Werry v Kiama Municipal Council

[2022] NSWLEC 1230

Land and Environment Court

New South Wales

Medium Neutral Citation:

Werry v Kiama Municipal Council [2022] NSWLEC 1230

Hearing dates:

7-9 March 2022

Date of orders:

05 MAY 2022

Decision date:

05 May 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is dismissed.
(2) Development Application 10.2021.67.1, which seeks the grant of development consent for seniors housing and associated development at 2 Caliope Street Kiama is refused.

(3) The exhibits are returned with the exception of Exhibits 1, 6, A, B, C, E and K which are retained.

Catchwords:

DEVELOPMENT APPLICATION – land subdivision - community titles subdivision – seniors living development – bushfire risk – ecological concerns – site compatibility certificate

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 7
Conveyancing Act 1919, s88B
Environmental Planning and Assessment Act 1979, ss 4.46, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55
Environment Protection and Biodiversity Conservation Act 2016 (CTH)
Kiama Local Environmental Plan 2011, cll 4.1, 4.1AA, 6.4
Land and Environment Court Act 1979, s39
Rural Fires Act 1997 s100B
State Environmental Planning Policy (Housing) 2021

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 cl 5, 14, 15, 21, 25, 40, 42, 43

Texts Cited:

Land and Environment Court, COVID-19 Pandemic Arrangements Policy

Planning for Bushfire Protection 2019

NSW Rural Fire Service Fire Trail Standards

NSW Rural Fire Service Fire Trail Design Construction and Maintenance Manual

Category:

Principal judgment

Parties:

Graham Werry (Applicant)
Kiama Municipal Council (Respondent)

Representation:

Counsel:
G Farland and T Poisel (Applicant)
A Pearman (Respondent)

Solicitors:
VMV Lawyers (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2021/300482

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Kiama Municipal Council (Council) of Development Application 10.2021.67.1, which seeks development consent for seniors housing and associated development at 2 Caliope Street Kiama, legally identified as Lot 17 in DP 1210621 (site).

Proposal

2. The applicant’s closing submissions filed 16 March 2022 (ACS) provides a useful outline of the development application before the Court, as amended. I generally rely on it for my outline of the proposal, as follows:

1. Subdivision of the site into two Torrens Title allotments. The lot upon which development is proposed would be some 2.22ha. The residual lot would be some 3.39ha in area (below I refer to this as the procedural subdivision).

2. Community title subdivision of the development lot to create twelve private residential lots ranging in area from some 523m² to 2,476m² and one community property lot.

3. Construction of twelve single storey serviced self-care dwellings.

4. Construction of internal road accessed from Caliope Street.

5. Construction of stormwater infrastructure and civil works including a 1.5m shared path, driveway crossovers to the private roadway and a new 2m wide footpath along the southern side of Calliope Street.

6. Associated earthworks and vegetation removal.

3. It will be seen that, as well, there are various details either proposed by the applicant or required by way of agreed conditions of consent (without prejudice) as to the management of both the development site and some parts of the residual land.

4. I will also note here that the proposal benefits from a Site Compatibility Certificate (SCC) issued by the Southern Regional Planning Panel under cl 25(4) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors)[1] . The issued SCC reflects a significantly larger development than now proposed. In seeking to address ecological and bushfire management concerns, the proposal has reduced from 21 dwellings to the now proposed 12 dwellings.

   1. On 26 November 2021, SEPP Seniors was repealed by State Environmental Planning Policy (Housing) 2021 (Housing SEPP). Despite this, and as agreed by the parties, SEPP Seniors continues to apply to the proposal by operation of the savings and transitional provisions in Sch 7A to the Housing SEPP.

Site and setting

5. I rely on Council’s Amended Statement of Facts and Contentions filed 11 February 2022 (Ex 1), and the applicant’s Statement of Facts and Contentions in Reply filed 21 February 2022 (Ex C) for much of the factual material in this section.

6. The site is on the western side of the Princes Highway some 1.4km southwest of the Kiama Town Centre. The site is generally rectangular in shape and has a total area of some 5.7ha. It has frontages of 131.7m to Old Saddleback Road (western boundary) and approximately 221m frontage to Caliope Street (northern boundary).

7. The site is vegetated and slopes from the north west corner to the south east corner with a fall of approximately 30m. The site drains to the natural water course located towards the site’s south eastern corner. As indicated above, the area proposed for development comprises significantly less than half the site. The area of the site proposed for development has a history of use for farming purposes and is currently vacant. A wooded area, not within the confines of the intended development area, runs diagonally through the site and beyond.

