:

As the proposed new dwelling is a substantially larger structure than the existing dwelling and is proposed to be erected on a part of Lot 117 that is some considerable distance away from the existing dwelling site, it is not disputed that the existing use provisions (if operative) require that such development obtain prior development consent: ss 107 and 108 of the EPA Act and Pt 5 of the Regulation. The critical question is whether the proposed development falls within the ambit of the land subject to the existing use provisions. That is to say, do the existing use provisions allow development consent to be granted to the proposed development? This question arises because cl 42 of the Regulation restricts the privilege of enlarging, expanding or intensifying an existing use to “…the land on which the existing use was carried out immediately before the relevant date”.

12. His Honour then found that, notwithstanding the provisions of KLEP with respect to land zoned E2, the proposed development benefits from existing use rights, and is therefore allowed, with development consent, under the provisions of cl 42 of the Environmental Planning and Assessment Regulation 2000 (the Regulation).

13. The appeal now comes back before the Court under s 34AA of the Land and Environment Court Act 1979 (the LEC Act), and, as a consequence, was the subject of a conciliation conference on 12 October 2017.

14. An inspection of the Subject Site was undertaken as part of the conciliation conference. No objectors sought to make submissions to the Court in relation to this appeal.

15. The Parties were unable to resolve the matters in contention between them during the conciliation phase of the proceedings, and so the conciliation process was terminated, and the matter was set down for hearing.

Statutory context

Environmental Planning and Assessment Act 1979

16. Section 4.15(1) (previously s 79C(1)) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

17. Section 4.15(3A) of the Kiama Development Control Plan 2012 (previously s 79C(3A)) further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

18. Sections 4.65, 4.66, 4.67 and 4.68 of the EP&A Act (previously ss 106, 107, 108 and 109, respectively) concerning exiting use are also of relevance in this appeal. Those sections provide as follows:

1. s 4.65 Definition of ‘existing use’

In this Division, existing use means:

(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and

(b) the use of a building, work or land:

(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

2. s 4.66 Continuance of use and limitations on existing use

(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2) Nothing in subsection (1) authorises:

(a) any alteration or extension to or rebuilding of a building or work, or

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or

(e) the continuance of the use therein mentioned where that use is abandoned.

(3) Without limiting the generality of subsection (2)(e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

3. s 4.67 Regulations respecting existing use

(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:

(a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and

(b) the change of an existing use to another use, and

(c) the enlargement or expansion or intensification of an existing use.

(2) The provisions (in this section referred to as "the incorporated provisions") of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.

(3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

(4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 4.33 to a development application for consent to carry out prohibited development.

4. s 4.68 Continuance of and limitations on other lawful uses

(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.

(2) Nothing in subsection (1) authorises:

(a) any alteration or extension to or rebuilding of a building or work, or

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or

(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or

(e) the continuance of the use therein mentioned where that use is abandoned.

(3) Without limiting the generality of subsection (2)(e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

Environmental Planning and Assessment Regulation 2000

19. In line with the provisions of s 4.67 of the EP&A Act, the Regulation makes the following provisions with respect to existing use rights, which are of particular relevance in this appeal:

1. Clause 41 Certain Development Allowed, which provides:

(1) An existing use may, subject to this Division:

(a) be enlarged, expanded or intensified, or

(b) be altered or extended, or

(c) be rebuilt, or

(d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or

(e) if it is a commercial use - be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or

(f) if it is a light industrial use - be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act).

(2) However, an existing use must not be changed under subclause (1)(e) or (f) unless that change:

(a) involves only alterations or additions that are minor in nature, and

(b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and

(c) does not involve the rebuilding of the premises associated with the existing use, and

(d) does not involve a significant intensification of that existing use.

(3) In this clause:

"commercial use" means the use of a building, work or land for the purpose of office premises, business premises or retail premises (as those terms are defined in the Standard Instrument).

"light industrial use" means the use of a building, work or land for the purpose of light industry (within the meaning of the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006).

1. As discussed above at [11] and [12], in the Court’s consideration of the separate question, Molesworth AJ, characterised the Applicant’s proposed development such that it the existing use was to be enlarged, expanded or intensified, and as a consequence, pursuant to cl 41(1)(a) of the Regulation, is subject to the provisions of cl 42 of the Regulation.

2. Clause 42 provides:

(1) Development consent is required for any enlargement, expansion or intensification of an existing use.

(2) The enlargement, expansion or intensification:

(a) must be for the existing use and for no other use, and

(b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

20. The earlier judgment of Molesworth AJ in this matter (see above at [12]) confirmed that the proposed use is for ‘the existing use’ (that is, for use as a dwelling), and that it will be carried out on the land on which the existing use was carried out immediately before the relevant date, in this case within the boundaries of the Subject Site.

21. Section 4.15 of the EP&A Act requires that in determining a development application to grant consent, a consent authority is to take into consideration various matters of relevance to the development the subject of the development application. These are detailed above at [16], and include the provisions of KLEP as required under s 4.15(1)(a)(i) and KDCP under s 79C(1)(a)(iii), as applied in line with the requirements of s 4.15(3A).

Kiama Local Environment Plan 2011

22. Development on the Subject Site is subject to the KLEP. The aims of which are:

(1) This Plan aims to make local environmental planning provisions for land in Kiama in accordance with the relevant standard environmental planning instrument under section 33A of the Act.

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

(a) to provide planning controls for the Kiama area to achieve ecologically sustainable development principles while recognising the economic, environmental and social impacts and risks associated with climate change,

(b) to maintain, protect and improve the natural environment including native vegetation, endangered ecological communities, natural habitat corridors, riparian land, groundwater dependent ecosystems and wetlands for their biodiversity values,

(c) to conserve and protect the area’s water resources, groundwater, waterways, and water quality for their biodiversity, ecological, health and recreational values,

(d) to protect agricultural land and restrict its fragmentation for purposes other than primary production,

(e) to protect and enhance the coastal and rural character of Kiama’s rural towns, neighbourhoods and villages, and the characteristic scenic landscapes that contribute to its liveability and identity,

(f) to consolidate future population growth and medium density housing primarily in locations near shops and public transport,

(g) to cater for housing choice including affordable rental housing, affordable housing for first home buyers and housing for the aged and disabled and independent seniors,

(h) to protect and maintain land used or to be used for employment in rural and urban areas,

(i) to promote and co-ordinate the orderly and economic use and development of land,

(j) to maintain, protect and enhance environmentally sensitive land for its biodiversity and ecological values,

(k) to protect Kiama’s cultural heritage.

23. As previously noted above at [4], under KLEP the greater part of the Subject Site is zoned E2 Environmental Conservation, with small portions zoned RU2 Rural Landscape and E3 Environmental Management, and with a Crown road reservation bisecting the land, as illustrated above between [4] and [5].

24. Also as noted earlier at [6] and [8], the existing dwelling on the Subject Site is located on land zoned E2, and the proposed development is also proposed to be constructed on land zoned E2.

25. The Objectives of E2 zoned lands are.

• 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 ensure adequate environmental buffers are provided, maintained or rehabilitated in the vicinity of high ecological value areas and waterways

26. Permitted uses within this zone are:

2 Permitted without consent

Environmental protection works

3 Permitted with consent

Environmental facilities; Recreation areas; Roads

27. Prohibited uses in this zone are

4 Prohibited

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

28. A dwelling house and ancillary works, such as is proposed in this appeal, would normally be a prohibited use in land zoned E2, as it is a development not specified in sections 2 or 3 of the land use table for that zone.

29. However, this prohibition is overcome by the earlier decision of Molesworth AJ in this matter (see above at [11] and [12]).

30. Part of the access road for the proposed development will pass through that portion of the Subject Site zoned RU2.

31. The Objectives of the RU2 zone (Rural Landscape) for land with that zoning are:

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

• To maintain the rural landscape character of the land.

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

• To protect agricultural land for long term agricultural production.

• To provide opportunities for employment-generating development that adds value to local agricultural production through food and beverage processing and integrates with tourism.

