Vigor Master Pty Ltd v Warringah Council - [2004] NSWLEC 162

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Vigor Master Pty Ltd v Warringah Council [2004] NSWLEC 162

PARTIES:
APPLICANT
Vigor Master Pty Ltd
RESPONDENT
Warringah Council

FILE NUMBER(S): 11177 of 2003

CORAM: Hoffman C

KEY ISSUES: Development Application :- Threatened species - need for a species Impact Statement - access - desired future character for B2 Oxford Falls Valley Locality - bushfire protection - visual impact

LEGISLATION CITED: Environmental Planning & Assessment Act 1979
Warringah Local Environmental Plan 2000

CASES CITED:

DATES OF HEARING: 24-27/02/2004 and 04/03/2004

DATE OF JUDGMENT: 06/21/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr T F Robertson, barrister
SOLICITORS
Woolf Associates
RESPONDENT
Mr P W Larkin, barrister
SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11177 of 2003

Hoffman C

21 June 2004

Vigor Master Pty Ltd
Applicant

v

Warringah Council

Judgment

Introduction.

Warringah Local Environmental Plan 2000

The site, surroundings and ownerships
2. The house was proposed on a 2.72 ha lot called Portion 1092 and is part of the “existing parcel” under the statute. An existing parcel allowed only one house per 20 ha on the combined Portions 1086, 1088, 1089, 1090, 1091 and 1093. They formed a parcel in the same ownership at 8 March 1974. They are situated partly on the eastern ridge above Oxford Falls and on bushland sloping down westwards into the valley between a Crown road reservation off Brooker Avenue, and Oxford Falls Road. The applicant acts for the owners of Portions 1091 and 1092. Portion 1091 has 3 tenants in common, Portion 1092 has 6 tenants in common.
3. There is an existing development consent for a house on Portion 1091 on the lower slopes of the parcel close to Oxford Falls Road. The house has not been built, as yet.
4. The applicant had an undertaking from the 3 owners of Portion 1091 to surrender the existing development consent No. 2000/4472 for the house on the Oxford Falls Road frontage, if after this appeal, a consent for the proposed house on Portion 1092 is forthcoming. The Court was told, the surrender of that existing consent would allow a valid consent for the proposal to issue.
5. The proposed house was on the ridge of the coastal range and the site gave views eastwards out to the ocean, and to Manly on the southeast and also through Sydney Harbour heads.
6. To the west were extensive views over the bushland rural properties in the valley towards French's Forest and northwest towards Belrose including Kur-ring-gai Chase beyond.
7. It is important to understand part of the dispute was whether the ridge on which the house was proposed could be categorised as a “ridge top” under the statute.
The adjoining and nearby uses, and access to the house from public roads
8. The access to house was to be via Brooker Avenue. It was constructed as a public council road only to No 39 Brooker Avenue, a residential sized lot in the Locality B1 French’s Forest East. It was part of a typical suburban residential subdivision to the south of the subject land.
9. Between No. 39 and Portion 1092, a Crown road reservation continued with about 200 m of concrete paved access drive with a kerb and gutter on the uphill side of the drive. For about the first 50 m there was a small retaining wall on the downhill side of the drive above the back yards of houses downhill that fronted the continuation of Brooker Avenue.
10. The ownership of the road reservation north of No. 39 was by the Crown. The applicant said it had a letter from the Department of Lands and Water Conservation saying there was no objection to its use for access and transfer of ownership to council. The council did not accept this as there was widening and other works that would be needed if it was to be used, and the council was not prepared to accept ownership at this stage. The applicant said it may only require a Permissive Occupancy license over the Crown road but during the hearing it became an agreed fact that the Crown would not allow private access along the road reservation unless it was transferred to council as a public road.
11. The B1 Locality ended at No. 39, and past it on the West and North was the B2 Locality Oxford Falls Valley that allowed agriculture and low density development. The concrete driveway section of the Crown road reservation was in the B2 Locality.
12. On the east side of the Crown road reservation, north of No. 39, was the boundary with the Locality B8 Red Hill area under the LEP.
13. The B8 Locality was another area of more or less standard suburban layout known as the Red Hill subdivision. It derived its name from a peak of the ridge in the locality that was just north of Portion 1092. There had been a quarry for red gravel on the peak, and in recent years the land below it had been categorised residential under the statute, and subdivided. The quarry on the peak had run out of red gravel and it was now a lookout and park utilising native vegetation for regeneration of bush.
14. Part of this Red Hill subdivision was on the east side of the concrete driveway section of the Crown road. The driveway abutted the back fences of Nos. 9, 10 and 11A Guardian Parade. These houses were opposite Portion 1092 on its eastern side and the proposed house.
15. The concrete drive finished at the back of No 11A, but the unmade Crown road reservation continued through the bush towards the peak of Red Hill.
16. At the end of the concrete drive, a dirt laneway departed from the alignment of the Crown road, and ran east alongside No. 11A and No. 11 Guardian Parade to a gate onto its roadway.
17. There was another gate adjacent No. 39 Brooker Avenue, so the driveway in between could only be accessed by Council, the Rural Fire Service and other authorised persons.
18. The proposed house intended to use the concrete driveway for access from No. 39 Brooker Avenue to travel north, and at the end of the driveway behind No. 11A Guardian Parade, its own private driveway would commence. It would curve west and southwards up on to the top of a rocky plateau on the ridge of Portion 1092 where the house was to be located.
19. The council also claimed that the right to use the concrete driveway section of the Crown road for access to the proposed house had not been demonstrated by the applicant. If it could be used the council said that it was too narrow for fire trucks, and public use and would require widening. That would have its own impacts and require further evidence and notification of the house owners below it and further consideration than the council had been required to prepare by the Issues in this appeal.
20. The applicant disputed the extent of works suggested by the council, but agreed some works including passing bays on the Crown road would be needed. In the end the applicant agreed that widening to 1 m shoulders and 8 am carriageway may be needed but not 10 m carriageway as the council suggested.
21. Following submissions on this the Court indicated to the parties that the hearing of the other evidence should proceed, and if the Court's determination on those matters favoured the applicant, the parties would be called back to deal with the access. The parties accepted this course.