8. The site is mostly zoned part RU2 Rural Landscape under to the Kiama Local Environmental Plan 2011 (KLEP), with a corridor of C2 Environmental Conservation zoned land, somewhat coincident with the “wooded area” described above, running through the middle of the site. The intended development area can be thought of as to the west of the C2 zoned corridor.

9. The site is located at the edge of some of Kiama’s urban lands, with land north of Caliope Street being zoned R2 Low Density Residential under KLEP and developed for residential purposes over recent years. A seniors living development, comprising 31 independent living units known as the Seaview Estate is located across Old Saddleback Road, to the west of the site, on RU2 zoned land. Land to the immediate south of the site is mostly zoned RU2, and generally used for rural purposes, accommodating some isolated rural buildings. An exception is the relatively small-scale extension of the C2 zoned corridor into the land to the immediate south of the site.

Issues

10. Ex 1 nominates twelve contentions seen by Council as reasons for the refusal of the application. For my purposes, the contentions can be grouped into four issues, albeit with a little overlap. I introduce the issues below and, in doing so, key statutory factors of concern to the evaluation of the application are also outlined.

Prohibited development

11. Council contends that there is no power to permit subdivision of the site as the proposal does not meet the minimum subdivision lot size control under cl 4.1 of KLEP, or the minimum subdivision lot size for community titles schemes under cl 4.1AA of KLEP. The applicant argues that, as a matter of statutory construction, cll 4.1 and 4.1AA of KLEP are inconsistent with cll 14, 15, 21 and/or 40(2) of SEPP Seniors. In the circumstances, and mindful particularly of cl 5(3) of SEPP Seniors, SEPP Seniors would prevail in the event of such an inconsistency, according to the applicant, and as such both the proposed procedural and community titles subdivisions are permitted with consent.

Does not meet requirements of “serviced self-care housing”

12. Council contends the proposal does not meet requirements of “serviced self-care housing” under SEPP Seniors. Clause 42 of SEPP Seniors provides that a consent authority must not consent to a proposal of this kind unless it is satisfied, by written evidence, that residents of the proposed development would have reasonable access to home delivered meals, personal care and home nursing, and assistance with housework. The applicant proposes that these services will be provided under contract by providers based off site, who will provide the services to residents on the site. Similarly, cl 43 of SEPP Seniors establishes a requirement for a consent authority to be satisfied that a bus capable of carrying at least 10 passengers will be provided to the residents of the proposed development, that will drop off and pick up passengers at a local centre twice a day (at appointed hours). The applicant proposes that these services would be provided through a contracted agreement with a local bus rental company.

Ecological concerns

13. Two communities of native vegetation within the site, Illawarra Subtropical Rainforest and Zieria granulate (Zieria), have a recognised status in regard to environmental protection legislation. The position is captured in the Vegetation Management Plan (VMP) for the site prepared by Cumberland Ecology under the direction of Dr Robertson (ecological expert for the applicant) and filed on 18 March 2022 (VMP p 7):

“The subject property comprises native vegetation that conforms to the threatened ecological community (TEC) Illawarra Subtropical Rainforest, which is listed as an endangered ecological community (EEC) under the New South Wales (NSW) Biodiversity Conservation Act 2016 (BC Act) and a critically endangered ecological community (CEEC) under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The subject property also supports a local population of Zieria granulata (Illawarra Zieria), which is listed as an endangered species under the BC Act and EPBC Act.”

14. Clause 6.4 of the KLEP provides that:

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

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

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

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

15. Provisions at Pt 7 of the Biodiversity Conservation Act 2016 also apply. The particular test of interest is whether the proposed development is likely to significantly affect threatened species or ecological communities, or their habitats.

16. There is a relationship between this issue and bushfire-related concerns introduced below. Briefly here, one of the factors defining the eastern edge of the development site was the need for a bushfire asset protection zone (APZ) which would be located between housing and significant bushfire fuel loads. The APZ would be subject to a defined regime for the management of vegetation within it (generally aimed at keeping fire fuel loads down). The Zieria is also located near this eastern edge of the development site. As I understand it, the APZ requirements relating to managing fuel loads would compete with any ambitions to avoid or manage impacts on any Zieria within an APZ. Relevantly, the SCC adopted as a requirement:

“the amendment of the APZ on the eastern boundary of the development area such that the identified Zieria Granulata plants are excluded.”

