Synergy Environmental Planning v Cessnock City Council

[2004] NSWLEC 502

Land and Environment Court

of New South Wales

CITATION:

Synergy Environmental Planning v Cessnock City Council [2004] NSWLEC 502

PARTIES:

APPLICANT
Synergy Environmental Planning

RESPONDENT
Cessnock City Council

FILE NUMBER(S):

11353 of 2003

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- against a deemed refusal of a new house on rural property
bushfire danger
scenic protection

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Cessnock Local Environmental Plan 1989
Hunter Regional Environmental Plan
Rural Fire Act 1997

CASES CITED:

DATES OF HEARING:

23/06/04-25/06/04

EX TEMPORE
JUDGMENT DATE :

08/18/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr Kildea, barrister
SOLICITORS
Thompson Norrie

RESPONDENT
Mr Howard, barrister
SOLICITORS
Cleaves Mallik Gibbs

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

13 August 2004

11353 of 2003 Synergy Environmental Planning v Cessnock City Council

JUDGMENT

1 This was a class 1 appeal 11353/03 between Synergy Environmental Planning and Cessnock City Council in regard to the deemed refusal of a proposed new house on a hilltop on a rural property of forty hectares known as lot 9 DP868722 Camp Road, Allendale.

2 The property consisted near the road of open grassland with a few trees sloping up to the hill. It was called Mount Molly Morgan after a colourful colonial of the region. Apparently her home had been nearby when she lived in the area.

3 Camp Road ran about north south at this location and the subject property had a frontage of about 480 m. The hill itself became quite steep as it rose towards the crest. There were a few shrubs and scattered trees higher up but the crest of the hill was quite visible from the road.

4 There was a ridge down from the crest to the south and the private access road went from the entry gate and climbed the side of the ridge in a southerly direction, and when on top of the ridge, turned almost 180o, and travelled up the southern ridge to the crest. The Court was told the crest had originally been a rounded shape on top but had been excavated and flattened to create an area about 50 m diameter on which the proposed house was to be built.

5 The house was almost circular with a diameter of about 40 m. It was designed with 16 sides, each facet having an associated roof panel that sloped up in pyramidal form to a cupola that had clere storey windows between the main roof and the cupola roof. The cupola was above a large central foyer of the house.

6 The foyer was entered either from the four car garage or from a north facing large verandah that occupied one segment of the house. From the foyer one could enter the living room of the house that faced east and had a projecting large bay window on that side. From the garage one could also enter a large storage room that occupied another segment of the house.

7 In total the floor space was about 1200 m2 on a single level. There was no upstairs. The spring line of the main roof at the outside wall was at 3 m high above ground, and the peak of the cupola was at 7.7 m.

8 The construction was sandstone appearance concrete block, aluminium windows and sheet metal roof. The verandah posts were steel as was the roof structure.

9 From the crest of the hill there was another ridge sloping down to the north west and the site boundary followed this ridge. The flattened area on the crest of the hill was actually on the property boundary on the northern side so that the house would be about 6 m from the boundary at the closest point. This happened to be where a stand of trees was located on the adjoining property, lot 10, and they were the start of woodland that grew on the whole western and most of the northern side of Mount Molly Morgan.

10 The western side sloped away more gently than the east and the north sides. The west was still fairly steep but walkable, whereas the east and north sides were a scramble. The woodland came up close to the proposed house on its western and north western sides and the trees also grew down the other ridge to the south along the main access road.

11 At the bottom of the hill on the west side the trees gave way to open grassland again with trees generally restricted to several swales or gullies that went down to a creek on the next property to the west. The owners of that next property were a Mr and Mrs Smith.

12 The proposal included a fire trail escape road down the western slope of the hill and once it got to the bottom it would follow the grassland around to the south until it met the main access road on the southern ridge at the point where it made the one hundred and eighty degree turn. This fire trail was an amendment to the development application as recent as two days before the hearing, as was an amended landscape plan and the provision for asset protection zones, or APZs as they were called, to reduce bushfire danger, and the removal of trees was another amendment.

13 Prior to these changes the development application had stated no trees were to be removed, and at recent joint expert conferences the council representatives alleged they had not been told of the extent of changes.

14 Whilst the respondent objected to the amendments and associated new reports, there was no application to adjourn the proceedings. All the experts were present as were the objectors, both on site and at the hearing, when the plans and changes were explained to the Court.