The house site topography and vegetation and fire hazard
22. As one came along the Crown road drive adjacent the boundary of Portion 1092, the land sloped gently up to the foot of the 3 or 4 m high rock outcrop that formed the small plateau. The house would be seen on top of the outcrop with some intervening vegetation.
23. According to the evidence due to the poor soils and exposed location, vegetation on the plateau was only 3 or 4 m high and consisted of Australian native shrubs and wind-cropped trees and ground cover. Amongst the ground cover in various locations on the plateau and places to the north was an endangered plant species called tetratheca glandulosa.
24. The house had originally been located in a patch of these endangered plants, and had, prior to this hearing been allowed by the Court to relocate so that only a few of the plants would be destroyed by being under the actual house.
25. Part of the council's case was that the destruction of those plants would be accompanied, in time, by the destruction of the others due to the proximity of the house, and the use of the land around it as domestic yard and recreation space, together with the need for bush fire hazard reduction.
26. The house was located in an area of high hazard from the bushfires that swept the Oxford Falls area from time to time.
27. The neighbours in Guardian Parade were particularly aware of this hazard having experienced dangerous bushfires coming from the West across the subject land in recent years.
The house and curtiledge
28. The proposed house was mainly single storey with an attic space of un-named use of about 44 sq m utilising 4 dormer windows. On the ground floor, there were 4 bedrooms, TV room, study, lounge, dining, sitting, family room and kitchen with a two-car garage.
29. The house had a main central section oriented northwest to southeast. At the West end of it, there was another wing of the house that splayed out from the main section towards the north. In this was one of the bedrooms, a laundry and the two-car garage. On the east end of the main section of the house was living rooms and recreational terraces generally oriented to the views towards the ocean and the Sydney Harbour heads.
30. The respondent noted that the house straddled the topography of the plateau and due to the undulations the living room end of the house was about 2.4 m above ground level whilst the western or garage end was almost at ground level. The applicant said this avoided any need to excavate that might disturb the existing subsurface soil and water regime that was a consideration in protecting tetratheca. However, it was put that the house could be lowered 500 mm without excavation.
31. As mentioned before the private drive entry from the Crown road driveway curved westwards and then south and then westwards again to pass by almost the full length of the northern side of the house to reach the garage at the western end.
32. The south east or living room end of the house was about 10 m from the drop off from the plateau. The garage end was also about 10 metres from the drop off from the plateau on the western side. On the south side of the house, towards No. 39 Brooker, the edge of the plateau was 100 m or so away.
33. On the northern side of the house there was not so much a drop off from the plateau but rather a narrowing of the plateau, such that it formed a saddle. The saddle was about 30 m to the north of the house after which it widened again as the ridge rose up to the peak of Red Hill.
34. A perennial watercourse on the eastern side of the saddle more or less defined the northern boundary of Portion 1092. The watercourse ran down to the end of the concrete driveway and past it on the north, alongside the track down to Guardian Parade where there was a stormwater pit.
35. The bulk of Portion 1092 was to the West and southwest of the house.
36. Dr Clements and Dr Robertson had agreed that an area of about 0.98 ha around and including the house would be affected and was largely defined by the bush fire hazard reduction zones. There was an Inner Protection Zone (IPZ) within 40 m of the house and an Outer Protection Zone (OPZ) of another 10 m beyond that.
37. The landscape proposal was to keep the native vegetation as much as possible. But within the IPZ the parties agreed that trees, shrubs and ground cover would have to be slashed down to about the height of grass in order to reduce vegetation that would burn in a bushfire. Within that area there could be clumps of natural vegetation including trees and shrubs at certain spacings. There needed to be gaps of 6 m clear between canopies.
38. The council's expert bushfire evidence was that the IPZ would need to be cleared for about two-thirds of its area and slashed down to almost grass height, leaving about one third able to retain trees and shrubs. The applicant's bushfire expert did not disagree with this need. But, the flora and fauna experts of the parties differed greatly on the resulting impacts especially on the endangered floral species tetratheca glandulosa and possible impacts on potential habitat on site of the Southern Brown Bandicoot and Red Crowned Toadlet and Eastern Pygmy Possum.
39. The widest bushfire protection zones were to be used on the north, the west and the south sides of the house. The eastern side that bounded on the Crown road and the Red Hill subdivision was less hazardous but control of vegetation was still needed to prevent spread of fire to Guardian Parade. The applicant proposed to plant tall growing trees along the east boundary beside the concrete drive just out of the Crown road reservation, plus other landscaping using native species, to enhance the approaches to the house and screen it from being seen from the south and east.
40. On the west below the plateau the existing vegetation was thick shrubs and trees. The tree canopies did not rise much above the shrubs except in locations further downhill. More trees were to be planted below the plateau where permitted by the IPZ and the OPZ. This was to screen the house from view from the valley and the Wakehurst Parkway.
41. This was related to the applicant's interpretation of the statute that houses on ridges were acceptable if they were not discernible in those locations, and that the site of the proposed house was not a “ridge top”.
The issues.
42. The following were the issues at the hearing. Issues deleted were Nos.3, 3.1, 8, 8.1(a) & (b), 15.1(b):

A001 (B), A002 (B), A003 (B), A004 (B), A005(B), A101(B), A102(B), A103(B), A201(B), A202(B) dated 14 January 2004; drawings no. 3921-101,102 & 103 dated 12 January 2004; drawings no. 3921 DET1 and 3921DET3 dated 9 January 2004, and revised boundary location and road survey plan drawing no. VS001 dated 8 December 2003

1. GENERAL CONSIDERATIONS – S.79C

2. INTEGRATED DEVELOPMENT

deleted

3.

SITE ANALYSIS

4. INADEQUATE INFORMATION

,

and house building platform plan

up

(s), of the garage, dwellings and building platform

Deleted

S

both garbage and sewerage) and details of the manner in which services (water and telephone) will be provided

5. FLORA AND FAUNA

6. ACCESS

7

.