32. Permitted uses within the RU2 zone are

2 Permitted without consent

Environmental protection works; Extensive agriculture; Home occupations

3 Permitted with consent

Agricultural produce industries; Air transport facilities; Animal boarding or training establishments; Aquaculture; Bed and breakfast accommodation; Building identification signs; Business identification signs; Cellar door premises; Cemeteries; Community facilities; Crematoria; Dairies (restricted); Dwelling houses; Environmental facilities; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Highway service centres; Home-based child care; Home businesses; Home industries; Home occupations (sex services); Industrial retail outlets; Information and education facilities; Intensive plant agriculture; Recreation areas; Roads; Roadside stalls; Secondary dwellings; Water supply systems

33. Prohibited uses within the RU2 zones are

4 Prohibited

Any development not specified in item 2 or 3

34. Consequently, the proposed access road is a permitted use in the RU2 zone.

35. As discussed above at [21] in determining a development application to grant consent, a consent authority is to take into consideration various matters of relevance to the development the subject of the development application. These include the development controls applicable to the land on which it is proposed to be constructed, to the extent that those controls do not derogate, or have the effect of derogating, from the incorporated provisions, as required under s 4.67 of the EP&A Act (see above at [18]). This is discussed in detail below at [49].

36. The sections of KLEP that are relevant for the merits assessment of the proposed development in this appeal are as follows:

1. Section 5.9 of KLEP, concerning the ‘Preservation of trees and vegetation’, and which provides:

Preservation of trees or vegetation

(1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.

(2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council.

Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner.

(3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:

(a) development consent, or

(b) a permit granted by the Council.

(4) The refusal by the Council to grant a permit to a person who has duly applied for the grant of the permit is taken for the purposes of the Act to be a refusal by the Council to grant consent for the carrying out of the activity for which a permit was sought.

(5) This clause does not apply to a tree or other vegetation that the Council is satisfied is dying or dead and is not required as the habitat of native fauna.

(6) This clause does not apply to a tree or other vegetation that the Council is satisfied is a risk to human life or property.

(7) A permit under this clause cannot allow any ringbarking, cutting down, topping, lopping, removal, injuring or destruction of a tree or other vegetation:

(a) that is or forms part of a heritage item or that is within a heritage conservation area, or

(b) that is or forms part of an Aboriginal object or that is within an Aboriginal place of heritage significance,

unless the Council is satisfied that the proposed activity:

(c) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area, and

(d) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area.

Note. As a consequence of this subclause, the activities concerned will require development consent. The heritage provisions of clause 5.10 will be applicable to any such consent.

(8) This clause does not apply to or in respect of:

(a) the clearing of native vegetation:

(i) that is authorised by a development consent or property vegetation plan under the Native Vegetation Act 2003, or

(ii) that is otherwise permitted under Division 2 or 3 of Part 3 of that Act, or

(b) the clearing of vegetation on State protected land (within the meaning of clause 4 of Schedule 3 to the Native Vegetation Act 2003) that is authorised by a development consent under the provisions of the Native Vegetation Conservation Act 1997 as continued in force by that clause, or

(c) trees or other vegetation within a State forest, or land reserved from sale as a timber or forest reserve under the Forestry Act 1916, or

(d) action required or authorised to be done by or under the ElectricitySupply Act 1995, the Roads Act 1993 or the Surveying and Spatial Information Act 2002, or

(e) plants declared to be noxious weeds under the Noxious Weeds Act 1993.

Note. Permissibility may be a matter that is determined by or under any of these Acts.

(9) [Not adopted]

2. Section 6.2, concerning ‘Earthworks’, and which provides:

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

(a) to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land,

(b) to allow earthworks of a minor nature without requiring separate development consent.

(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 other development for which development consent has been given.

(3) Before granting development consent for earthworks, the consent authority must consider the following matters:

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

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

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

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any measures proposed to minimise or mitigate the impacts referred to in paragraph (g).

3. Section 6.3, concerning ‘Flood planning’, and which provides:

(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 to 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 in 2005 by the NSW Government, unless it is otherwise defined in this clause.

(5) In this clause:

flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.

4. Section 6.4, concerning ‘Terrestrial biodiversity’, and which provides:

(1) The objective of this clause is to maintain terrestrial biodiversity by:

(a) protecting native fauna and flora, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the conservation and recovery of native fauna and flora and their habitats.

(2) This clause applies to land identified as “Biodiversity land” on the Terrestrial Biodiversity Map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider whether or not the development:

(a) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land,

(b) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna,

(c) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(d) is likely to have any adverse impact on the habitat elements providing connectivity on the land.

(4) Development consent must not be granted to 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.

5. Section 6.5, concerning ‘Riparian land and watercourses’, and which provides:

(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 riparian habitats,

(d) ecological processes within watercourses and riparian areas.

(2) This clause applies to:

(a) land identified as “Category 1 watercourse”, “Category 2 watercourse” or “Category 3 watercourse” on the Riparian Land and Watercourses Map, or

(b) land that is within:

(i) 40 metres from the top of the bank of a Category 1 watercourse, or

(ii) 20 metres from the top of the bank of a Category 2 watercourse, or

(iii) 10 metres from the top of the bank of a Category 3 watercourse.

(3) Before determining a development application to carry out development on land to which this clause applies, the consent authority must consider whether or not the development:

(a) 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 its riparian areas, and

(b) is likely to increase water extraction from the watercourse.

(4) Development consent must not be granted to 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.

Kiama DCP

37. Development on the Subject Site is also subject to the provisions of Kiama Development Control Plan 2012 (KDCP). It was a matter of contention between the Parties as to the extent to which, and indeed whether or not, the provisions of KDCP applied to the proposed development, in the context of the derogation provisions of s 4.67 of the EP&A Act (see above at [18(3)]. This matter is addressed below at [49].

38. The Parties agreed that the controls within KDCP that are of relevance to a merits assessment of the proposed development in this appeal are found within Chapter 6 of KDCP, which concerns ‘Rural Development’.

39. The introduction to KDCP Chapter 6 states that the term ‘Rural’ in the Chapter refers to both rural and environmental protection/management zoned lands. This description of the lands to which Chapter 6 applies are provided in lower case, indicating, in my assessment, that the term ‘environmental protection/management‘ is a reference to the general features of zoning not their specific classifications within the Land Use Table of KLEP, and in which zone titles are referred to with their first letters capitalised.

40. Under the zoning provisions of cl 2.3 of KLEP and its Land Use Table, there are two land use zones that are rural in nature, those being RU1 and RU2. There are also three land use zones that are ‘environmental’ in nature, one of which is referred to as E3 Environmental Management. Neither of the other two land us zones are specifically entitled Environmental Protection. However, land zoned E2 Environmental Conservation includes the following objective:

to protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values

41. Notwithstanding the title of the zone, and putting to one side the question of derogation addressed separately below, the Respondent said, without objection from the Applicant, that the provisions of Chapter 6 apply to land zoned E2 Environmental Conservation. I agree with this submission for the reasons provided at [39] and [40].

42. In further support of this interpretation, I note that that introduction to KDCP Chapter 6 also states that:

Kiama has regionally important environmental and agricultural lands. It is Council’s intention to preserve and maintain these areas as significant natural resources. Accordingly, these additional controls are designed to ensure that any development in these areas is appropriate for future proofing these important natural assets.

43. In relation to proposed development, the Respondent identified during opening submissions, without objection from the Applicant, but subject to the Applicant’s submission in relation to the derogation provisions of s 4.67 of the EP&A Act, that the following specific sections of KDCP Chapter 6 were of relevance in a merits assessment of the proposed development in this appeal.

1. Relevant overall objectives:

to minimise the risk to development posed by climate change and natural hazards such as acid sulphate soils, bushfires, flooding, sea level rise and associated rising water tables and land instability;

to maintain, protect and improve the natural environment including native vegetation and riparian land;

to protect threatened species, endangered ecological communities, natural habitat and riparian corridors, waterways and wetlands;

to protect and enhance the character of the Kiama areas coastal and rural cynic visual landscapes

to protect rural residential amenity.

2. Section 1 – Design, and citing controls for rural dwellings/alterations

1. relevant objectives

to minimise the impact of rural residential development on agricultural land and land occupied by native vegetation, endangered ecological communities and threatened species

to protect rural residential amenity

2. relevant controls

C7 Rural dwellings and ancillary development must be designed and sited to protect agricultural land; avoid/minimise their impact on the natural environment and the scenic landscape; and be clustered rather than dispersed over the property; …

C10 Thorough site analysis is required to inform site planning and design to achieve satisfactory agricultural, environmental, natural hazard risk minimisation and overall amenity outcomes consistent with the aims and objectives of this Policy;

C11 Any existing dwelling that is replaced by a new dwelling must be demolished before the new dwellings occupied unless consent is granted for the dwelling to be used for a purpose.