15 The proposal was also described during the extensive view of the site that involved almost the whole of the first day of the hearing and necessitated walking over most of the forty hectares as well as observing the site from various distant points in the Hunter Valley, including part of the route of the new F3 freeway extensions, and the township of Greta, and the New England Highway at Harpers Hill.

16 On the second day of the hearing, the only objection to the changes pressed by the respondent was the need to re-notify so any objectors could comment on the changes. The reason was put as the new fire escape trail as it would be visible from the Smith property and homestead. Since Mr and Mrs Smith had been present on site and at the hearing and were apparently the only property affected, re-notification was unnecessary. The hearing proceeded.

17 The issues in the appeal were:

1. In view of the design, location, height, bulk and scale of the building, what impact will the building have on the visual amenity of the area including the landscape and setting, quality of the area and when viewed from adjoining land and from public places, including the proposed extension to the F3 freeway. In view of such impact should the application be approved.
2. How will the required bushfire mitigation measures and the building of access roads impact on the visual amenity, landscape and scenic quality of the area, and in the circumstances of such impact should the application be approved.
3. Is the proposal inconsistent with the provisions of the Cessnock Local Environmental Plan 1989, especially clauses 9(i) rural A zone objectives, (e)(iii)(v), (a)(ii)(v)(i), (c)(i)(ii), clause 2(1)(a) of the Hunter Regional Environmental Plan and, if so, should the development be approved.
4. Can the Court be satisfied that the development proposal contains adequate safeguards to protect the development from bushfire threats.
5. Is the proposal inconsistent with the Rural Fire Service Planning New South Wales document, Planning for Bushfire Protection 2001, and, if so, should it be approved.
6. Is the proposal inconsistent with clauses 10(1)(vi) and 32(1)(d)(e) and (f) of the Cessnock Local Environmental Plan 1989 and, if not, should it be approved or should it be refused pursuant to clause 32(2) of the Cessnock Local Environmental Plan.
7(i) To the extent that the proposed development proposes the use of the unauthorised work being roads, works and other earthwork done in association with the construction of a dwelling, namely a building platform without obtaining development consent, should the Court grant development consent bearing in mind the public interest would not be served by permitting an applicant to take advantage of such unauthorised work;
(ii) The possibility that the Land and Environment Court pursuant to the Environmental Planning and Assessment Act 1979 can make remediation orders requiring the removal of the unauthorised work.
(iii) The fact that the adverse impact of the unauthorised road work and earthworks have never been the subject of an environmental assessment pursuant to the EP and A Act 1979;
(iv) The inability of the consent authority to grant retrospective consent to works already completed or to impose conditions in respect of such works.
8. What will be the adverse environmental impact of the result of the proposed development and unauthorised road works and earthworks in the circumstances should the development be approved.
9. What impact will the development including clearing on the subject land and proposed on adjoining land and roads proposed, and unauthorised road works and unauthorised earthworks already done have on threatened or endangered species, population or any endangered ecological community, and in the circumstances, should the application be approved.
10. What soil erosion control measures and other measures are necessary to control the discharge of stormwater at the site of the development and the sections of recently constructed unauthorised road works. What will be the effect of such measures on water pollution and changes to the natural eco-system of Mount Molly Morgan in the circumstances should the development be approved.
11. Does the proposal comply with the provisions of the Environmental Planning and Assessment Act 1979, the Cessnock Local Environmental Plan 1989 and the Hunter Regional Environmental Plan . If not, should the development be approved particularly bearing in mind the following provisions:
(i) Cessnock LEP clause 10(A)(ii)(vi) and (vii)(ix)(xii) (xiii), and clause 10(C)(i)(ii) and (v);
(ii) The Environmental Planning and Assessment Act section 5(A)(i)(ii) and (vii);
(iii) The Hunter Regional Environmental Plan especially the aims and objectives specified in clause 2(1)(a).
12. Is it appropriate to grant consent to this development when the consent is based on an expectation of another consent being obtained, being the boundary adjustment over adjoining land to assure the asset protection zone is fully incorporated within the boundaries of the applicant’s land, considering the fact
(a) the applicant does not incorporate or refer to adjoining land;
(b) the consent of the owner of the adjoining land has not been obtained to this application;
(c) full and adequate assessment has not been made of the environmental impact including the visual impact of any proposed clearing of the adjoining land to accommodate the bushfire hazard protection zone.