DESIRED FUTURE CHARACTER

The proposed development

8. HOUSING DENSITY

PROTECTION OF EXISTING FLORA

10. DEVELOPMENT NEAR PARKS, BUSHLAND RESERVES AND OTHER PUBLIC OPEN SPACES

11. RETAINING UNIQUE ENVIRONMENTAL FEATURES ON SITES

dwelling, building platform

12. TRAFFIC ACCESS AND SAFETY

insufficient

13. WATERCOURSES AND AQUATIC HABITAT

Insufficient information has been provided to determine the effect of the proposal on

and any changes to runoff and/or hydrology on and downstream of the site

14. BUILDING BULK

15. DEVELOPMENT ON SLOPING LAND

16. KOALA HABITAT PROTECTION

Deleted

17. SITE FACILITIES

18. MANAGEMENT OF STORMWATER

19. CONSTRUCTION SITES

may

20. PUBLIC SUBMISSIONS

Visual impact
Effects on ecology
Access

Dr R. Lamb – biologist and visual impact specialist.
Mr R. Free - forrester and bushfire expert.
Dr A. M. Clements - plant ecologist.
Mr C. R. Williams - fauna expert and ecologist.

46 . There were expert reports in evidence also from Mr M. J. Boyden - civil engineer, Mr N. R. Kennan - town planner, and a thesis on tetratheca glandulosa and darwinia biflora and the Threatened Species Conservation Act by Ms C. L. Brown - biological scientist; but they were not required for cross-examination.

Mr C. Hill - town planner on visual impact.
Dr D. Robertson – fauna expert and ecologist.

48 . There were expert reports in evidence also from Mr D Mepstead – surveyor, and Mr G. Pickworth – architect, but they were not required for cross-examination.
49 . There were joint reports in evidence also from Messrs Hill and Lamb, Hill and Kennan, Mepstead and Boyden, Free and Robertson, and Williams and Robertson

50 . There was also a joint report following an on site inspection to locate colonies of tetratheca towards the end of the hearing by: Dr Robertson, Gillian Goby, Marnie Alzbetkin all of Cumberland Ecology for the applicant; and Sian Wilkins, Jane Rodd of Anne Clements & Associates, and Mr S. Withington of Warringah Council for the respondent. These persons were not required for cross-examination except for Dr Clements and Dr Robertson.

The evidence

51. There were a number of residents nearby who objected to the proposal. Their evidence was an Exhibit 1 and many of them attended the view of the site by the Court to indicate their concerns.

52. These could be summarised as:
· overlooking from living rooms and eastern terraces of the house into their private backyards, swimming pools and Windows.
· Traffic and parking on the concrete driveway section of the Crown road reservation.
· The bush fire hazard of the site and increased danger to Guardian Parade houses if the proposal caught fire.
· The character of the area that would be adversely affected by a house on the ridgeline and the consequent loss of vegetation.
· The sensitivity of existing vegetation to impact from the proposal.
· The new location for the house is closer to the existing houses than the original location and makes privacy impacts worse and further reduces visual quality.
· It is a large site, the house should be located further west out of sight from Guardian Parade.
· The use of the narrow concrete drive section of the Crown road for access to the house will make it unsafe for the existing use by pedestrians for recreation purposes and access to bus stops.
· Opening the concrete drive to public use as it must be, if used as an access to the house, will encourage drivers to use it to try to reach the cul-de-sac of Guardian Parade, and the residents do not want that. It would become a shortcut for all of the Red Hill subdivision to go towards French's Forest.
· If the concrete driveway is allowed as an access to the house it must be widened at the applicant's cost.
· Opening of the driveway would encourage joy riders and trail bikers to use it to access the Red Hill Park and bush land, causing noise and nuisance to the existing quiet enjoyment of Brooker Avenue and Guardian Parade residents, and possible parking congestion.
· There were no formal paths into the park from the end of the driveway, so there would also be undesirable disturbance of the sensitive bush land containing the endangered tetratheca.

53. The Rural Fire Service had written with draft conditions for the erection of the dwelling in a high bush fire hazard area.

54. The Department of Infrastructure Planning and Natural Resources wrote with recommendations on soil and vegetation conservation.

55. The waste management assessment indicated that waste containers would need to be put out for collection adjacent No. 39 Brooker Avenue.

56. A backburn or controlled burn for bushfire protection of the area on the plateau intended for the house site had occurred sometime before the hearing of the appeal. The canopy of trees and tall shrubs had only been singed. The ground cover and lower shrubs had been burnt. There had been some regrowth.

57. The Court was shown sprouts of tetratheca in the area of the house site, and to its south, and to the north just over the boundary of Portion 1092 on the rise of the Red Hill reserve towards its peak. In this latter area, the Exhibit 28 joint experts’ identification survey of tetratheca colonies had found 208 to 228 plants. Each party of experts worked independently thus the slight difference in counting.

58. In the area on the site occupied by the house and its IPZ and OPZ the experts had agreed about 0.48 ha was the location of tetratheca plants. Dr Clements estimated from survey 168 plants would be removed. Dr Robertson also by survey found 78-86 plants and calculated on Mr Free’s identification of reduced OPZ perhaps only 60 plants. Dr Robertson said his was the more accurate figure because it deleted areas in the site that were rock and would not grow any plants whereas Dr Clements had included them and obtained her total loss of plants by multiplying an average of plants per quadrat from her survey.

59. Dr Clements said these variations could be attributed to more things than Dr Robertson suggested, for example the areas of actual house site plus Asset Protection Zone (IPZ and OPZ), appeared to vary on each occasion it was done; and, due to the backburn, and tetratheca being a low shrub, it was all burnt out, and fresh germinations after the backburn were still occurring even at the time of the hearing.

60. Dr Clements had made an allowance for expected total germinations, Dr Robertson appeared to have used only his survey observations.

61. An earlier “8 part test” had been agreed by the experts as inadequate. One of the main questions before the Court was whether the second “8 part test” prepared just before the hearing under s 5A of the Environmental Planning and Assessment Act 1979 had been adequate; and as a conclusion to that, would an approval of the house and its associated IPZ, OPZ and external recreation spaces result in the disruption of the local population of tetratheca threatened specie such that it was likely to be placed at risk of extinction.