C12 Ancillary development should also be where possible and practicable clustered around the principal dwelling, or able to utilise the same accessways …

C14 Secondary dwelling must be located to minimise the visual impact and the loss of agricultural land and taking into consideration:

• Clustering with other buildings;

• Sites with low visual impact

• Preference being given to sites with lower agricultural value;

• Sites should not require removal of vegetation

• Preference is given to sites where land take for driveways is minimal.

C15 The reuse of an existing dwelling as ancillary development (including for the purposes of an outbuilding for bed and breakfast accommodation or farm stay accommodation) will not be permitted unless the dwelling satisfies or resulted to satisfy the controls in Kiama LEP 2011, the proposed new principal dwelling and the secondary dwelling or ancillary development complies with all other relevant provisions of this Policy.

3. Section 3 – Access and services infrastructure

1. relevant objectives

To provide clearly identifiable, legal and safe access linkages between public roads and private access roads.

To make sure that that private access roads are suitable for use by conventional two‐wheeled‐drive vehicles and emergency services vehicles.

To minimise the environmental impact caused private access roads and services infrastructure on the land suitable for agriculture, the natural environment, waterways and the scenic landscape, rural dwelling amenity.

To ensure that private access roads meet bush fire protection standards.

To minimise the length of access roads and their associated reduction in the amount of productive or potentially productive agricultural land.

To enable rapid and safe evacuation of residents, and easy access to emergency services vehicles, in the case of a bush fire, flood or storm event or any other emergency requiring access to or evacuation of people from dwellings.

2. relevant controls

C21 Except as required to meet bush fire safety requirements in the particular circumstances of the land, only one access road to a lot or land holding is permitted to be connected to a public road. This does not apply to access to paddocks.

C22 Access to a lot or landholding must only be provided from a public road or a legal right of way that is connected to a public road. …

C25 The location and design must also avoid, minimise or otherwise mitigate any adverse environmental impact on:

• land containing biodiversity/native vegetation as identified in Kiama

• LEP 2011 or other Council vegetation maps.

• land containing any endangered ecological communities.

• a waterway.

• water quality.

• riparian lands identified in Kiama LEP 2011.

• an aquatic ecosystem.

• the natural habitat of a threatened species.

• the scenic landscape of the locality.

• the amenity of other adjoining residents.

C26 An access road must be designed in accordance with this Council’s Engineering technical specifications to minimise visual impact and earthworks.

C27 An access road or any fire trails to a dwelling on a lot or associated with a subdivision containing bush fire prone land must comply with all relevant NSW Rural Fire Services’ requirements.

C28 A soil, water and vegetation management plan must be provided with the development application. Such plan must demonstrate how access road, services infrastructure construction works and revegetation of disturbed land will be managed in the construction and post construction rehabilitation phases to minimise soil erosion, pollution of waterways and to ensure the survival of any required revegetation to maturity.

C29 Revegetation associated with an access road must be addressed in a property landscape plan accompanying the DA.

C30 Applicants must demonstrate how power supply will be provided to the proposed development. On isolated sites or sites that are difficult to service because of physical or environmental constraints, alternative sources of power such as solar energy must be adopted. Details of the proposed method of power supply must accompany a Development Application. …

C33 Transmission lines and communications infrastructure must be located so that they do not require clearing of native vegetation. They must be located and designed to minimises their visibility on the landscape setting in the locality if they will be visible from a public place. Their location adjacent to an access road is generally preferred to minimise visual impact and loss of native vegetation and to facilitate maintenance.

4. Section 7 – On site effluent/waste water disposal system treatment

1. relevant objectives

Applications for rural development will require an appropriately designed and installed on-site effluent disposal system.

2. relevant controls

C44 A Water Cycle Management Study must be prepared by an appropriately qualified professional and submitted with the development application. This plan must take into account disposal of all waste water generated by dwellings and ancillary development, and be able to accommodate peak usage times.

C45 The Water Cycle Management Study must include the following components:

• A clear outline of the proposed development, including a detailed site plan which includes site constraints,

• A summary of the water quality control measures proposed as part of the development and their location,

• A statement, based on the information in the Water Cycle Management Study, as to whether the development has a neutral or beneficial effect on water quality, consistent with the SCA’s Neutral or Beneficial Effect on Water Quality.

5. Section 8 – Environmental considerations

1. relevant objectives

To protect, maintain and enhance native vegetation/biodiversity, endangered ecological communities, natural ecosystems, and riparian and wildlife corridors.

To protect rare and threatened species and their habitats.

To protect waterways, water quality and drinking water catchments from polluting land use or development activities

2. relevant controls

C46 Dwellings and ancillary development must be located as far away as possible from stands of native vegetation to protect biodiversity and threatened species and their habitat, and reduce bush fire risk.

C47 Clearing native vegetation to provide a building envelope in a subdivision in line with clauses contained in chapter 7, or provide access, or provide bush fire Asset Protection Zones (APZ) will not be permitted if cleared areas already exist on the land that would satisfy these purposes without significantly compromising other environmental attributes of the land and the aims and objectives of this chapter.

C48 If development cannot be carried out without clearing native vegetation, an ecological assessment report (prepared by a person with appropriately qualified consultant) must be submitted to:

• identify the amount and type of native vegetation proposed to be removed, identify any endangered ecological communities affected by the clearing of native vegetation.

• justify why that native vegetation or an endangered ecological community should be removed.

• explain what alternatives were considered to clearing of native vegetation or

• endangered ecological communities and why those alternatives are not justifiable or practical alternatives [Note: Cost will not be considered to be an acceptable reason].

• identify what native species of native wildlife, threatened species and native wildlife habitat and natural ecosystems will be affected. …

C54 Riparian land affected by proposed development must be protected and improved through any development.

C55 A property landscape plan (PLP) must be submitted with a development application for the erection of a dwelling house, secondary dwelling, ancillary development, access road, services infrastructure, fencing or works where the proposed development will require:

• clearing of native vegetation.

• revegetation or planting of screening vegetation for land stabilisation.

• visual impact mitigation purposes.

• biodiversity offsets to maintain and improve biodiversity

C56 The property landscape plan must:

• clearly identify strategically important existing and proposed vegetation aimed at screening development to ensure it will be enduring through time and able to be clearly identified by condition(s) of development consent.

• include measures to ensure such vegetation will be maintained and replaced over time if this becomes necessary due to damage, natural death or failure to survive due to human intervention or natural causes.

• maximise the use of local endemic species of plants.

• indicate how the visual impact of any access road and services infrastructure and fencing on the landscape will be mitigated by planting of vegetation.

• must not rely on landscaping and planting alone to be used as an alternative to improved siting options which use the natural landscape and landform to screen or reduce the visibility of proposed development to public view.

6. Section 11 – Planning for adequate response to bushfires

1. relevant objectives

To have regard to the increased threat of bush fires posed by climate change in building in bush fire prone areas.

To reduce the bush fire risk to rural residents, their property assets and emergency services officers who attend bush fire emergencies.

To ensure development in bush fire prone areas is sited and designed in accordance with all relevant best practice policies including NSW RFS publications, Government’s bush fire protection policy.

To avoid widespread clearing of native forest and the associated impact on native biodiversity for bush fire protection purposes where this can be avoided.

2. relevant controls

C60 The erection of a dwelling on a lot containing bush fire prone land must:

•   be located on a lot so that it is less susceptible to a direct bush fire attack threat.

• comply with bushfire protection measures and control standards in the NSW Rural Fire Services’ publication Planning for Bushfire Protection, (including any revised editions or supplementary publications released by the NSW RFS).

C61 A Bush Fire Assessment Report must be submitted with the statement of environmental effects.

C62 Dwellings and ancillary development (including tourist accommodation)

must be located as far as possible on cleared land to:

• minimise the bush fire risk, and

• avoid the need to clear native vegetation to reduce the risk of bush fire attack.

C63 Where feasible, developments should provide for a perimeter road or reserve around the dwelling(s) and associated ancillary development to assist inner protection area management and bush fire fighting.

C64 Provision must be made for access by bush fire fighting and other emergency services vehicles and where necessary, the ability for these vehicles and their emergency services officers and residents to be safely evacuated in the case of extreme bushfire threat.

C65 In some locations, this may require providing an additional alternative means of access to the development in locations where a property is subject to a severe bush fire attack threat. This may also require the applicant/landowner negotiating alternative access arrangements over an adjoining property.

7. Section 12 - Flooding

1. relevant objectives

•   To ensure that dwellings and ancillary buildings are not subject to flooding (including sea/storm surge/tidal inundation).