13. What conditions should be imposed on the development if it is granted to protect the environment and minimise and mitigate any adverse impact of the development.

18 The respondent’s evidence was heard from:

• Mr W D Smith, objector, of “Inwood” at 200 Lindsay Road, North Rothbury,
• Mrs V Randall, objector, at 12 Price Street, Greta.
• A letter of objection was tendered on behalf of the Greta Estates Pty Limited, owner of a 417 hectare parcel fronting Camp Road opposite the site, also from:

• A Dr Duncan Thompson and

• A petition from 26 residents of Greta, and

• The Roads and Traffic Authority Hunter Divisional office,
• Mr T Smith, geographer, agriculturalist specialising in natural resource management, bushfire threat assessment and farm management,
• Mr D Hislop, district support officer, region east, New South Wales Rural Fire Service,
• Mr P Pollard, architect,
• Mr M Leek, civil engineer, and
• Mr F Leathley, council town planner.

19 The applicant’s evidence was heard from:

• Mr G Swain, specialist consultant in bushfire threat assessment and past deputy regional co-ordinator, Hunter Region, Department of Bushfire Services,
• Mr C Anderson, ecologist and Bachelor of Applied Science in environmental assessment and management,
• Mr A F Keller, civil engineer, and
• Mr G Warnes, town planner.

20 There were expert reports for the applicant from:

• Ms M Dewsnap, landscape architect,
• Mr I H Marshall, surveyor,
• Mr L Roberts, archaeologist.
• A letter from the two owners of lot 10 DP868722 referred to in issue 12, being the next property to the north, said that they did not object to a s. 88B instrument being put on the title of their land to enable the owners of lot 9 to afford bushfire protection to the proposal.

21 None of these latter five persons were required for cross-examination.

22 Mr Smith said that he had been concerned about the privacy of his homestead. He and his wife had carefully planned their property to retain privacy. Clearing of trees along the alignment of the new fire trail on the western slope would create overlooking. On the day of the site inspection he had been told the fire trail could be realigned so it did not lead towards his homestead. If that was done and fewer trees removed, he would withdraw his objection.

23 He said the position of the proposed house site on top of the hill gave such a steep angle of view, he could not grow screen trees on his property below, that would maintain bushfire safety and retain privacy of his homestead, if the trees on lot 9 were cleared.

24 He agreed that alternate sites for a house on lot 9 lower down on the western slope of lot 9 would be at the same contour level or even lower than his house. For those alternate sites screen trees could be located on his property to protect privacy and retain bushfire safety. He thought the lower sites on the west were closer to his homestead and aural privacy may become a concern as it was so quiet in the valley. He thought with the changes to the hilltop site, he might prefer it.

25 Mrs Randall was concerned about the cultural impacts of a house being on top of Mount Molly Morgan and its impact on the scenic quality of the area and the local history of the mountain. The objectors who did not come to the hearing had similar fears. She said Molly Morgan had been a colourful colonial of the 1820s, finally living nearby at Anvil Creek where she died in 1835.

26 When the Greta army camp had existed on what was now the Greta Estates Pty Limited land, plus the subject site, the hill was used for military exercises.

27 After World War 2 the army base became a migrant camp for new Australians. Mount Molly Morgan was the first hill the new arrivals climbed to observe the countryside of their new homeland.

28 It had also been used for a district recognition of the coronation of Queen Elizabeth 2 using a huge bonfire seen as far away as Maitland.

29 Mrs Randall, as other objectors had mentioned, had been concerned about the flattening of the top of the hill. It was seen from many places in the district including Greta township. The proposed house on top of it would have high visibility in the landscape and would detract from it and the folklore of its association with Molly Morgan.

30 In cross-examination she agreed she was the author of a book on the past of Greta but she had not mentioned the mountain in it. She said it was named on all the maps of the area. She agreed she had not objected to the Greta Estates Pty Limited proposal to build a very large holiday resort on the old migrant camp. She was told that on the Internet Mount Molly Morgan only had three hits. She replied that Greta township only had one hit.

31 Messrs Hislop, Swain and Smith gave concurrent oral evidence on questions in Exhibit 12. They had conferred on amendments to the proposal. Mr Swain had marked on a tree survey, and on site, those trees to be removed for bushfire protection and those to be kept. Some additional trees would be removed due to the new fire trail but he did not think there would be many having walked the probable route on site.