62. Dr Lamb criticized the landscape plan showing new vegetation on the east of the house “potted” into the top of the rock outcrop on the edge of the plateau. He said it would probably die as the pots into the rock would be like basins and hold water and drown the plants. In any case the outcrops are part of the natural features to be retained and the intended treatment appeared inappropriate. The applicant later deleted this vegetation.

63. He said the trees along the driveway boundary and those shown on the north and west of the house were largely on rock too, with only shallow, poor soils. He doubted they would grow well. He pointed to the wind cropped and salt-burnt shapes of existing trees and shrubs and expected new vegetation would achieve little better.

64. It was put to him that the landscaping could be grown on mulch or soil mounded on the existing soils and provide additional nutrients to give better growth.

65. He replied that such would change the natural soil nutrients and water regime and would affect the existing natural bush that had evolved on the poor rocky ground and was proposed to be retained. One could not have both in his opinion.

66. With the obvious wind exposure of the site, any trees that grew large were likely to be blown over in his opinion.

67. He said further, that on the eastern side, the main views from the house towards the coast would mitigate against the trees being allowed to achieve the heights of 15m suggested by the applicant.

68. The house being on the ridge line would be highly visible from the east, contrary to the desired future character for the Locality B2 Oxford Falls Valley.

70. As a result the montages showed the trees giving more screening than intended by Exhibit B, and showed trees much taller than existing trees of the same type on site.

71. He agreed in cross-examination that the proposed trees such as the haemastoma , the capitallata and punctata could grow on sandstone up to 15 m, 20 m and 12 m respectively, but only in favourable situations.

72. It was put that the vegetation he saw as continuous in the graphics was a depiction of shrubs above the rock shelf between it and the house to screen the tall foundations. He replied there were still too many to comply with the specification of the IPZ and OPZ.

73. From the west it was shown Dr Lamb had used the high visibility of a White House on the same ridge, but further to the north, to draw his conclusion on the proposal as seen from the Oxford Valley, points north, and the Wakehurst Parkway.

74. Dr Lamb agreed that the White House was two-storey above high foundations. Also that he had failed to note 2 other houses just north of the White House. They blended into the trees in muted colours and were only discernible once one you were aware they were there.

75. There were height poles erected on the site to show the roof ridges of the proposal. He agreed that from his points of observation to the West the height poles erected on the site could not be seen even with binoculars. However he said the site was to be two-thirds cleared for the IPZ and OPZ, whereas the other houses were obviously not cleared. He had been involved with the two houses north of the white one, and knew they were located in tall and dense vegetation.

76. He agreed from the west, the points of observation of the proposal were quite distant and the proposed house, if seen, would be a minor component of any view. From the valley floor and the Wakehurst Parkway he agreed the slope and the low existing vegetation was likely to screen the proposal.

77. Mr Hill was the town planner for the applicant. It was put to Mr Hill that if the house floor level was lowered 0.5 m and the attic was deleted to lower the roof by another 1.3 m, that the house would not be seen from distant places to the east, South or West.

78. He said that after the on-site view that Mr Free's evidence was that the site with the backburn was reduced to the OPZ requirements and from his photos of the existing vegetation on site and the height poles, it was obvious the house would not be seen, nor its chimney.

79. In his opinion there were 6 m gaps between canopies of the trees in the montages. He said it was the position of proposed trees and the angle of these images that made them look like continuous canopies. He referred to the current landscape plan in Exhibit B to show the stated location of trees.

80. He believed that views from the house would be retained over the tops of the trees and so there would be no temptation to prune them.

81. He confirmed that with a lowering of the proposal by 1.8 m and selection of colours matching vegetation like the two houses north of the white one, the distant observer would not be aware the proposal existed.

82. In cross-examination he agreed he had shown the screen trees 15 m high in the montage of the distant view to the house from the east. He agreed they would have a 6 m to 7.5 m canopies spread as shown on the plan in Exhibit B. He agreed his montage showed 11 trees on the east of the house whereas the plan showed 8 trees. Also that he showed all trees with the same top of canopies height, whereas the ground sloped from RL 153 at the north end to RL 149.5 at the south, and so there would be less screening at the south end.

83. Mr Hill said the full 15 m growth height was not needed to screen the house and the plan used for his montages were earlier landscape plans than Exhibit B. It was pointed out that the Exhibit B landscape plan, as well as showing only 8 trees, showed only 3 or 4 m between tree canopies; 6 m was required between canopies for bushfire protection.

84. Following a call for the earlier landscape plans, and a photo from the west were tendered in Exhibit 17. On it there was a row of 11 closely spaced trees on the eastern boundary alongside the Crown Road driveway, as well as the vegetation potted in the rock shelf that had been deleted by the applicant. There was also additional trees shown on the West side beyond the OPZ had that were not in Exhibit B.

85. The photo from the west enabled a sheet of rusty iron on the site to be located and it had been used to position the proposed house in Mr Hill's montage. He agreed the house should have been north of the iron, whereas it was shown south.

86. Mr Hill agreed the house might be glimpsed given the combination of Exhibit B, and the requirements of the IPZ and OPZ.

87. Mr Free was the forester and bushfire expert for the respondent.

88 . In regard to safety procedures, one of his greatest concerns was escape routes from the house. Two escape routes were required to allow for fires from different directions so that emergency crews could reach the house and persons could escape. At the end of cross-examination he accepted that if the applicant could show rights to use the Crown Road concrete driveway from Brooker Avenue and the gravel track from the end of it to Guardian Parade, then there would be 2 escape routes.

89 . But he believed upgrade of any public access was essential. In disaster situations large fire trucks will be trying to get in, whilst panicking residents are trying to escape, and that may include residents from the Red Hill subdivision, plus the unpredictable arrivals of TV reporters and macabre sightseers. Vehicles must be able to pass and that was not possible on either escape route at present Mr Free said.

90 . He confirmed the requirement for the IPZ was that two-thirds of its area needed to be slashed to 15-20 centimetres high or about grass level. The remaining one-third of the IPZ could have clumps of shrubs, provided there was 6 m between clumps, or if trees were present 6 m between canopies of trees or between tree canopies and clump of shrubs, whichever was applicable.

91 . The target fuel rate was 5 tonnes of burnable vegetation per hectare in the IPZ. Of that the clumps of shrubs and trees were a 2 tonne per hectare component. To be kept at that figure it would be necessary to prune the trees and shrubs and ground cover about every 5 years in his experience.