•   To minimise the risk posed by floods to people and property and emergency services officers who provide assistance in flood emergencies.

2. relevant controls

C67 Where a development proposal requires access over a waterway, consideration must be given in the statement of environmental effects to:

•    any alternative development sites investigated that would avoid creek crossings.

•    explain why any such alternative options investigated were not considered preferable to the proposed site design requiring access across a waterway.

C68 Where a waterway crossing is unavoidable, the level of any waterway crossing must provide a safe carriageway in low flood conditions (i.e. a 1 in 20 year recurrent flood level) and the engineering design of waterway crossings must accompany the development application.

C69 Waterway crossings must be designed to have a negligible impact on the stream flow, riparian vegetation, water quality and fish movements.

C70 Council may require:

•    the rehabilitation, maintenance and improvement of riparian land in the vicinity of a waterway crossing.

•    works to restore the natural form and functions of a waterway within the riparian corridor in the vicinity of a waterway crossing.

C71 Any riparian land rehabilitation, improvement or maintenance must be addressed in the property landscape plan and the Biodiversity Offset Principles outlined in this chapter will apply where biodiversity offsets are involved.

8. Section 13 - Land stability and earthworks

1. relevant objectives

•    To ensure dwellings and other ancillary development on unstable land are located and designed to maximise the structural design of buildings and the safety of their occupants.

•    To minimise the risk of land slip impacting on habitable buildings and access roads.

2. relevant controls

C74 Council may require that a geotechnical report suitably qualified geotechnical consultant and submitted with development application for dwelling or ancillary development for habitable purposes. The geotechnical report must include:

•    Investigation of the stability and suitability of land identified within the identified building envelope for a dwelling and any ancillary habitable buildings.

•    Engineering and design recommendations required to maintain the stability of the development site and the structural safety of any habitable building proposed to be erected within the building envelope.

C75 The design of earthworks associated with dwellings and ancillary development must:

•    minimise the extent of cut and fill to reduce the potential for land slip and visual impact on the landscape.

•    restrict excavation for a building to not more than 1 metre below ground level (existing)

9. Section 14 - Riparian land

1. relevant objectives

To ensure that any development maintains, protect and improves water quality within waterways.

To ensure that any development maintains, protect and improves the stability of the bed and banks of waterways, aquatic and riparian habitats.

To ensure that any development maintains, protect and improves ecological processes within waterways and riparian areas.

To ensure that any development maintains, protect and improves the habitat of threatened aquatic species, ecological communities and populations, and the scenic and cultural heritage values of waterways and their adjoining riparian land

2. relevant controls

C79 Development on or near to land identified as being riparian and in the Kiama LEP 2011 must ensure that it does any negative impact water quality, bank and bed stability, ecological processes and any habitats.

Contentions

44. At the commencement of the hearing the Applicant sought leave to rely on amended plans, and leave was granted without objection from the Respondent. The amended plans were tendered as evidence.

45. The Parties advised that certain engineering matters, including those relating to the proposed development’s compliance with cll 6.2 (Earthworks) and 6.3 (Flood planning) of KLEP, that had been in contention between them, were no longer pressed by the Respondent. This was based on evidence contained in the joint report of the engineering experts, Mr Ashley Bond for the Applicant, and Mr Darren Brady for the Respondent.

46. These matters concerned the engineering aspects of the design of roads and waterway crossings required in order to provide access to the location of the proposed dwelling and associated structures on the Subject Site. The Respondent advised that it was satisfied that these matters had been resolved through the filing of amended plans.

47. The Parties also advised that, based on the outcomes of joint conferencing between the planning experts, they had agreed that contentions in relation to the proposed development’s compliance with the provisions of cl 5.9 of KLEP, concerning the preservation of trees and vegetation, should be addressed through the contention in relation to cl 6.4 of KLEP concerning terrestrial biodiversity.

48. The remaining contentions addressed during the hearing were as follows:

1. How should the provisions of s 4.67(3) of the EPA Act be applied in this case?

2. To what extent do the provisions of KLEP 2011 and KDCP 2012 derogate from the Applicant’s existing use rights?

3. Are the potential impacts of the proposed development acceptable in terms of the standards set down in KLEP, specifically cll 6.4 (Terrestrial Biodiversity), and 6.5 (Riparian land and watercourses)?

4. Are the potential impacts of the proposed development acceptable in terms of the standards set down in KDCP?

How should the provisions of s 4.67(3) of the EPA Act be applied in this case?

49. The full provisions of s 4.67 of the EP&A Act are provided above at [18(3)].

50. Section 4.67(3) requires that any provisions (other than incorporated provisions) in an environmental planning instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions, have no force or effect while the incorporated provisions remain in force.

51. For the purposes of this appeal, the incorporated provisions are those in cll 41 and 42 of the Regulation (see above at [19(1)] and [19(2)], and in line with the provisions of s 4.67(3) of the EP&A Act these incorporated provisions cannot derogate from the Applicant’s existing use rights.

52. Clause 42(1) of the Regulation requires that the enlargement (or expansion or intensification) of the existing use be the subject of a development consent.

53. In order to grant consent, s 4.15(1) of the EP&A Act requires that a consent authority take into consideration such of the matters listed on that section as are of relevance to the development, including any environmental planning instrument (defined under the EPA Act as a LEP or SEPP) and any development control plan to the extent that they do not derogate the Applicant’s exiting use rights.

54. Section 4.15(1)(b) and (c) also require that the merits assessment of the proposed development consider issues of, respectively:

1. the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts on the locality; and

2. the suitability of the site for the development.

55. The application of the requirements of s 4.67(3) of the EP&A Act in this appeal was a matter of differing interpretations between the Parties, each relying on differing lines of authorities.

The Applicant’s submissions on derogation

56. Ms Pearman, for the Applicant, submitted that any provision or standard within KLEP or KDCP which had the effect of either prohibiting the proposed development, because of the nature of the control, or which presented a control that could not be met by the Applicant, would represent a backdoor approach to refusal and so should be viewed as derogating from the Applicant’s existing use rights.

57. Ms Pearman further submitted that any such provision of KLEP or KDCP should have no force or effect in relation to the current application before the Court while the incorporated provisions remain in force.

58. In support of this submission, Ms Pearman asked that the Court consider the judgment of Pain J in Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 (referred to hereafter as simply Stromness, or the Stromness decision) in relation to the controls set down in an LEP and how these might derogate from the existing use rights of an Applicant. Ms Pearman said (Tcpt 11 May 2018 p 57 (21 to 30)) that:

So how would it be seen to derogate, then? It would derogate if effectively, you're going through the back door to get to a refusal. Now, that is something that Payne J (sic) refers to in the Stromness decision at para 96. She says that issue two in the proceedings there had regard to the question of bulk and scale of the building, and on the wider surrounding area, and she said the particulars in the statement of issue specify the applicable height and floor space ratios under the LEP, but these cannot be applied as a basis for refusal. To the extent, therefore, this issue requires the building to be considered in its context, that context cannot be a backdoor method by which to apply development standards in the LEP to the proposed development.

59. In further support of her submission (see above at [56] to [57], Ms Pearman drew the Court’s attention to the judgment of the Commissioner in the case of Connoisseur Property Holdings Pty Ltd v North Sydney Council [2018] NSWLEC 1000 (referred to hereafter simply as Connoisseur, or the Connoisseur decision) in which the Commissioner had stated:

As the development is founded on existing use right it follows that the provisions of the LEP and the North Sydney Development Control Plan 2013 (the DCP) which derogate from the incorporated provisions in the Regulations made under s 106(1) have no force or effect by reason of s 108(3). In other words the Council’s planning controls cannot be used to restrict the proposed development. That said, they remain still relevant as part of the Court’s merit assessment of the DA under s 79C (of) the EPA Act.

The Respondent’s submissions on derogation

60. Mr Nash, for the Respondent, submitted that none of the relevant provisions of KLEP derogate from the Applicant’s existing use rights in accordance with the provisions of s 4.67(3) because they do not prevent the Applicant from making a development application in relation to her proposed development on the Subject Site.

61. He further submitted that no provision within KLEP could be said to either prohibit the proposed development on the basis of the nature of the control, nor would they serve to present a control that could not be met by the Applicant. He concluded, therefore, that no standard within KLEP represented a backdoor approach to refusal of the proposed development in this appeal.