32 The three had conferred on the steepness of the slopes at Mount Molly Morgan at the top of the hill around the house. This was important for qualification of bushfire asset protection zones, called by the acronym APZ, and whether they could actually work, if a real bushfire occurred.

33 There were a considerable number of trees to be removed including on lot 10. They had conferred on the slopes around the top of the hill and agreed on Exhibit 14. On the north and east south-east sides the slopes were 30.5 degrees and 25 degrees with a change to about 18 degrees as the slope approached the flattened top of the hill. On the west and south-west, the slopes were between seventeen and half and 22 degrees with the slope changing to about 11 degrees as it approached the flattened top of the hill.

34 Mr Hislop classified the bush on the north-west, that included the trees on lot 10, as dry sclerophyll forest, not woodland under the table A 2.1 on p 45 and 46 of the New South Wales Planning for Bushfire Protection Guide in Exhibit 8. Mr Swain said it was woodland because it had not much understorey and had less than 30% canopy cover, the latter being a percentage of ground beneath trees that would be covered if the perimeters of the tree canopies were projected onto the ground. Mr Smith and Mr Hislop said it was more than 30%.

35 Mr Swain agreed a conservative approach to safety was best when dealing with bushfire.

36 Mr Swain said on the steep north and east faces of the hill it was grassland. The respondent’s experts classified it as woodland.

37 On the west and south-west Mr Swain said the bush was woodland bordering on forest. His plan actually showed part of the woodland on the south west as grassland. He said at the top of the hill it was grassland and the drawings were indicative, and final decisions on fire protection methods would be made on site from time to time as regular maintenance would be necessary.

38 He said the south-west woodland would be 80 m from the house. He said on the north and north east the grass land extended about 30 m down hill, then there was 30 m of shrubs and a few trees and then grassland and a few trees down to the road.

39 Mr Hislop said the guide stated where there was a mix of vegetation, the type with the higher category should be used for protection planning. The mix was type 6, 10 and 14 on the table on p 45 and type 6 was group 2 hazard.

40 Mr Swain again commented on the table and said that the highest category that he saw from the vegetation in that area was type 14 that was group 3 lower hazard. Thus the experts disagreed again.

41 These disagreements had important ramifications for the ability to protect the house from bushfire and the hazard reduction measures necessary in the asset protection zones or APZs.

42 The guide certainly recommended against locations on ridge tops, steep slopes and within bushland, and that sites should not be isolated. Asset protection zones were supposed to wholly on a property, not on adjoining ownership.

43 Mr Hislop also said the site was isolated due to the location of the hill. It was a difficult site for fire trucks and fire crew to get to. Mr Swain said that was too fine a point when it was only 1.5 km from a town like Greta that had fire trucks. He said, “isolated”, meant far away in travelling time.

44 Mr Hislop said the slopes around the house were so steep some were well over the maximum eighteen degrees slope at which APZs could be effective. He said the steep slopes meant a fire would gather momentum coming up the hill and the flame would actually reach the house. Beyond the allowed slopes APZs did not work and that meant neither the house, nor the fire crew who might be trying to save it, could not protected.

45 He added that further downhill than the APZs in some directions the slopes were even steeper than shown in Exhibit 14. Crown fires would occur in the bush. Crown fires were extremely dangerous and the induced winds of the fire would carry flames over the crest of the hill directly onto the house. He noted the 22,000 litre water tank to fight the fires was located in the bush on the west of the house where it could become inaccessible in the flame zone during a fire.

46 Mr Swain maintained that closer to the house and the top of the hill, which was where the APZs were located, the width required for APZs was available for seventy metres at 18o slope, or 55 m at less than 18O degrees slope. Only on the south-west was the slope more than 18O in that zone. He did not believe the crown fire would occur due to there being little understorey vegetation. He said flames would not exceed three metres high. The clearing and the maintenance of the APZs would ensure the absence of understorey.

47 Mr Smith noted that such clearing would take out all saplings so that the regeneration processes of the bush would be defeated.

48 Mr Hislop said the Bushfire Protection guide was silent on such maintenance plans for APZs. It only sought separation from hazard. In any case, except at the top of the hill, the APZs were too steep for vegetation slashing vehicles. Vegetation clearing would have to be done by hand, and to achieve the necessary fuel reduction it had to be slashed down to 50 mm high.