92 . As an example of the extent of pruning needed unmodified shrubland was about 15 tonnes per hectare.

93 . He said he was not an expert on tetratheca , but knowing its size it would be slashed down in the cleared area of the IPZ, and in any clumps it would have to be very carefully avoided when pruning was necessary. If it was growing next to woody plants that had to be removed, the tetratheca would probably go too.

94 . Mr free was told council’s Plan of Management for Red Hill Reserve showed a high priority for a future access track from the end of the Crown Road driveway up to the peak. When built, that would give a third escape route. He had not seen the plan of management.

95 . He agreed that the area of the OPZ and IPZ were suitable for a controlled burn or backburn to minimise risk of bushfires reaching the site.

96 . Dr Clements said tetratheca tended to grow in clumps and that was evident on the site. It also tended to grow close to the roots of different shrubs and trees. Although not a lot was known about its biology, there appeared to be a symbiotic relationship between tetratheca and the specific plants it grew near. Growing in poor soils, this relationship was most likely to compensate for the lack of nutrients, by establishing mycorrhizal relationships with soil bacteria and the partner plants.

97 . In assessing the 8 part test under s 5 A of the Environmental Planning and Assessment Act 1979 , Dr Clements was satisfied that the areas identified in green outline on Fig. 1 Exhibit 18 were the locations of potential tetratheca habitat. They included the house site and an area to the South together with an area in Red Hill reserve to the north and further along the ridge.

98 . She said the survival of the local population was dependent on the parts of the local population being in not too far separated. The means of pollination she thought was by bees, their wings dislodged pollen from the flowers and was carried amongst the tetratheca plants. Bees have a range of about 500 m so that had an influence on the size of colonies. She thought the plants on the Red Hill reserve north of the house and those on the proposed site were the same colony. That would give a genetic mass sufficient for sustainability.

99 . She said the house and its OPZ and IPZ would separate the northern part of the colony from the southern part South of the proposed house. The clearing needed for the OPZ and IPZ would mean few tetratheca would survive in those areas to form a link around the physical barrier of the house. The works during construction of the house alone would be a threatening process under the Act to the survival of tetratheca .

100 . She was concerned that tetratheca and it's symbiotic flora were adapted to very low nutrients soil. This must be affected by the applicant's proposal to grow new trees on imported mulch and soils mounded or trenched on the existing soils. This was to be done in order to provide enriched nutrients so that the trees could reach the unusual heights of 15 m on this site.

101 . The run-off from the mounds or trenches would affect the existing soils and kill the existing vegetation in the OPZ and IPZ. If grass and lawn was intended in the IPZ on two-thirds of its area, the nutrients and watering to grow them would kill the existing vegetation in the OPZ and IPZ at least, and perhaps further afield. The high nutrient levels could encourage the establishment of weed species such as lantana and Crofton weed.

102 . By this process local population of tetratheca would be fragmented. She disputed Dr Robertson's claim that the local population was much larger than she had found. She did not believe he could use that to say the colony could survive without the area of the house and the OPZ and IPZ.

103 . She said one of the reasons seemingly innocuous plants such as tetratheca are declared for protection was that due to their rarity and little known biology, they were in the forefront of biological diversity in our environment that was generally accepted as very important for the long-term sustainability of life.

104 . A Species Impact Statement under the Act was needed in her opinion.

105 . On the existing trees on site she said the tallest haemastoma she found was 5 m and that the capitallata was 7 m. To reach 15 m they would need good deep soil and protection. Protection could be by being below the ridge away from prevailing wind directions or with dense vegetation around them. The ridge where the house was did not have those characteristics. The shrubs and heath on the ridge reached about 3 m the trees only just above that. Apart from nutrient enrichment killing the existing vegetation, if new trees tried to grow above the existing heights they would be wind cropped or Saltburned as seen on existing vegetation on site.

106 . In cross-examination Dr Clements was tested on her actual count in the IPZ and OPZ and house site of 90 odd plants of tetratheca, whilst claiming 168 maximum germination. She agreed that the estimated area of 0.49 ha of surveyed plants did have a lot of rock that should not be counted in an “average plants per quadrat” calculation of maximum germination. But she said if that was so, it made the plants in the house site even more critical as a link between the north and south arms of the colony.

107 . Dr Clements was asked if she or her team had looked for tetratheca beyond the quadrat survey grid south of the house. She said they had gone about another grid width of 10 m and found some plants.

108 . It was put to her Dr Robertson had found plants much further west. She agreed that she saw him out there, but her survey was in the areas near the house and just north of Portion 1092 in Red Hill reserve.

109 . She was questioned about other known habitat of tetratheca . She agreed there were a number of other known habitats than this one, but the National Parks and Wildlife Service still had the plant listed as vulnerable and requiring protection and conservation in the region. It was poorly represented in the southern areas where the site is.

110 . Then Ms Brown’s doctoral thesis was put to her on the basis that tetratheca is stimulated by burning and disturbance such as slashing. Dr Clements said it reshoots from root stock or seed after fire, but did not know about stimulation from disturbance other than fire.

111 . Another location called the Ardell site was put to her as a place where tetratheca co-existed with subdivision. She replied that subdivision was known to her and it had just been built a few years ago. A long term survival of tetratheca was unassessable at this point. Also the colony was next to a swamp in a position that discouraged persons from going through the tetratheca so it had protection, whereas on this site it would be directly disturbed by slashing and construction and recreational use of the IPZ and OPZ.

112 . Dr Clements was taken to her assertion on pollination by bees. It was shown the pollination method occurred in Tasmanian tetratheca glandulosa common species. The species on the site was tetratheca glandulosa labillarderei or, the usual species in NSW Central Coast tetratheca glendulosa smithii . Little was known about its pollination methods.

113 . It was put that apart from the tetratheca under the actual house that would be destroyed, the nearest other plants found were 20 m away. Dr Clements said in effect she could not confirm that, but in any case there were many plants in the IPZ and OPZ that would be lost.