62. Mr Nash drew the Court’s attention to the review of existing use rights decisions by the Court undertaken by Sheahan J in his judgment in the matter of oOh! Media Assets Pty Ltd v Council of the City of Sydney [2016] NSWLEC 47 (referred to hereafter simply as the first oOh! Media decision). This judgment disposed of an appeal, under s 56A of the LEC Act, in relation to a judgment of then Acting Senior Commissioner, Brown ASC, in the case of oOh! Media Assets Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1269 (referred to hereafter simply as the second oOh! Media decision).

63. Mr Nash said that his submission on the correct application of s 4.67, and his interpretation of the derogation of exiting use rights, was consistent with the findings of Sheahan J in the first oOh! Media decision, and in which he had endorsed the conclusions of Brown ASC in his judgment in the second oOh! Media decision.

64. The cases before Sheahan J and Brown ASC concerned an application for construction of a new sign structure to replace an existing sign on a building, and in relation to which the Acting Senior Commissioner had determined enjoyed existing use rights.

65. In the case heard by Brown ASC, the findings in which were upheld by Sheahan J, the Acting Senior Commissioner had found (at [31]) that:

it follows that any derogation must relate to the existing use and not the making of a development application. If a development application can be made there is no derogation when the controls that apply to the development application pursuant to [a] s79C assessment are applied.

66. The Respondent submitted that based on the findings of Sheahan J in the first oOh! Media decision, which binds me, the Court, having accepted that the Applicant’s proposal for the construction of a new dwelling is entitled to existing use rights, must undertake an assessment of the proposed development in line with the requirements of s 4.15C of the EP&A Act, including those controls currently applying, consistent with what Brown ASC has determined was the ‘correct approach’.

67. Further, the Respondent also submitted that the s 4.15C assessment to be undertaken in this matter should be on the basis of the proposed development’s compliance with the currently applying controls and not on the basis of a comparison between the impacts of the proposed development with the impacts of replacing the exiting dwelling in its exiting location. In this regard he drew attention to the further conclusion of Brown ASC (at [35]) that:

The proposition that the assessment of any impacts should be addressed as an exercise in assessing the difference in impacts between the existing sign and the proposed sign must be rejected.

68. Mr Nash noted that this would be relevant in my consideration of the compliance or otherwise of the proposed development with the provisions of cl 6.4 of KLEP, concerning terrestrial biodiversity, and the approach adopted by the Applicant’s expert in its assessment of these provisions (see below at [103] to [105]).

69. Finally, Mr Nash submitted that no provision of KDCP could be said to derogate from the Applicant’s exiting use rights in the manner prescribed in s 4.67(3) of the EP&A Act as a development control plan (DCP) is not an environmental planning instrument (EPI) for the purposes of that Act, wherein an EPI is defined (see s 1.4 (formerly s 4) of the EP&A Act) in the following terms:

environmental planning instrument means an environmental planning instrument (including a SEPP, LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force.

70. In relation to the judgement of the Commissioner in the Connoisseur case, discussed above at [59], Mr Nash submitted that because a DCP is not an EPI for the purposes of the EP&A Act, and contrary to the statement of the Commissioner in that case, the provisions of a DCP cannot derogate the Applicant’s existing use rights in the manner envisaged under the provisions of s 4.67(3) of the EP&A Act.

71. Mr Nash drew the Court’s attention to the fact that the Commissioner in the Connoisseur case made no reference to the findings of Sheahan J in the first oOh! Media decision, which would have been binding on her, as they are on me in this appeal, and which may have assisted in clarifying the intent of the Commissioner’s statement (at paragraph [3] of the judgment) in Connoisseur.

Further submissions of the Applicant

72. Ms Pearman further drew to the Court’s attention, certain additional issues that had been considered by Pain J in her judgment in Stromness (see above at [58]) that she considered pertinent to the Court’s consideration of issues in the current appeal.

73. In particular Ms Pearman said, in relation to the judgment of Pain J, (Tcpt 11 May 2018 p 56 (41 to 44)):

Then she states at 82, "In the absence…town planning principles." The inference there is that her Honour is saying that one sets aside the LEP requirements and DCP requirements that would derogate but one does a s 79C MERIT assessment. That is to be accepted. But quite clearly in terms her Honour has had regard to not only an LEP but also a DCP. I want to make that distinction here because, in my submission, it is important that a judge of this Court, alongside Sheahan J, has had regard to the question of the sort of controls which should apply and her Honour is of the view that one effectively sets asides any LEP or DCP provisions which would have the effect of derogating..

74. Ms Pearman went on to say (Tcpt 11 May 2018 p 57 (1-19)), and referring to the decisions of Sheahan J and Brown ASC discussed above at [62] to [68], that:

It would seem, Commissioner, that that is not the approach taken by Commissioner Brown in his para 35. We know in the oOh!media case that para 138 I think it is, is the one that my friend took you to - 158, where his Honour said "No issue arises…criticised paragraph 35." We know in the para 35 that what Commissioner Brown said was that "Any s 79C assessment…the correct approach." In other words, all the LEP controls and presumably any DCP controls as well. That was Commissioner Brown's view.

We know that [in] oOh!media, Sheahan J agreed with that approach but here you've got two judges of the Court who are saying different things. We have a decision by Sheahan J. He does reference the Stromness decision but says nothing about the fact that Pain J has seen fit to set aside the LEP and DCP controls, which would have the effect of derogating, doesn't address that. So you have two decisions sitting side by side, and now you have a decision of the Court also of, true it is a Commissioner, but it is the Senior Commissioner now who has looked squarely at this question of certainly the DCP controls in her para 3 of the Connoisseur decision, and she is quite clearly of the view that any LEP or DCP controls which would seem to derogate must be set aside.

My considerations of the Parties’ Submissions on Derogation

75. In the current appeal, the decision of Molesworth AJ (see above at [10] and [12] confirmed the existing use rights available to the Applicant, setting aside the prohibition that otherwise would apply to a proposal for a dwelling house on land zoned E2 under KLEP. A consequence of this is that the Applicant’s appeal against the Respondent’s refusal of her development application for the proposed development within land zoned E2, is able to proceed as an existing use of the Subject Site.

76. In his decision in the first oOh! Media case, Sheahan J provided an extensive review of the relevant case law concerning existing use rights and the so-called correct approach that should be taken with respect to applying the provisions of s 4.67(3) of the EP&A Act, and the basis for a subsequent assessment under s 4.15C of the EPA Act of an application relying on existing use rights.

77. In this regard, His Honour endorsed the conclusions of Brown ASC ion the second oOh! Media case, that, in relation to the new sign structure proposed in his matter:

I accept that the existing use rights are limited to the use of the structure, that is for displaying signage rather than the structure itself. This has a significant impact on the assessment of the impacts of the proposed sign. In accepting that the signage, rather than the sign structure, has existing use rights, the general approach of the council experts that any s79C assessment must be made on the sign is a new structure and subject to the currently applying controls is the correct approach…

78. Having considered the submissions of Parties, I concur with the submission of the Respondent that the findings of Sheahan J do bind me, and, based on this, the Court, having accepted that the Applicant’s proposal for the construction of a new dwelling is entitled to existing use rights, must undertake an assessment of the proposed development in line with the requirements of s 4.15C of the EP&A Act as described at [66].

79. I have also reviewed the decision of Pain J in Stromness, in which Her Honour says (at [96]):

The particulars of the statement of issues specify the applicable height and floor space ratio under the LEP but these cannot be applied as a basis for refusal.

80. Her Honour’s reasons for deciding that these specific controls could not be used as a basis for refusal are then provided in her following paragraph [97] in which she states:

97 While I agree with Mr Ingham that the proposal would be prominent in the location as is the current residential flat building and appear to be somewhat bulkier due to the flat roof across the whole building footprint compared to the existing structure with the double storey gable roof, I consider the Applicant has confined the proposal largely within the footprint of the two buildings it is replacing. That is clear from the plans and the comparison table provided in the Applicant’s submissions. Given that it is an application to rebuild, it is appropriate to be mindful of what is intended to be replaced by the rebuilding. If Mr Ingham’s view that one storey should be removed is adopted, then I consider that his assessment is a de facto application of the height limits for this zone in the LEP and it is clear that s 108(3) does not allow that approach.

81. In this paragraph, Pain J said that ‘[g]iven that it is an application to rebuild, it is appropriate to be mindful of what is intended to be replaced by the rebuilding’. Her Honour also stated that ‘the Applicant has confined the proposal largely within the footprint of the two buildings it is replacing’.

82. Based on these statements, I conclude that Her Honour decided in this matter that the specific floor space ratio and building height controls within the relevant LEP could not be a basis for refusal as they would derogate the Applicant’s existing use right to replace a building with a particular bulk and scale with a building of similar bulk and scale.