17. Among other things, the VMP identified what was termed a Zieria Management Area (ZMA). A key purpose of the VMP was to guide the management of the Zieria within the ZMA to ensure the survival of the population in the long term (VMP p 7). Despite the effort of the ecological experts to expand the ZMA during the course of the hearing, Council contends, supported by its ecological expert Mr Skeleton, that the proposal, as amended, would unreasonably impact upon endangered Zieria. It was the evidence of Dr Robertson that no significant impact is likely. There is also disagreement on whether this represents an important inconsistency with the SCC. I note that I understood that the Illawarra Subtropical Rainforest concerns of Council were addressed through work of the ecological experts, manifest in the finalised of the VMP.

Bushfire-related concerns

18. The parties agreed that the proposal constitutes “integrated development” under s 4.46 of the EPA Act because it triggers the requirement for a bushfire safety authority (BFS Authority) under s 100B of the Rural Fires Act 1997 (RF Act). A BFS Authority is required because the proposal is for the purpose of “seniors housing” (within the meaning of SEPP Seniors), being a “special fire protection purpose” under s 100B(6) of the RF Act. A BFS Authority has not been issued for the proposal.

19. There has been contact with the NSW Rural Fire Service (RFS) in regard to the proposal and the matter of the BFS Authority. Correspondence from the RFS dated 2 September 2021 (Ex 2 p 543-4) raised six matters relating to sufficiency of information and related risk assessment. Council contends that three of these matters, considered in more detail below, remain unresolved.

20. There is no dispute that under s 39(6) of the Land and Environment Court Act 1979 the Court has power to determine an appeal whether or not the BFS Authority has been issued. Nonetheless, due attention is of course required to bushfire risk.

21. Ultimately, I am not satisfied that the proposal satisfactorily addresses bushfire-related concerns. The bulk of the rest of the judgement is concerned with this topic which I see as a threshold issue for the proposal and determinative in this instance.

Bushfire-related concerns

Introduction

22. There are some background points which warrant mention in regard to this topic. First is to note the advice of the bushfire experts that the APZ to the east of the proposed residences has been determined on the basis of what is known as Short Fire Run (SFR) modelling. The bushfire experts advise (Ex 9 pars 11-12):

“SFR modelling is applied to small and narrow parcels of vegetation which have less opportunity to support a fully developed bushfire because of their limited size.

This specialist modelling can be utilised to better reflect the potential bushfire impact from these lower risk hazards.”

23. According to the experts, the RFS has accepted the use of SFR modelling for the site in recognition of the risk profile. The current SFR modelling has resulted in a reduction of the prescriptive minimum required APZ width from >81m to 55m (ibid).

24. Council submits there are three matters which warrant the attention of the Court as consideration is given to whether the grant of consent is warranted in the absence of a BFS Authority. These are:

1. The proposed fire trail

2. Risk posed by vegetation on private land to the south of the site

3. Risk posed by vegetation within an unmade public road “reservation” to the west of the site.

25. These issues each were points of direct attention in the hearing.

Proposed fire trail

APZ – Zieria inter-relationship

26. I understand that fire trails are required to assist firefighters in operational situations and for maintenance purposes. The RFS provided the following advice in regard to the (then) proposed “service trail” for the proposal which I believe to be a term interchangeable with the term “fire trail”, the more commonly used term by all concerned in the hearing and by me in this judgment (Ex 2 p 543):

“The proposal seeks to retain the Zieria Granulata within the Inner Protection Area (IPA) of the required Asset Protection Zone (APZ) and construct a 4-metre wide trafficable service trail at the hazard interface. The IPA is a highly modified, fuel reduced area of vegetation. Council must confirm the required APZ and proposed service trail through land containing threatened species is acceptable and not inconsistent with the specified requirements detailed in the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Site Compatibility Certificate. The required APZ and proposed trial will need to be managed to a satisfactory standard for the life of the development”

27. There seems to me to be three criteria raised in this paragraph of advice from the RFS. First is that “Council must confirm the required APZ and proposed service trail through land containing threatened species is acceptable”. Second is that “Council must confirm the required APZ and proposed service trail through land containing threatened species is not inconsistent with the specified requirements … (of the) Site Compatibility Certificate”. Third is that “the required APZ and proposed trial will need to be managed to a satisfactory standard for the life of the development”.

28. I can note here that my attention in this topic of bushfire risk is less concerned with the second criterion, as I describe above. This is essentially a legal question not warranting consideration here given my otherwise findings in this matter. I appreciate that the RFS would be concerned about the potentially conflicting interests at play (protection of Zieria vs keeping fuel loads down). But this is adequately addressed in the first criterion.