114 . A photo of a capitallata tree was shown to her. It was in the yard of a Guardian Parade house adjacent the Crown road reserve on the east of the site. It was said it showed vigorous growth. She observed it did not have an upright habit, its branches were spreading due to wind, and salt-burnt tips could be seen.

115 . On the west of the site, she agreed that if two-thirds of the IPZ and OPZ were cleared, any trees left within them would have less competition for nutrients and so might achieve better growth than existing trees.

116 . Mr Williams had been dissatisfied with trapping surveys on the site for Southern Brown Bandicoot and Eastern Pygmy Possum and on surveys for the Red Crowned Toadlet.

117 . The experts had agreed the site was potential habitat for Southern Brown Bandicoot.

118 . Mr Williams thought that the survey for Red Crowned Toadlet had been done after scattered showers. Heavy rain was needed to the toadlet to be accurately recorded. He said it had a small home range so an inaccurate recording of its presence on or near the house site could have heavy impacts. He said the 8 part test on the toadlet was inadequate.

119 . In cross-examination he said although the toadlet may call out after scattered showers or even in response to a hand clap, their calls could be confused with other species so a visual identification of any call was needed too.

120 . He agreed that there was little habitat for the Eastern Pygmy Possum on site and it was marginal for it.

121 . He agreed that the Southern Brown Bandicoot did forage on ridges and drier areas but they nested in the dense heath of which there was none on the house site, or IPZ but some in the OPZ. In good foraging areas their diggings were prolific and there were few on the subject area. Their forage areas moved depending on the availability of food. Whilst the site may provide some food, it would only be a small part of food source and not prime habitat.

122 . Dr Robertson said in the bushfire fuel reduced zones, to reach 3 to 4 tonnes per hectare it would require slashing to two-thirds of the IPZ. He was recommending revegetation of the slashed area with native grasses and groundcover.

123 . The clumps of trees and shrubs on the remaining one-third could contain tetratheca . He believed there may be no loss of number of the endangered species. The house relocation had moved out of the main concentrations. There were only seven plants under the actual house. Tetratheca grew in clumps so they would become the areas kept in the IPZ and OPZ.

124 . He said there were more clumps of tetratheca than those acknowledged by Dr Clements. He had found it 105 m from the house westwards and 100 m from the house northwards in the Red Hill reserve and beyond. There were more further north in the Sydney Sandstone Ridgetop Woodland and Heathland communities. Tetratheca covers a large area he said and losing 180 plants would not threaten survival of the local population. In any case he believed there was less than 180 plants to be lost.

125 . If bees were the pollinators he was confident they could move on the site and along the ridge between clumps.

126 . He, unlike Dr Clements, did not believe tetratheca developed Symbiotic associations with only some specific plants. He said Symbiotic relationships were common amongst many plants in poor soils. They can use many types of mycorrhizal fungi. He asserted tetratheca juncea was non-specific in Symbiosis and proffered Exhibit X, a case study for recovery of tetratheca in mined areas in 2001.

127 . When pressed on his survey of 78 to 86 plants to be lost in the house, OPZ and IPZ areas he said tetratheca only occurred in small clumps within a total area of 0.98 ha. Within that, the 0.48 ha was the agreed area between himself and Dr Clements in which the clumps occurred. In his opinion it was even smaller than that area. He observed actual plants in only 0.14 ha that gave the figure of 78 to 86 plants. Dr Clements extrapolated an estimate for the 0.48 ha to get 168.

128 . Taken to the need to mulch and import soil for growth of new trees and vegetation, he said he had expertise and experience growing such trees on poor soils. Mulch would be made up of twigs, leaves and soil collected on site with low strength nutrients. He would not use imported or rich compost or soil. In the location trees are to be planted the soil would have to be dug up and then mixed with the mulch and the tree planted, so existing soil would be used.

129 . He believed haemastoma trees would reach 15 m in more protected areas. The existing trees showing wind crop and salt burn were only on the edge of the plateau where they were exposed and had shallower soils. He acknowledged the existing trees protected on the west in the heathland were only 7 to 8 m, but within the IPZ and OPZ with competing vegetation slashed and with mulch and mounded soil they would grow taller.

130 . He was shown a vegetation map of the Warringah area in Exhibit 24. He identified the orange colour on part of Portions 1092 and 1093 as Sydney Sandstone Ridgetop Woodland and the khaki colour on the site as Sandstone Coastal Heath.

131 . Most of the plateau of the house site was khaki with the woodland possibly on part of it and further to the West and South. The khaki extended north along the West side of the ridge and also between Portion 1092 and the peak of Red Hill. Then there was a thin strip of the orange on the east side or on top of the ridge extending north to connect up with other areas of orange. Dr Robertson said the orange was all habitat for tetratheca and he had found it in the khaki areas too.

132 . In regard to be Southern Brown Bandicoot, he assumed they were present in the vicinity and looked for habitat, but found no good shelter on the site. The ferns and vegetation on and near the house site did not suit nesting. It was marginal habitat only used for occasional foraging.

133 . He had set traps and could obtain no animals. He had done other surveys nearby and only ever obtained one of the species. With only 0.98 ha of a 2.7 ha allotment disturbed by this proposal, most of any habitat was preserved. Being part of an existing parcel, an approval of this house would maintain the rest undisturbed.

134 . In cross-examination he said the bandicoot main habitat and refuge would be the heath on the West with some foraging on the ridge. He found so few diggings for food, it was obviously poor forage on the house site. The loss of it would not threaten any local population of bandicoots or make it non viable. That was the core of the 8 part test he said.

135 . It was put to him that fox baiting was reducing their impact on native animals. He agreed foxes were the main predators responsible for decimation of bandicoots, but that foxes were known to be still in the area of Oxford Falls.

136 . He agreed if the endangered Southern Brown Bandicoot was present, the locality was important habitat. He believed that the IPZ and OPZ would remain occasional foraging area even after modification from Bushland. He agreed the bandicoot’s home range was 1ha for males and down to 0.5 ha for females but not 0.2 ha as some reports suggested.

137 . He agreed that his lack of trapping an animal did not prove they were absent. May be up to the year of trapping would be needed to prove that. It was impractical to trap over that period he said.