83. Having considered the conclusions of Sheahan J and Pain J in their judgments, and mindful of particular characteristics of the proposed development that is the subject of this appeal, I have concluded that:

1. The specific circumstances of the proposed development in Stromness, where the Applicant’s existing use rights were relied upon to support the replacement a building with a particular bulk and scale with a building of similar bulk and scale, do not arise in this case. Consequently, the specific consideration of Pain J that led her to conclude that the applicable height and floor space ratio under the LEP could not be applied as a basis for refusal, are unlikely to arise in the current appeal. I note, in particular, that, unlike the circumstances in Stomness, the bulk and scale of the proposed development in this appeal differs significantly from the bulk and scale of the existing dwelling on the Subject Site that the Applicant now it seeks to replace.

2. In contrast, the findings of Sheahan J, supporting the decision of Brown ASC, in the two oOh! Media cases, are of direct relevance to my considerations in this appeal. This is particularly so, given that the specific circumstances considered by Pain J in Stromness (see above at [(1)], do not arise in this appeal.

84. Unless the circumstances of Stromness had been shown to exist in this appeal (and as noted above at [83(2)] it my assessment they have not been so demonstrated), then the approach endorsed by Sheahan J, as identified by Brown ASC, as the ‘correct approach’ in the second oOh! Media case should be followed in this appeal in undertaking the assessment of the proposed development in line with the requirements of s 4.15C(1) of the EP&A Act.

85. Finally, having reflected on the Commissioner’s statement in her judgment in Connoisseur (see above at [59]), and having considered the submissions of the Parties, I have concluded that:

1. I concur with the Commissioner’s statement in Connoisseur that the provisions of a LEP and DCP ‘remain still relevant as part of the Court’s merit assessment of the DA under s 79C [of] the EPA Act’.

2. I also concur with the Commissioner’s position that, for developments founded on an existing use right, it follows that the provisions of the LEP which derogate from the incorporated provisions in the Regulations made under s 106(1) have no force or effect by reason of s 108(3);

86. I also agree with the submission of Mr Nash above at [70], that no provision of KDCP could be said to derogate from the Applicant’s exiting use rights as a development control plan (DCP) is not an environmental planning instrument for the purposes of the EP&A Act, under s 1.4 of that Act, and so the provisions of a DCP cannot derogate in the manner prescribed in s 4.67(3).

87. Consequently, I cannot concur with the Commissioner’s statement in Connoisseur (see above at [59]) that, for developments founded on an existing use right, it follows that the provisions of a DCP which derogate from the incorporated provisions in the Regulations made under the former s 106(1) have no force or effect by reason of the former s 108(3).

88. In relation to the Commissioner’s statement (see above at [59]) that ‘in other words the Council’s planning controls cannot be used to restrict the proposed development’, I would observe that this would seem to be odds with the statement of the Commissioner that follows immediately, which is to the effect that the controls ‘remain still relevant as part of the Court’s merit assessment of the DA under s 79C [of] the EPA Act’. It may be that the Commissioner’s use of the word ‘restrict’ in this sentence had a specific intent in the context of that judgment. However, such an intent was not able to be discerned by me in this instance. Consequently, I cannot rely on that element of the Commissioner’s statement for guidance in the current appeal.

89. In conclusion, and having considered the submissions of the Parties, including their submissions in respect of various judgments of this Court, I favour the approach of Brown ASC, endorsed within the findings of Sheahan J, in the two oOh! Media cases, as the basis for applying of s 4.67(3) of the EP&A Act, and for the reasons provided above at [78]. That is that the preferred approach to my assessment of the proposed development in this appeal, in terms of the provisions of s 4.15C(1) of the EP&A Act, should be subject to the currently applying controls in KLEP. This is in the context of my conclusion at [85(2)], that any provisions of KLEP which derogate from the incorporated provisions in the Regulations have no force or effect.

90. Based on the above, I will next give specific consideration as to whether there are provisions of KLEP that would derogate from the existing use rights of the Applicant in relation to the proposed development. I will then move on to consider those provisions of KLEP against which the proposed development should be assessed in terms of the requirements of s 4.15C(1) of the EP&A Act.

91. I do not need to give consideration to whether any provisions of KDCP derogate the existing use rights of the Applicant, on the basis of my conclusions above at [86].

Do any provisions of KLEP derogate from the Applicant’s existing use rights?

92. The provisions of KLEP that are of relevance in the current appeal were identified above at [22] to [36].

93. As discussed at [47] it had been agreed that certain matters that had been in contention between the Parties concerning cl 5.9 of KLEP should, where necessary, be addressed through the Court’s consideration of the provisions of cl 6.4 of KLEP.

94. The Parties also agreed (see [45]) that the provisions of cll 6.2 and 6.3 of KLEP had been satisfactorily addressed by the Applicant, and were no longer pressed by the Respondent.

95. In relation to the remaining provisions of KLEP identified as being of relevance in this appeal, my considerations, reasons and conclusions in relation to whether they derogate from the existing use rights of the Applicant are as follows:

1. In relation to cl 2.3, which includes zone objectives and land use table, I have reviewed the provisions of the clause, including its objectives, and I have concluded that none of the provisions of this clause derogate the Applicant’s existing use rights, based on the following considerations.

1. The Parties made submissions during the hearing with respect to the extent to which the objectives of the E2 zone (see above at [25]) derogate from the Applicant’s existing use rights.

2. Ms Pearman, for the Applicant, submitted that the second of those objectives derogated from the Applicant’s existing use rights as it might preclude approval of the proposed development.

3. In reply, Mr Nash for the Respondent said that none of the objectives of the zone derogated those rights because they did not preclude the making, and assessment, of a development application in this case. He added that the requirements of cl 2.3 were such that, while the consent authority must ‘have regard to the objectives’, this did not serve to provide a prohibition to the Applicant’s proposed development.

4. During the hearing the following exchange was recorded in the transcript (Tcpt 11 May 2018 p 29 (38 to 44)):

COMMISSIONER: Just to be clear about it, you also say, do you not, that there's not a requirement as well for the proposal to be consistent with the objectives … just that the objectives need to be given due regard in relation to the proposed development. So whilst he [Mr Mahedy – the Applicant’s expert planner] says they're not consistent with the objectives, consistency in your argument isn't required.

NASH: It's firstly not required - absolutely correct, with respect – and secondly in our submission it's quite a damning admission on his part because even if the test was one of consistency, he says it's not consistent which is quite, we would say, a strong indicator as to the site's suitability of the chosen location.

5. Having considered the submissions of the Parties, I favour the submission of the Respondent on this matter for two reasons:

1. I concur with Mr Nash’s submission, on behalf of the Respondent, that while the Court is required to have regard to the objectives of the zone, this does not impose a standard that would, of its nature, serve to prohibit the proposed development;

2. having had regard to the objectives of cl 2.3, and mindful of the decision of Molesworth AJ in relation to the separate question (see above at [12]), I have concluded that that decision overcomes any possible issues of derogation in relation to this clause of KLEP. Further, and consistent with this, I do not rely on any provision of cl 2.3 as a basis for refusal of the Applicant’s development proposal.

• clearing of native vegetation.

• revegetation or planting of screening vegetation for land stabilisation.

• visual impact mitigation purposes.

• biodiversity offsets to maintain and improve biodiversity.

NOTE: Native vegetation cannot be removed unless approval is given under the Native Vegetation Act administered by the Southern Rivers Catchment Management Authority.

C56 The property landscape plan must:

• clearly identify strategically important existing and proposed vegetation aimed at screening development to ensure it will be enduring through time and able to be clearly identified by condition(s) of development consent.

• include measures to ensure such vegetation will be maintained and replaced over time if this becomes necessary due to damage, natural death or failure to survive due to human intervention or natural causes.

• maximise the use of local endemic species of plants.

• indicate how the visual impact of any access road and services infrastructure and fencing on the landscape will be mitigated by planting of vegetation.

• must not rely on landscaping and planting alone to be used as an alternative to improved siting options which use the natural landscape and landform to screen or reduce the visibility of proposed development to public view.

1. I have concluded that the requirements of these controls are met by the proposed development because:

1. in relation to control C54, the outcome required in the control would be satisfied through the response of the expert engineers in relation to the design of the proposed watercourse crossing (see above at [45]), together with the completion of a property landscape plan and riparian assessment report, which I have found could be provided through the Applicant’s fulfilment of a deferred commencement condition (see above at [139(3)]).