49 Mr Swain believed slashers or ride-on mowers could be used on most of the APZs.

50 The Court was shown on site slashed areas, and not far down the hill slip marks were seen from tyres of the slasher. They could only be used near the top of the hill. Areas further downhill on steeper land would still be in the APZ. Hand clearing would be needed there.

51 Mr Hislop quoted the guide saying all APZs must be on the subject site. Mr Swain agreed it said that, but believed the Rural Fire Service would accept easements on adjoining ownerships for APZs. He produced a draft document for land in the Great Lakes Shire. An aerial photo of the land was produced later in Exhibit 16 showing it was an infill lot in a small lot residential subdivision with bushland on a waterfront reserve. Concessions were allowed in the guide for infill lots of that type. This rural property of forty hectares could not qualify.

52 Mr Hislop believed to avoid a wildfire in the bush near the house more tree clearing would need to be done. The standard being proposed was to have one tree per hundred square metres but that was for slopes below eighteen degrees.

53 Mr Swain believed he had marked the trees to be cleared to get canopy separation of fifteen to twenty metres to prevent crown fires. Mr Smith noted that the main access road and the escape road needed APZs also to ensure safety of fire trucks and fire crew.

54 Mr Swain said they only needed a clearance frame of six metres wide by six metres high, and that only took branches off most trees. Mr Hislop replied that six metre by six metre clearance was only for fire trails less than hundred metres long. This proposal was much longer than that, so about a twenty metre wide tree clearance would be needed.

55 Mr Hislop also referred to the access drive around the house that fire trucks would have to use. It was 6 m in most parts and 5 m at one point where the living room bay window projected out. It was to be lawn. He said the minimum width was one metre clearance, four metre wide drive area and one metre clearance on the other side with a total of six metres. Also, a driver would have to be continuously turning around the circular drive of the house to stay on it. In bushfires he had frequently experienced thick smoke that made keeping on a track very difficult. On top of this hill a heavy fire truck only needed one tyre off the track on the steep slope below and the truck would roll and the fire crew with it. The truck would not stop rolling until the bottom of the hill. It was quite dangerous, in his opinion. Mr Swain said the driveway round the house was safe. He was confident flames would not reach the house through the APZs, but he agreed smoke would reach the house.

56 Mr Smith noted the amended landscape plan substituted native species in place of exotics in the original. But the vegetation, even of a type that did not readily support bushfire would, given the concerns about crown fire and wildfire up the steep slopes of the mountain, simply add to the fire fuel right beside the house. He added, some of the new native species proposed were unsuited to the dry top of the hill location that had wind exposure.

57 Mr Anderson agreed some of the vegetation should be altered again and drip irrigation used. The mulch proposed should not be used because it could add to the bushfire fuel.

58 Mr Hislop was interested to know the equipment needed to maintain the APZs, and whether future owners might not have the resources to own them, and do the work on a regular basis.

59 Mr Swain said a s. 88B instrument on the title of the land would make any future owner aware of the responsibilities and require an annual report to council and the Rural Fire Service that the fire fuel reduction management plan was maintained. Mr Swain agreed the fire fuel management plan was crucial to the safety of the house, its occupants and any fire crew that might be called to defend them.

60 Mr Smith had counted 250 trees marked for removal plus whatever might be needed for the new fire trail. He estimated with the APZ clearances needed along the trail that would be about 300 m through the bush before it got to the grassland. It would probably be another 210 trees to be removed.

61 Mr Anderson had walked the bush on the likely route, which was preferentially located to avoid trees. He did not think it would be anywhere near two hundred and ten.

62 Messrs Smith and Anderson still did not agree on the categorisation of the vegetation types in the APZs under Exhibit 8, the guide and table A 2.1 on pp 45 and 46. Mr Smith leaned to the group 2 categories and Mr Anderson the group 3 or lower hazard categories.

63 Mr Smith said the fuel reduction plan would favour regrowth of weeds such as blady grass and lantana which was already on the site in the understorey and they were more flammable than existing native vegetation. The bio-diversity of the forest and woodland and grassland would change over time in the APZs. Then, every 6 or 7 years, a slow burn in the APZs would be necessary to remove leaf litter. With that and regular slashing to 50 mm high, native ground cover could not regrow and on steep slopes, given heavy rain, erosion scours could be set up where there were none now. The soil was of a highly erodable type.

64 The uneven ground showed that using machinery to slash to 50 mm high meant that in places the blades of the cutter were into the soil, opening up potential erosion scours already.