138 . He was shown the environmental impact assessment guide by the National Parks and Wildlife Service which had specific procedures for the 8 part test in regard to the Southern Brown Bandicoot. He said with all the other surveys he had done in the area plus the work on the site and the work of other fauna specialists he was satisfied the requirements of the 8 part test were met and there was no need for a Species Impact Statement.

139 . He agreed trapping had not been done for 4 to 5 consecutive nights on the site. He agreed the Southern Brown Bandicoot had been trapped in the vicinity. He said this site, the 0.98 ha to be used, was not seen by the bandicoot as habitat. There had been extensive trapping on contiguous land to the site that was habitat, and that gave compliance with the guidelines in his opinion.

140 . In his second 8 part test Exhibit S he said the regional distribution of the bandicoot was across a Sydney Bioregion of thousands of hectares of potential habitat. The loss of 0.98 ha was of no consequence. Then, he agreed that the Southern Brown Bandicoot did not occupy most of the potential habitat in the bioregion. But it was known to occupy areas contiguous and possibly on this site, and it was listed at the highest level of protection due to its being threatened with extinction.

141 . Dr Robertson said foxes, cats and dogs were the biggest threat of extinction, not the 0.98 ha of this site to be modified.

142 . Turning back to tetratheca , he was asked how he got to 707 plants on the Red Hill reserve and the subject site combined. He said he took the area of the 12 cells or quadrats out of the 20 in the survey south of the house that had tetratheca in them. He used that density on the areas he had found on the site and reserve as shown in Table 1 page 8.1 Exhibit S.

143 . He has shown 521 plants in the reserve. He was asked to show his field notes to council staff. This led to the additional joint report in Exhibit 28.

144 . Dr Robertson was taken to the NPWS guide on the 8 part test for the Red Crowned Toadlet in Exhibit 26. He agreed it was relevant. He said the best time to survey for them was just after rain when they could be heard without rain noise or thunder etc. Without the rain and at other favourable times, such as at dusk, only some toadlets would call out. He disagreed, that his survey was not at the best time or was not adequate. He disagreed that habitat was present on-site saying an inspection of the rock around the edge of the plateau showed there were few crevices and seepage lines that they needed for habitat. The site was marginal. There was much better habitat on the Red Hill reserve and the Red Crowned Toadlet had been found there.

145 . He disagreed that the watercourse in the saddle between Portion 1092 and Red Hill was a feeder creek as in Exhibit 26. It was an ephemeral erosion drain fed by tracks in the bush created by walkers and trail bikers.

146 . Although the vegetation types suited to the toadlet were on-site, he said they were not of the density, nor accompanied by bush rock that would give protection and nesting places for the toadlet.

147 . He agreed there were some eroded seepage joints on the Southern rock ledges of the plateau with ferns that the toadlet liked. There were also some along the Crown road access drive from Chainage -7 to Chainage - 54 on Exhibit T. There were also a few seepage joints on the West side of the plateau rocks. It was put to him there was clay content in the soils on the plateau that would hold water and release it progressively to maintain the seepage. He said there was very little clay content. It was mainly shallow sandy soils.

148 . Dr Robertson said toadlet did not like areas where there was run-off from concrete, bitumen, or house lots, weeds, grasses, domestic pet droppings, or walking tracks.

149 . The Conacher Travers survey of the 16th and 17th November 1999 found no toadlets.

150 . It was put to him the prime condition for observations after good rain was not met, and part of the survey was at night, not at dusk. Only 9.4 mm of rain fell on the 16th before the survey.

151 . He relied on 69 mm falling on 9th November so that it would still be providing the seepage activity needed with the top-up of the 9.4 mm of the 16th. In reply rainfall records showed considerable storms in the four weeks before the 16th. He also relied on other surveys in the vicinity to conclude that the requirements of the 8 part test were fulfilled. He was satisfied the site was not habitat.

152 . It was put to him that if the toadlet was present on-site, with the construction of the house, the modified OPZ and IPZ, human and possibly pet occupation of the site, the run-off and seepage would change and any toadlets would die. He agreed this would happen if the toadlet was on the site.

153 . He agreed if any of the four endangered species thought to use the site were present and were likely to have significant impacts, then a Species Impact Statement was needed.

154 . He maintained even if individuals of any specie were lost, it was unlikely to affect the viability of any local population because the site was so marginal, it could only be a minor component of any habitat.

155 . On bushfire access to and from the site, Dr Robertson believed only one access had to be legally usable. There was a need for a second access but it could be for emergency use only.

156 . If the Crown road driveway remained not a public road, a 1 m shoulder 4 m carriageway 1 m shoulder construction was adequate he said. If it became public a 1 m by 8 m by 1 m construction was needed.

157 . He agreed the slashed areas of the OPZ and IPZ were unsuitable for tetratheca. He agreed the clumps of vegetation which the tetratheca could be kept in, would need pruning about every five years. Woody vegetation would have to be pruned manually, or the clump burnt back.

158 . He thought trees on the plateau would grow to 7 m and trees below the plateau would go to 10 m plus. They would be watered in dry periods. He agreed some may be blown over, but in rocky conditions roots grew down into crevices that gave good anchorage, and most trees would survive.

159 . He agreed some of the tetratheca would die even though they were kept in clumps in the OPZ and IPZ.

160 . He relied on the Bushland Management Plan in the draft conditions to keep most of them, and possibly generate reproduction both during construction of the house and thereafter. He did not think any potential loss, especially if there was no management plan, would constitute a significant effect in terms of the 8 part test. Although there would be a proportional diminution of the genetic pool

161 . He agreed the colony of tetratheca on and near the site was a significant local population in Warringah and in the Sydney Bioregion.

162 . He did not agree the Brown study in Exhibit 21 required a line of access between parts of the local population for pollination. He agreed it did need gene flow between the clumps of tetratheca to maintain the genetic pool. He believed the site was on the edge of the larger concentrations of tetratheca to the southwest of the house and on the Red Hill reserve, he had found it along a 2 km stretch along the ridge from the site northwards. Loss of the individuals on-site were not a significant or threatening effect in his opinion.