29. The details of the construction and location of the fire trail were subject to change, both prior to and during the course of the hearing. This was as a consequence of the conferral of the bushfire and ecological experts in the preparation of their combined joint report filed prior to the hearing (Ex 5) and then again after further conferral of the experts during the course of the hearing (a supplementary report from the bushfire experts was tendered into evidence as Ex 9, supplementary reports from the ecology experts were tendered into evidence as Ex 10 and Ex 11). That is to say, and as introduced above at [17], after the site inspection the ecological experts were instructed to confer to seek to further optimise the protection of Zieria and Illawarra Subtropical Rainforest based on some more recent data collection. The fire experts also undertook further assessment to confirm that in their opinion the exclusion of certain additional lands from the APZ (and into the VMP) was not unreasonable in regard to bushfire hazard (Ex 9 pars 17-24).

30. The essence of the proposal put to me on behalf of the applicant provided for a revised delineation of the APZ line, with the fire trail within the APZ and outside and to the west of the area covered by the VMP including, in particular, the ZMA which would be permanently fenced (VMP p 20). While Mr Skelton agreed that these changes were ecologically beneficial (Ex 11 p 1), I mention here that Mr Skelton’s remaining ecological concerns, identified above at [17], do relate to this modified proposal.

31. Certain particulars of the original joint conferencing between the bushfire and ecological experts in relation to the fire trail, and its output admitted into evidence as Ex 5, need to be highlighted here. M Jones and S McMonnies were bushfire experts engaged to give evidence to the hearing on this topic by the applicant and Council respectively. A long quote from the joint report from bushfire and ecological experts in relation to the fire trail follows (Ex 5 p 16-17):

Topic of Joint discussion with all 4 Experts

“135. The location of the fire trail and the potential downslope impacts during construction and ongoing

136. The experts discussed what was required for a fire trail and whether it would impact Zieria. It was agreed that the fire trail could be simply a mown track rather than an excavated and engineered track that had to be dug into the side of the hill. [Mr Jones] pointed out that the track would be infrequently used, if at all used, and that it was only required to allow access by fire trucks.

137. The ecological experts discussed downslope impacts and it was agreed that if the track was only an infrequently used mown track (virtually indistinguishable from the other parts of the APZ) then there was little likelihood of runoff or other detrimental edge effects from either the construction or operation of the fire trail.

[Comments from Dr Robertson follow]

138. If an infrequently used grassy “track” is created as discussed with Matt Jones and now proposed in the draft VMP, then I believe that there will be negligible impacts on downslope vegetation, including the Zieria. I also observe that the Zieria have apparently survived for many years in old farmlands without active management, where cattle grazing occurred. I believe that during periods of heavy cattle grazing there would historically been considerable uncontrolled runoff and erosion into what is now being referred to as the Zieria management area.

139. If the “track” is a grassy mown area, the runoff from it would be far less than would have occurred when the site was an active farm.

[Comments from Mr Skelton follow]

140. I note that there is differing track locations shown on the submitted plans before the Court and the new plan by the Applicants fire consultant [Mr Jones] and the Applicants Vegetation Management Plan by [Dr Robertson]. The fire trail should be at least 5m from the Zieria population and not go through any mapped areas of Illawarra Sub-tropical Rainforest Endangered Ecological Community as shown on Figure 5 of the flora and fauna assessment).

141. If the grassy “track” design with no drainage structures is not possible then the impact of construction and use will need to be assessed as I have not included this additional impact in my Tests of Significance or avoid and minimise assessment. My main areas of concern with a excavated track would be the during construction and final width including batters and drains and the resulting proximity to the Zieria and rainforest areas, and indirect impacts caused by sediment, edge effects and spread of disease and weeds.

[Comments from Mr Jones follow]

142. Agreed – given the practical and infrequent use of the trail for strategic or defensive firefighting purposes, a mown and delineated access route which avoids any Zieria occurrences or rainforest vegetation is all that would be reasonably required.

[Comments from Mr McMonnies follow]

143. I acknowledge that a grass surface is feasible for the fire trail, however it would be critical to have a clear delineation (e.g. markers) along the length of the fire trail. The trail must also comply with all relevant requirements of the NSW RFS publication ‘NSW RFS Fire Trail Standards’ and ‘NSW Rural Fire Service Fire Trail Design Construction and Maintenance Manual’, inclusive of capacity and drainage.