65 Mr Anderson thought the habitat would grow back more naturally. The only real point of agreement between them was that the bushland on the western slope of the mountain was not the endangered ecological community of Hunter Lowland Red Gum Forest. The respondent had originally thought it may be so. However, the only places it was seen on the site was in the gullies and swales at the bottom of the mountain where it was away from the areas affected by the proposal.

66 Mr Leek said the existing private access road to the crest of the hill needed widening in places to get the 6 m width needed for fire trucks. The width included 1 m each side so the fire crew could get out of the truck at any point along the road. The widening was needed as the road climbed the side of the southern ridge. It was in a cutting with a high embankment on the uphill side. The cutting was unstable and would need retaining walls also.

67 The other place to widen was at the 180o bend on the ridge. It was not wide enough for a fire truck to turn with safety. Measurements were taken on site and it was found that the existing trail was just wide enough for a fire truck’s turning circle. However, it would mean that the truck would be close to the soft edge of the road and on steep cross-falls in order to make the turn.

68 The cross-fall of the road in places was too steep, Mr Leek said, and it would mean wider batters downhill to raise the cross-fall. The total width from the toe of the batter to the retaining wall for engineering purposes could be up to 15 m he thought. This would mean either clearing more trees or killing them due to the fill over their roots. The new escape fire trail would have similar requirements he said.

69 Mr Keller said they would use “cut only” in construction of the trail so that there was no steep edge of the road or batter for a fire truck to put its wheel over. This would mean deeper excavated cut in the side of the hill but using gabion retaining walls the total width could be kept to 7 or 8 M. Mr Leek agreed that it was possible.

70 They both agreed passing bays were needed on the steeper sections every 100 m and on the easier slopes every 200 m. That would require extra width to the roads and excavation and additional trees to be removed at those points.

71 Mr Pollard’s main objection to the house was its high visibility in the rural landscape. If approved, this would be the first house built on top of a landmark hill. It would impact upon the rural landscape and the cultural significance of Mount Molly Morgan.

72 The requirement to minimise vegetation for bushfire safety meant there would be little screening of the very large house. It was almost directly on the alignment of the new F3 extension recently committed to by the New South Wales Government and shown in Exhibit 16. So the house would be seen from several kilometres away travelling west and from Allendale Road. It was also quite visible from the New England Highway at Harpers Hill and from Greta.

73 Mr Warnes referred the Court to another house nearby on lot 3 Camp Road that was also highly visible. It had been coloured so that it blended somewhat into the scenery.

74 He said the proposal would only be seen from distant views. From Camp Road, only the cupola could be glimpsed. From the distant views the bush on the west side of the house was about the same height as the cupola so the house, given the right colours would blend in, he said.

75 Mr Leathley drew attention to the size of the house, which he equated to about four times the floor area of a typical suburban house. The mountain was a local landmark at about a 180 m high.

76 During the Court’s inspection white vehicles were parked on the house site at about the same distance apart as the diameter of the house and there was a height pole erected the same height as the cupola. Whilst the flagpole needed binoculars to be seen from the distance, the cars were visible and given the size of the house, so much larger than the vehicles, Mr Leathley thought the house would be highly visible.

77 Mr Warnes said most rural homes were bigger than suburban homes and the scale of the landscape allowed that without it being detrimental. There were rural homes dotted all over the landscape, it was accepted by the public.

78 Mr Warnes criticised Mr Pollard’s photomontages because the viewpoints were in the air where most people would not be located unless in a helicopter. Mr Leathley showed other photos from a distance at the viewpoints the Court was taken to. Mr Warnes also had photographs from similar locations. The flattened top of the hill was clearly visible. Mr Leathley said the house must be clearly visible above that flat area from the surrounding countryside within an arc of about a 180o. Included in that was the highway and the freeway extension carrying about 10,000 vehicles per day.

79 The house on lot 3, referred to by Mr Warnes, was not at the top of the local landmark, Mr Leathley said. True, said Mr Leathley, it was on a spur but much lower down than the crest, and he did not think it was an appropriate example to be repeated. He knew its history and said it had been approved 8 years ago under delegation by an officer of council without the town planning qualifications to appreciate visual impact.

