Vigor Master Pty Ltd v Hornsby Shire Council

[2010] NSWLEC 1297

Land and Environment Court

of New South Wales

CITATION:

Vigor Master Pty Ltd v Hornsby Shire Council [2010] NSWLEC 1297

PARTIES:

APPLICANT
Vigor Master Pty Ltd

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10525 of 2010

CORAM:

Pearson C

KEY ISSUES:

CONSENT ORDERS :- Development consent
Subdivision
Blue Gum High Forest

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Threatened Species Conservation Act 1995
Hornsby Shire Local Environmental Plan 1994

DATES OF HEARING:

2, 3 November 2010

EX TEMPORE JUDGMENT DATE:

3 November 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Johnson, barrister

RESPONDENT
Mr P Jackson, solicitor
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

3 November 2010

10525 of 2010 Vigor Master Pty Ltd v Hornsby Shire Council

JUDGMENT

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

1 Commissioner: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Hornsby Shire Council of consent to development application DA361/2010 seeking approval for the subdivision of one lot into two lots.

2 The application relates to lot 7 DP 270639, 9 Maroota Way, Beecroft (the site). The proposal is to subdivide that lot into two new lots, proposed lot 9A with an area of 627.4 sqm and proposed 9B with an area of 3,692.9 sqm. The parties have reached agreement and are seeking consent orders from the Court.

3 The site forms part of an eight lot community title subdivision situated on a steep slope with a southerly aspect. The site has frontage to a central access way known as Maroota Way off the eastern side of Hull Road in Beecroft. The total area of the site is 4,3020 sqm. The site has a fall of an average of 23 per cent to the south-western corner of the site.

4 The site includes existing trees identified as Blue Gum High Forest (BGHF) which is a Critically Endangered Ecological Community listed under the Threatened Species Conservation Act 1995. The BGHF community occurs on approximately 3,000 sqm or 61 per cent of the site, and forms part of a vegetation corridor extending north-east through the adjoining site.

5 The site is currently subject to a vegetation management plan for restoration of the BGHF pursuant to the conditions of consent for development application DA2457/2002 for the original community title subdivision. The site is also subject to a drainage easement and an easement for a riparian zone, which have a combined area of approximately 840 sqm.

6 The plan for which the applicant seeks approval (exhibit A) shows an indicative building envelope for each of the two proposed lots. By way of background the applicant has lodged a separate development application, DA770/2010, for the construction of a dwelling house on what is proposed to be lot 9B of the subdivision which is the subject of these proceedings. That application has not yet been determined by the Council. The application before the Court relates only to the proposed subdivision of the site.

7 The relevant planning controls are provided in the Hornsby Shire Local Environmental Plan 1994, under which the land is zoned Special Uses A (Community Purposes). The subdivision is permissible with development consent.

8 The Council publicly notified the development application and received three submissions in opposition to the application. Two were made by residents of Spring Street, which adjoins the site to its south. One resident stated his opposition on the basis that the site is environmentally sensitive, the land is sloping and is part of a natural water drainage course. Another resident in opposition stated his concerns to be the importance of retaining part of lot 7 as an area of bush for the regeneration of the BGHF. A further submission was received from the Secretary of the Beecroft Cheltenham Civic Trust Inc relating to the typography, site stability and disturbance of the existing land form.

9 The Council’s contentions related primarily to the BGHF. The first contention in issue was that the proposed subdivision will adversely impact on the BGHF, the second contention being that the applicant has not demonstrated appropriate regard for the BGHF. The third contention related to the public interest, in particular the concerns raised by objectors.

10 The evidence before me includes a joint report prepared by expert ecologists Mr Alex Fraser (on behalf of the Council) and Mr Nick Skelton (on behalf of the applicant). Mr Fraser and Mr Skelton are in agreement that there is sufficient room on the site for the indicative house footprints, for driveway access, for a bushfire asset protection area and for providing adequate land for the conservation of the BGHF Critically Endangered Ecological Community remnant that occurs on the southern part of the land. The experts also agreed that it is possible to specify appropriate primary and long-term management of the BGHF Critically Endangered Ecological Community remnant within what they describe as an Environment Protection Zone. The experts further agreed that short-term primary works and an appropriate vegetation management plan could be made a condition of a consent to be satisfied prior to lodgement of linen plans.

11 The experts disagreed as to the best way to ensure an appropriate mechanism for that protection. Mr Fraser was of the opinion that what was required was an instrument registered under s 88B of the Conveyancing Act 1919. Mr Skelton’s opinion was that the legal mechanism for protection was a matter for others to determine, rather than an ecological matter.

12 The joint report of the ecological experts included a plan which shows an asset protection zone for the two indicative building envelopes as recommended by Mr Eadie, who undertook a bushfire assessment on behalf of the applicant, to meet the requirements of Planning for Bushfire Protection 2006.

13 The ecological experts agreed on a proposed Environment Protection Zone covering approximately 61 per cent of the site. The proposed Environment Protection Zone includes an area which is subject to a vegetation management plan for restoration of the BGHF which was required as a condition of consent for DA2457/2002 for the original community title subdivision. That area also includes the riparian zone which is part of the overland flow and extends into part of the adjoining land to the west, which is lot 8 in DP270639. The Council is satisfied that the regeneration work has proceeded under that vegetation management plan on the identified area in accordance with its requirements, and has agreed that the current vegetation management plan should continue to apply only to that part of the adjoining lot 8 to which it now applies.

14 In discussions between the parties the applicant has agreed to a condition requiring the preparation of a vegetation management plan for regeneration of the BGHF to the east of the area currently subject to the vegetation management plan. That area is indicated as area Y on the plan which is now exhibit A. The applicant has also agreed to the imposition of a positive covenant requiring management of the area to be covered by this vegetation management plan for a period of three years and a restrictive covenant restricting activities including building work or mowing within the area covered by that vegetation management plan and the adjoining area on which regeneration work has already been carried out. That larger area subject to the restrictive covenant is indicated as areas X and Y on exhibit A. The proposed conditions include condition 7 which specifies the requirements for the vegetation management plan including its preparation and implementation.

15 The central issue in these proceedings has been the impact of the proposed subdivision on the BGHF. This impact has been assessed initially by Council officers, based on the Flora and Fauna Assessment provided in support of the development application, and in the course of these proceedings by the expert ecologists. The plan before the Court and the proposed conditions meet the contentions raised by Council in providing a mechanism for protection of the agreed area of BGHF on that part of lot 7 which is proposed to become lot 9B, and its ongoing maintenance and regeneration. That is to be achieved through the preparation and implementation of a vegetation management plan with specific criteria to be met before the release of a subdivision certificate and to continue for three years from the date of registration of the subdivision plan. The registration of a positive covenant and the restrictions on the use of land within the Environment Protection Zone under s 88B of the Conveyancing Act will inform both current and future owners of the land, and assist in enforceability of the restrictions imposed.

16 In accordance with the requirements of the Court’s Practice Direction the three objectors were informed of the proposed consent orders, and I am advised by the Council’s representative that they have stated their support for the imposition of the s 88B instruments and the protection of the BGHF.

17 In those circumstances I am satisfied that it is appropriate to grant consent in the form of the orders proposed by the parties.

18 The Court orders by consent:

1. The appeal is upheld;

2. Development consent is granted to development application DA361/2010 dated 24 March 2010 as amended for the subdivision of lot 7 in DP 270639 into two separate allotments to be lot 9A and lot 9B at Maroota Way, Beecroft, in accordance with the conditions of development consent attached as annexure A;

3. The exhibits are returned except for exhibits A and 1.