144. Based on the filed material it is unclear as to the extent of drainage works necessary (if any) and if so type and location.”

32. I can conclude from this exchange amongst the experts, prior to the commencement of the hearing, that the agreed path (so to speak) as to doing the best at reconciling the potential conflict between the fire trail (and any associated drainage, batters and other edge effects) and the adjacent ZMA was to essentially adopt and mark out (and regularly mow) an alignment for the fire trail along the existing natural ground level. Mr McMonnies required that the track “comply with all relevant requirements of the NSW RFS publication ‘NSW RFS Fire Trail Standards’ and ‘NSW Rural Fire Service Fire Trail Design Construction and Maintenance Manual’ (ibid par 143)”. These standards referred to by Mr McMonnies formed part of Council’s supplementary bundle (Ex 3).

Whether proposed fire trail meets standards

33. In Attachment C to the supplementary bushfire expert report (Ex 9), Mr Jones provided commentary in regard to the compliance of the proposed trail with the NSW RFS Fire Trail Standards. In Table 1 below, “performance criteria” and “acceptable solutions” nominated in the NSW RFS Fire Trail Standards (provided at Ex 3 p 100 and as quoted by Mr Jones) are listed in regard to two of the seven “requirements” relating to the applicable “Category 1 Fire Trail” requirements. Mr Jones’ “comment/assessment” (as per Ex 9 Attachment C), with respect to the requirements, is provided in the right hand column.

Table 1 – Excerpt from “Category 1 Fire Trail Requirements” as nominated in NSW RFS Fire Trail Standards (Exhibit 3 p 100) – comment/assessment at right hand column provided by Mr Jones and sourced from Exhibit 9 Attachment C)

Requirement	Performance criteria	Acceptable solutions	Comment/Assessment
…	…
2. Capacity	The construction and formation of the trail is trafficable under all weather conditions (other than due to flood, storm surge or snowfall) for a Category 1 firefighting vehicle.	Trail surfaces and crossing structures are capable of carrying vehicles with a gross vehicle mass of 15 tonnes and an axle load of 9 tonnes.	The current and available area for vehicle access along the identified fire trail route would reasonably facilitate the passage of a Standard Category 1 firefighting vehicle under normal / dry conditions.
3. Grade and crossfall	The vertical profile of the trail provides for traction and safe working angle within the physical operational capability of a Category 1 firefighting vehicle. Note: This includes design that does not impede the undercarriage of a vehicle.	The maximum grade of a trail is not more than 15 degrees. The crossfall of the trail surface is not more than 6 degrees. Drainage structures, feature crossings, or other significant changes in the grade of the trail shall be in accordance with the NSW RFS Fire Trail Design, Construction and Maintenance Manual.	The current and available area for vehicle access along the identified fire trail route does not exceed 10 degrees. Cross slope estimates are acknowledged to marginally exceed 6 degrees, but given an entirely cleared and unobstructed route, the operation and navigation of a full loaded fire tanker across the site should be easily achieved by a competent driver. Drainage structures, feature crossings or other significant changes in trail grade are not considered warranted given the intended naturally grassed surface and likely infrequent use of the trail for emergency purposes.
…	…

34. In Ex 9, and while generally supporting the revised fire trail, Mr McMonnies indicated the material made available was insufficient in regard to evaluating the proposed fire trail against the relevant standards. He also indicated he “would also require input on some compliance matters (e.g. capacity, drainage) from a suitably qualified civil engineer”.

35. In oral evidence, Mr Jones was cross examined by Council on his assessment of the acceptability of the proposed fire trail in terms of both “capacity” and “grade/crossfall” (ie matters at Rows 2 and 3 in Table 1). In regard to the capacity of the proposed trail, Council also took Mr Jones to the NSW Rural Fire Service Fire Trail Design Construction and Maintenance Manual, which, among other things, provided pointers in regard to soil erodibility. Mr Jones agreed that he did not have engineering expertise or expertise in soil science. He relied on his practical experience as a qualified driver of a fire tanker and his experience driving vehicles on the site itself on many occasions. Mr Jones also seemed to give regard to his opinion that the fire trail would constitute “grassed surface on a few inches of soil sitting on basalt rock” (Transcript 9/3/2022 p 9 line 48), although no further evidence was provided with respect to these site characteristics.