Conclusions
163 . In considering the evidence and submissions the Court has come to the following conclusions:

164 . Of relevance in cl 12 of the LEP, a consent authority is to be satisfied the development is consistent with the principles in Pt 4 of the LEP, and will comply with the requirements of Pts 2 and 3, and the development standards set out in the Locality Statement (in this case for the B2 Oxford Falls Valley). And, being Category 2 development, the authority must be satisfied it is consistent with the desired future character.

165 . Part 2 has a density standard in cl 20(2) that works with the Density provisions in the B2 Locality Statement. Although the respondent put that this dwelling should not be approved when there is an existing consent for another on the same “existing parcel”, the Court is satisfied that the surrender of the existing consent in any deferred commencement decision would enable a valid consent to issue for this proposal. In that event, the development standards in the B2 Locality Statement would otherwise be complied with.

166 . Part 4 arose in regard to cl 58 Protection of Existing Flora and that shall be determined by the decision on the endangered species tetratheca glandulosa that is on site.

167 . Part 3 has no matter for dispute in this case.

The present character of the Oxford Fall Valley locality will remain unchanged except in circumstances specifically addressed as follows.
Future development will be limited to new houses conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the -Wakehurst Parkway.
The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.

169 . The parties agreed the proposal was low intensity in using about 0.98 ha of a 2.7 ha lot in a 10 ha residue of the “existing parcel”. The Court was not taken to the other lots in the existing parcel and assumes they had no bearing on the dispute.

170 . The parties disagreed on impact of the proposal. The respondent believed in terms of the endangered flora and fauna the impact would be high, the applicant said low impact.

171 . There is the question of the house being proposed on a ridge and whether or not the site is a ridge top and whether or not buildings are prohibited on a ridge top.

172 . The applicant said the site whilst being on a ridge was not a ridge top, and that instead of the sentence ending at the word “ridgetops”, it qualified that clause by continuing “or in places that will disrupt the skyline, when viewed from Narrabeen Lagoon and the Wakehurst Parkway.

173 . The applicant put that the site was not seen from the Narrabeen Lagoon and the only place it might be seen from the parkway was near Dreadnought Road and even Dr Lamb agreed from there it was likely the existing vegetation would screen the house.

174 . The Court cannot put the respondent’s narrow qualification on the clause “no new development on ridgetops”, it is severable from the rest of the sentence by the word “or”. A ridgetop is not a defined term in the Concise Macquarie or The Shorter Oxford dictionaries, it is a composite.

175 . In both dictionaries, a ridge has a common definition as “a long, narrow elevation of land, or a chain of hills or mountains” and a “top” has a common definition as “the highest point or part of anything”.

176 . One could glean from the council’s vegetation map in Exhibit 24 that the term “Sydney Sandstone Ridgetop Woodland” does not confine the woodland to say, the peak of Red Hill only. The woodland extends along the ridge and other ridges, and in that sense a “ridge top” is the whole length of the ridge. But, in the locality statement such an interpretation is not open. The ordinary meaning of the composite word must infer the highest point of the ridge, that is Red Hill or another higher point along its length.

177 . In this dispute, the key element of the future character statement is “The natural landscape … and vegetation will be protected and, where possible, enhanced”.

178 . This consideration has particular weight given s 5A of the Environmental Planning and Assessment Act 1979 and the presence of tetratheca glandulosa on the house site and adjacent, and the possible presence of the Southern Brown Bandicoot and the Red Crowned Toadlet, all threatened species, and their habitats.

179 . I shall not include the Eastern Pygmy Possum as the respondent did not press it during the hearing.

180 . The proposed access to the site is also not addressed for reasons mentioned in the body of this judgment.

181 . Many of the differences of expert opinion in regard to tetratheca glandulosa arose from the paucity of knowledge about it in the scientific community.

182 . The two research studies in Exhibit X and Exhibit 21 illustrated this, the former in relation to tetratheca juncea and the latter in relation to tetratheca glandulosa .

No pollinator has been definitely identified although native bees are one of the suspects;
If it is bees then the pollen is carried between plants by the beat of the wings dislodging the pollen and it being carried by wind or on the bees.
Seed banks cannot be relied upon as a guarantee of viability as they have a short life and fast germination. Given an unusual series of events such as regular bushfires or disturbance without favourable conditions for growth, regeneration potential can be exhausted. The non-interruption of pollination in that scenario is most important.
The plants may be clonal or they may be variegated. The need for continued linkages between plant groups in a colony is of key importance to gene flow.
To persist on a site, conditions need to be appropriate to enable competition with other flora species, to interact with pollinators and mycorrhiza, tolerate herbivores and get sufficient resources to survive seasonal fluctuations. Subtle environmental changes could make the plants more susceptible to disease or competition.
Limited information is available on its ability to persist if habitat is changed through differences in soil, moisture regime, fertility, light regime or soil physical conditions. These parameters are also likely to be changed if the flora and fauna composition of the habitat is changed.

tetratheca

Environmental Planning and Assessment Act 1979

tetratheca

1. The appeal is dismissed.

2. The exhibits are returned to the parties except Exhibits 9, 10, 11, 12, 13, 14, 18, 19, 20, 23, 25, 26, 28, A, B, C, D, F, J, K, N, Q, S and T.

K G Hoffman

Commissioner

of the Court

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Citations

Vigor Master Pty Ltd v Warringah Council [2004] NSWLEC 162

Most Recent Citation

Vigor Master Pty Limited v Warringah Council (No 2 ) [2005] NSWLEC 255

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Vigor Master Pty Limited v Warringah Council (No 2 ) [2005] NSWLEC 255

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CITATION:	Vigor Master Pty Ltd v Warringah Council [2004] NSWLEC 162
PARTIES:	APPLICANT Vigor Master Pty Ltd RESPONDENT Warringah Council
FILE NUMBER(S):	11177 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Threatened species - need for a species Impact Statement - access - desired future character for B2 Oxford Falls Valley Locality - bushfire protection - visual impact
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Warringah Local Environmental Plan 2000
CASES CITED:
DATES OF HEARING:	24-27/02/2004 and 04/03/2004
DATE OF JUDGMENT:	06/21/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr T F Robertson, barrister SOLICITORS Woolf Associates RESPONDENT Mr P W Larkin, barrister SOLICITORS Wilshire Webb