2. in relation to controls C55 and C56, the outcomes required in the controls would be satisfied through completion of a property landscape plan, which I have found could be provided through the Applicant’s fulfilment of a deferred commencement condition (see above at [139(3)]).

KDCP Section 11 – Planning for adequate response to bushfires

146. In relation to controls C60 to C65, which are:

C60 The erection of a dwelling on a lot containing bush fire prone land must:

• be located on a lot so that it is less susceptible to a direct bush fire attack threat.

• comply with bush fire protection measures and control standards in the NSW Rural Fire Services’ publication Planning for Bushfire Protection, (including any revised editions or supplementary publications released by the NSW RFS).

C61 A Bush Fire Assessment Report must be submitted with the statement of environmental effects.

C62 Dwellings and ancillary development (including tourist accommodation) must be located as far as possible on cleared land to:

minimise the bush fire risk, and avoid the need to clear native vegetation to reduce the risk of bush fire attack.

C63 Where feasible, developments should provide for a perimeter road or reserve around the dwelling(s) and associated ancillary development to assist inner protection area management and bush fire fighting.

C64 Provision must be made for access by bush fire fighting and other emergency services vehicles and where necessary, the ability for these vehicles and their emergency services officers and residents to be safely evacuated in the case of extreme bushfire threat.

C65 In some locations, this may require providing an additional alternative means of access to the development in locations where a property is subject to a severe bush fire attack threat. This may also require the applicant/landowner negotiating alternative access arrangements over an adjoining property.

1. I have concluded that the requirements of these controls are met by the proposed development because as discussed above at [138] in relation to C27, the Parties have agreed that, based on communications with the NSW Rural Fire Service, including recommended conditions of consent for the proposed development in relation to access and APZs, the proposed development meets the requirements of the RFS with respect to the proposed development.

KDCP Section 12 - Flooding

147. In relation to controls C67 to C71, which are:

C67 Where a development proposal requires access over a waterway; consideration must be given in the statement of environmental effects to:

• any alternative development sites investigated that would avoid creek crossings.

• explain why any such alternative options investigated were not considered preferable to the proposed site design requiring access across a waterway.

C68 Where a waterway crossing is unavoidable, the level of any waterway crossing must provide a safe carriageway in low flood conditions (ie a 1 in 20 year recurrent flood level) and the engineering design of waterway crossings must accompany the development application.

C69 Waterway crossings must be designed to have a negligible impact on the stream flow, riparian vegetation, water quality and fish movements.

C70 Council may require:

• the rehabilitation, maintenance and improvement of riparian land in the vicinity of a waterway crossing.

• works to restore the natural form and functions of a waterway within the riparian corridor in the vicinity of a waterway crossing.

C71 Any riparian land rehabilitation, improvement or maintenance must be addressed in the property landscape plan and the Biodiversity Offset Principles outlined in this chapter will apply where biodiversity offsets are involved.

1. I am satisfied that the requirements of these controls are met by the proposed development because:

1. based on my inspection of the Subject Site, I accept the Applicant’s submission that there is no alternative access route that would avoid a creek crossing;

2. the proposed access route is the only feasible alternative for provision of access to the proposed development; and

3. the engineering experts in their joint report have agreed that the Applicant’s design of the proposed watercourse crossing satisfies the requirements of C68, C69, C70, and C71.

KDCP Section 13 – Land stability and earthworks

148. In relation to controls C74 and 75, which are:

C74 Council may require that a geotechnical report suitably qualified geotechnical consultant and submitted with development application for dwelling or ancillary development for habitable purposes. The geotechnical report must include:

• Investigation of the stability and suitability of land identified within the identified building envelope for a dwelling and any ancillary habitable buildings.

• Engineering and design recommendations required to maintain the stability of the development site and the structural safety of any habitable building proposed to be erected within the building envelope.

C75 The design of earthworks associated with dwellings and ancillary development must:

• minimise the extent of cut and fill to reduce the potential for land slip and visual impact on the landscape.

• restrict excavation for a building to not more than 1 metre below ground level (existing).

• restrict the height of any external retaining wall outside the walls of a building to not more than 1 metre above ground level (existing).

• restrict the design of any batter to not more than a gradient of 1:4 (absolute) and preferably 1:6.

1. Council has not sought to require a geotechnical report for the purposes of this control and the Respondent’s draft conditions of consent also do not require that the Applicant provide such a report.

2. The engineering experts in their joint report have agreed that the Applicant’s design of the proposed watercourse crossing satisfies the requirements of several conditions, including C75 in relation to the watercourse crossing;

3. The Respondent’s ecology expert, Dr Clements, stated within her evidence in the joint report of the ecology experts that:

There is a high erosion risk, especially in areas of reduced soil cover from:

• Expected high rainfall events based on nearby rainfall records;

• Steepness of land required to be modified for the APZ; and

• Limitation of soil landscape associated with steep slopes, (Limitation – mass movement hazard, rock fall hazard, extreme water erosion hazard, shallow soil, rock-outcrop, stoniness, low available water-holding capacity (topsoil), low wet bearing strength (subsoil) and sodicity.

This erosion risk contributes to the potential for impacts, especially as the proposal includes the long-term reduction of vegetation cover on steep land. There were no observed examples on the site of long term vegetation reduction on steep land, except possibly south of Plot 1 where erosion is occurring.

4. Notwithstanding these comments, which, in relation to erosion and soil assessment were, in my opinion, outside Dr Clement’s identified field of expertise, Council did not seek to challenge the design proposals for the proposed dwelling and ancillary works in relation to the requirements of control C75. Nor did Council provide expert engineering evidence that supported the statements of Dr Clements (see above at [3]).

5. Having considered the submissions of the Parties and the evidence before me, including the Applicant’s design drawings for the proposed access road, and the joint report of the engineering experts, I am satisfied that requirements of this control are met by the Applicant’s design for the proposed dwelling and ancillary works.

KDCP Section 14 – Riparian land

149. In relation to control C79, which is:

C79 Development on or near to land identified as being riparian and in the Kiama LEP 2011 must ensure that it does any negative impact water quality, bank and bed stability, ecological processes and any habitats.

150. I am satisfied that the requirements of this control are met by the proposed development because:

1. as discussed above at [139], should the Applicant’s appeal be upheld, the Applicant would be required, under deferred commencement conditions, to complete a series of assessments and management plans, including a riparian assessment report, and a property landscape plan, that would ensure that the proposed development would not give rise to negative impacts on water quality, bank and bed stability, ecological processes and any habitats; and

2. the engineering experts have agreed that the design of the proposed watercourse crossing satisfies the requirements cl 6.2 of KLEP concerning earthworks in the proximity to, inter alia, waterways on the Subject Site.

Finalisation of the assessment of the proposed development against the requirements of s 4.15C of the EP&A Act

151. The EP&A Act requires that, in addition to the above assessment of the Applicant’s proposed development in terms of the provisions of s 4.15(1)(a) of the Act, a consent authority must take into consideration the following matters in determining a development application:

1. The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts on the locality (s 4.15(b) of the EP&A Act);

2. The suitability of the site for the development (s 4.15(c) of the EP&A Act);

3. Any submissions made in accordance with the EP&A Act or the Regulation (s 4.15(d) of the EP&A Act);

4. The public interest (s.4.15(e) of the EP&A Act).

152. These matters are considered in sequence, below.

The likely environmental impacts of the development

153. The likely environmental impacts of the proposed development have been assessed above through my assessment of the proposed development’s compliance with the provisions of KLEP and KDCP (see above [98] to [150]).

154. In summary, the relevant conclusions of that assessment in relation to KLEP are:

1. in relation to cl 6.4 of KLEP concerning terrestrial biodiversity,

1. based on the evidence of the ecology experts, the proposed development is likely to have adverse environmental impacts on native vegetation, including on an EEC;

2. the scale and nature of those adverse impacts is uncertain as a consequence of discrepancies in mapping between that used for the assessment of ecology and bushfire impacts, and mapping of the proposed development by the Applicant’s architect;

3. I am unable to be satisfied that the proposed development is designed, sited and will be managed to avoid, minimise or mitigate any significant adverse environmental impact;

4. I am unable to be satisfied that the proposed development is compliant with the provisions of cl 6.4 of KLEP.

2. the proposed development was assessed to be in compliance with all other provisions of KLEP, and is unlikely to give rise to adverse environmental impacts matters addressed in those provisions.