80 Mr Warnes said he had checked the history too, and the original approval had acknowledged its visibility in the landscape so that aspect was not ignored. Then, there was another approval in 2002 for a second storey to be added with only a condition to change its colour from white to the bluish tones seen by the Court. That was why it blended into the scenery to some extent, Mr Warnes said. Mr Leathley said even the second approval was by a person without town planning qualifications.

81 Mr Pollard said it would be hard to find a site and a building being more in conflict with the statutes and controls. The statutes put high value on the broad regional context of landscape and the preservation of its scenic beauty and local cultural assets. It stated the principles of no buildings on significant landscape features. There were no other houses on top of local landmarks. Branxton, Greta and Lochinvar were colonial towns that respected the landscape.

82 There were other potential sites for a house on the property said Mr Leathley. He identified some towards Camp Road, and on the south ridge near the 180o bend in the access road, and two others in the grassland on the western side of the mountain.

83 Mr Warnes said the ones towards Camp Road were unacceptable as they were within the noise buffer zone of the F3 extension and would not allow a quiet rural amenity at the house. One of the grassland sites was close to the vineyard on the adjoining property and crop chemical spray drift buffer separation made that location undesirable. The other was reasonably close to the Smith homestead such that oral privacy could be a problem. Also the grassland got a lot of sheet-flow water coming down the mountain during rain and became waterlogged.

84 The advent of the F3 extension and the proposed huge resort on the old Greta migrant camp meant the area was becoming almost urban, in Mr Warnes’ opinion.

85 In considering the evidence the Court has come to the conclusion the two major issues are:

1. The ability to protect the house, its occupants and the Rural Fire Service vehicles and crew in the event of a bushfire and,

2. The visual impact of the house on top of the local landscape feature acknowledged by both parties’ experts as a landmark with a cultural association.

86 The disagreements of the experts on the category of vegetation within the APZs is important. The group 2 or group 3 types relate to their flammability. The Court accepts the practice adopted in the NSWRFS Bushfire Protection guide and by both parties that a safe or conservative approach is best when dealing with bushfire and the respondent’s vegetation classification is the appropriate one as it is plain some of the vegetation in each sector of the APZs is group 2.

87 Whilst the applicant’s experts gave highly skilled evidence on ways in which one could seek to minimise the bushfire hazard, the methods are beyond the limits of the currently accepted research provided in the guide of the New South Wales Rural Fire Service, Planning for Bushfire Protection. It required consideration of slopes up to a hundred and forty metres from the house in coming to the conclusions about the APZs. On all sides of the house when one does that the average is well beyond 18 degree slope.

88 The applicant relies on the recommended clearance of vegetation within much lesser distances set out for APZs in the guide where the slopes are flatter towards the top of the hill. That might be satisfactory on-sites where the rest of the topography is flatter. But, the Court accepts Mr Hislop’s evidence, as the representative of the Rural Fire Service, that the steep slopes and vegetation downhill are likely in extreme conditions to lead to wildfire or crown fire situations that would make protection of the house, its occupants and the fire crew, impossible. The flames would reach the house directly.

89 If the house was to be built one could speculate that it would only take one moderate bushfire, let alone an extreme one, to cause such concern for safety that all the trees within a certain radius of the house would be removed. That would leave the house entirely exposed to view, but the Court does not take that possibility into account in assessing the visual impact or the fire hazard. The New South Wales Rural Fire Service guide specifically seeks that to minimise bushfire hazard for buildings, especially houses, the following apply:

“1. Avoid ridge tops.

2. Avoid steep slopes, particularly upper slopes and narrow ridge crests.

3. Avoid locations where adequate asset protection zones cannot be provided within the property boundary.

4. Surround isolated habitable buildings with a wide driveway of gravel or concrete.

5. Avoid slopes with northerly or westerly exposure as they are more prone to bushfire.

6. Locate water storage on site near the building.”

90 These are not all the requirements of the guide but they are the ones that the proposal is in direct conflict with. On those grounds alone, the proposal should be refused.

91 When one adds to this the objectives in clause 10(a)(ii), (c)(i),(ii) and (v) and clause 32(2) of the Cessnock Local Environmental Plan 1989 and objective (iii) as applied to this proposal in the Rural A zone, that also recommend avoiding locations such as this, the proposal on town planning grounds is also subject to refusal.

92 Therefore the orders of the Court are:

1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibit A, tabs 1, 2, 3, 4 and Exhibits F and K and Exhibits 9, 10, 12, 14, 15 and 16.

K G Hoffman

Commissioner of the Court

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