155. The relevant conclusions of the assessment in relation to the provisions of KDCP are:

1. The proposed development is compliant with the requirements of the following controls of KDCP:

1. Control C11, which concerns design and siting matters, for reasons provided at [134(1)] and [134(2)];

2. Controls C12, C13, and C14, which concern the design and siting of ancillary developments and secondary dwellings, for reasons provided at [135(1)];

3. Controls C21 and C22, which concern access and service infrastructure, for reasons provided at 136(1);

4. Controls C26 and C7, which also concern access and service infrastructure, for reasons provided at [138(1)];

5. Controls C30 and C33, which concern access and service infrastructure, and specifically the provision of power supply and the location of transmission lines and communications infrastructure, for reasons provided at [140(1)];

6. Controls C54, C55 and C56, which concern environmental considerations, specifically riparian land and the requirements for a property landscape plan, for reasons provided at [145(1)];

7. Controls C60 to C65, which concern planning for bushfires, for reasons provide at [146(1)];

8. Controls C61 to C71, which concern flooding, for reasons provided at [147(1)];

9. Controls C74 and C75, which concern land stability and earthworks, for reasons provided between [148(1)] and 148(5);

10. Control C79, which concerns riparian land, for reasons provided at [150(1)] and [150(2)].

2. notwithstanding that the proposed development does not meet the following controls in KDCP, it is able to demonstrate compliance through reasonable alternatives that achieve the objects of those controls, as follows:

1. Controls C29 and C29, which concern access and service infrastructure, and specifically, the management of soil, water and vegetation impacts, for reasons provided at [139(1)] to [139(5)];

2. Controls C44 and C45, which concern water supply, for reasons provided at [141(1)] and [141(2)];

3. it does not meet the requirements of following controls:

1. Control C7, which concerns the design and siting of the proposed development, specifically in relation to avoiding and minimising impacts on the natural environment, for reasons provided at [132(2)] to [132(4)];

2. Controls C10, which concerns the design and siting of the proposed development, specifically in relation site analysis, for reasons provided at [133(1)] and [133(2)];

3. Control C25, which concerns access and services infrastructure, specifically in relation to avoiding, minimising and mitigating adverse impacts land containing biodiversity/native vegetation and endangered ecological communities, for reasons provided at [137(1)];

4. Control C46, which concerns environmental considerations, specifically in relation to the location of dwellings and ancillary development in relation to vegetation, for reasons provided at [142(1) to [142(3)]];

5. Control C48, which concerns environmental considerations, specifically clearing of native vegetation, for reasons provided at [144(1)] to [144(1)(d)(ix)];

156. During the hearing, the Parties made no submissions in relation to adverse impacts that might arise from the proposed development in relation to the built environment, or in relation to potential social and economic impacts in the locality. I have concluded that the proposed development is unlikely to have any adverse impacts in relation to any of these factors and they should not be reasons for refusal of the Applicant’s development application.

The suitability of the site for the development

157. Based on my findings above at [154(1)] and [155(3)] in relation to likely environmental impacts, and my specific finding at [144(1)] in relation to Control C48 concerning alternatives, I am unable to confirm the suitability of the site for the proposed development.

Submissions made in accordance with the EP&A Act

158. There were no submissions received in relation to the proposed development and, as noted above at [14], no objectors sought to make submissions to the Court in relation to this appeal.

The public interest

159. Based on the above, for reasons provided above at [154(1)] and [155(3) ] in relation to the environmental impacts of the Applicant’s proposed development, and in relation to the suitability of the site for the development (see above at [157]), I have concluded that approval of the Applicant’s proposed development is not in the public interest.

Conclusion

160. Based on the above considerations, I have concluded that::

1. the controls that are relevant to my determination of this case are those controls in KLEP and KDCP identified at [36 ] and [38];

2. as discussed at [96(1)], none of the provisions of the clauses of KLEP that are relevant to the proposed development in this appeal derogate from the Applicant’s existing use rights;

3. as discussed at [91] and [94], the provisions of KDCP cannot derogate from the Applicant’s existing use rights, because a DCP is not an environmental planning instrument for the purposes of the s 4.67(3) of the EP&A Act;

4. as discussed at [96(2)], the provisions of clauses 6.4 and 6.5 of KLEP provide a basis for assessment of the application under the provisions of s 4.15C(1)(a) of the EP&A Act, consistent with approach to assessment identified by Brown ASC at [76]

161. I have also concluded that:

1. I am not able to be satisfied, as I am required to be under the provisions of cl 6.4(4) that the development is designed, sited, and managed to avoid, minimise or mitigate any significant adverse impacts on terrestrial biodiversity, for reasons provided at [109], and as discussed at [111];

2. I am satisfied that the provisions of cl 6.5(4) have been met by the Applicant, and that the development is designed, sited and will be managed to avoid any significant adverse environmental impact on the watercourse, consistent with the provisions of cl 6.5(4)(a) of KLEP. as discussed at [127], and for reasons provided at [120] to [126];

3. I am satisfied that the proposed development is compliant with the following controls of KDCP:

1. Control C11, which concerns design and siting matters, for reasons provided at [134(1)] and [134(2)];

2. Controls C12, C13, and C14, which concern the design and siting of ancillary developments and secondary dwellings, for reasons provided at [135(1)];

3. Controls C21 and C22, which concern access and service infrastructure, for reasons provided at 136(1);

4. Controls C26 and C7, which also concern access and service infrastructure, for reasons provided at [138(1)];

5. Controls C30 and C33, which concern access and service infrastructure, and specifically the provision of power supply and the location of transmission lines and communications infrastructure, for reasons provided at [140(1)];

6. Controls C54, C55 and C56, which concern environmental considerations, specifically riparian land and the requirements for a property landscape plan, for reasons provided at [145(1)];

7. Controls C60 to C65, which concern planning for bushfires, for reasons provide at [146(1)];

8. Controls C61 to C71, which concern flooding, for reasons provided at [147(1)];

9. Controls C74 and C75, which concern land stability and earthworks, for reasons provided between [148(1)] and 148(5);

10. Control C79, which concerns riparian land, for reasons provided at [150(1)] and [150(2)].

4. I am satisfied that, applying the provisions of s 4.15C(3A) of the EP&A Act, the proposed development would achieve compliance with the following controls of KDCP through the adoption of reasonable alternatives that achieve the objects of those controls:

1. Controls C29 and C29, which concern access and service infrastructure, and specifically, the management of soil, water and vegetation impacts, for reasons provided at [139(1)] to [139(5)];

2. Controls C44 and C45, which concern water supply, for reasons provided at [141(1)] and 141(2);

5. I am satisfied that Control C47, which concerns environmental considerations in the circumstance of a subdivision, is not applicable to the proposed development for reasons provided at [143(1)];

6. I am not satisfied that the requirements of the following controls have been complied with by the proposed development, and notwithstanding the provisions of s 4.15C(3A) of the EP&A Act, I find that reasonable alternative solutions are not available that would achieve the objects of the control:

1. Control C7, which concerns the design and siting of the proposed development, specifically in relation to avoiding and minimising impacts on the natural environment, for reasons provided at [132(2)] to [132(4)];

2. Controls C10, which concerns the design and siting of the proposed development, specifically in relation site analysis, for reasons provided at [133(1)] and [133(2)];

3. Control C25, which concerns access and services infrastructure, specifically in relation to avoiding, minimising and mitigating adverse impacts land containing biodiversity/native vegetation and endangered ecological communities, for reasons provided at [137(1)];

4. Control C46, which concerns environmental considerations, specifically in relation to the location of dwellings and ancillary development in relation to vegetation, for reasons provided at [142(1)] to [142(3)];

5. Control C48, which concerns environmental considerations, specifically clearing of native vegetation, including requirements for consideration of alternatives, for reasons provided at [144(1)] to [144(1)(d)(ix)];

162. Based on the above conclusions at [161(1)] and [161(6)], along with my considerations at [157] in relation to site suitability, and at [159] in relation to public interest, I have determined that the Applicant’s proposed development cannot be granted consent, and the development application DA10.2016.185 should be refused.

Orders

163. The Court orders that:

1. The Applicant is granted leave to rely on amended plans.

2. The appeal is dismissed.

3. Development application DA10.2016.185 for construction of a new dwelling, including a residence and garage, shed and guest sleeping pavilion, along with ancillary works, is determined by refusal.

4. The exhibits are returned with the exception of Exhibit 1.

………………………….

Michael Chilcott

Commissioner of the Court

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Decision last updated: 13 August 2018