36. In oral evidence, Mr Jones was also examined on his commentary in Row 3 of Table 1 that “(fire trail crossfall) estimates are acknowledged to marginally exceed 6 degrees”. Mr Jones then indicated orally, that with the re-alignment of the fire trail and new material provided to him (“a fresh plan here from the architect’s surveyors”), that in fact now “(the) acceptable solution is achieved” (Transcript 9/3/2022 p 13 lines 23-26). I understood this oral evidence to be that certain material provided to Mr Jones had indicated to him that the fire trail crossfall as now proposed would not now exceed the 6 degrees figure suggested as an acceptable solution to the crossfall requirement of Table 1 Row 3. I advised the applicant that it would assist the Court if this new material, as provided to Mr Jones, could be made available to the Court.

37. Some little time afterwards, the applicant assisted the Court by producing a drawing titled “Bushfire Trail Gradients” and dated 8 March 2022 which, without objection, was admitted into evidence (Ex K). Ex K showed the fire trail alignment on 0.5m contours and also included cross-sections at intervals along the trail.

38. When questioned on this document, Mr Jones departed from his previous oral evidence and returned to his previous written evidence (Ex 9 Attachment C and referenced at Row 3 to Table 1 above) to orally describe the fire trail cross fall as presented in Ex K as follows (Transcript 9/3/2022 p 100 lines 38-43):

“Marginally, it’s marginally greater than 6 degrees here and there, but, again, a performance-based assessment and my opinion of the - given it’s an open paddock, there’s no overhead obstructions, there’s just - you’re not near the edge of any precipice.  Personally, having driven it so many times myself over the last few years, it with easily achieve a performance criteria for extra safe access for a fire truck.”

39. The graphic imagery in Ex K was shared between the participants via individual monitors (under the MS Teams platform). There was then a zooming-in of some of the cross-sectional material which was shared under the MS Teams platform, as the imagery was quite small in the A3 versions of hard copy material before us. I reproduce two of the cross sections below in Figure 1, at a scale which can be discerned. The cross sections indicate both the grade line of “existing natural ground level” and a 6 degree line (in green).

40. I also note that there is arrowed text in the cross-section drawings provided in Ex K which indicates “proposed bushfire track”, which seems to align with the 6 degree line, as far as the steepest cross sections are concerned. I do not place any weight on this particular text. Among other things, it is clear from the agreed evidence of all four experts that the intent of the fire trail is that it not involve cut and fill batters, but that, it comprise a marked out area along the existing natural ground level (see [31]). I make further remarks on this point below (see [63]-[64]).

41. Figure 1 provides a representation of what was titled “Bushfire Cross Section 2” on the left hand side of the figure, and a representation of what was titled “Bushfire Cross Section 3” on the right hand side of the figure. These two fire trail cross sections seemed to me to be the steepest of those indicated in Ex K.

Figure 1 - Graphical representation of fire trail cross sections (source: Ex X – representation of “Bushfire Cross Section2” is on the left hand side of the figure and representation of “Bushfire Cross Section3” is on the right hand side of the figure)

42. When the zoomed-in version of Bushfire Cross Section 2 was shared on monitors, and Mr McMonnies’ opinion was sought on the crossfall of natural ground level in comparison to the 6 degree crossfall standard, Mr McMonnies indicated that “it looks to be almost double that 6 degrees, based on the figure that’s shown before us”. Mr Jones said “No, I wouldn’t say double. I would have it around, maybe 8, 9 degrees, at that specific point. That’s about the worst it gets” (Transcript 9/3/2022 p 101 line 40-48).

Consideration

43. While I note the oral interpretive evidence from the bushfire experts, based on Ex K, on the cross-sectional angle of the fire trail as it ran along the natural ground line, and confirmed in the contour lines shown otherwise in Ex K, the material presented in evidence suggested to me that existing natural ground level represented in Bushfire Cross Section 2 was in excess of double the angle demarked as 6 degrees in green. Therefore, my finding is that the fire trail at this point would have a cross fall in excess of 12 degrees. The natural ground line represented in Bushfire Cross Section 3 was, in my opinion about double the angle demarked as 6 degrees in green. Therefore, the fire trail cross section at this point would be about 12 degrees. There was over 50m linear separation between Bushfire Cross Sections 2 and 3, scaling off other dimensions shown in Ex K. As proposed, a significant portion of the fire trail would have cross falls of double the 6 degrees “acceptable solution” crossfall standard for Category 1 Fire Trails as indicated in the NSW RFS Fire Trail Standards (see Table 1 above). In drawing my own conclusions on this evidence, as indicated, I have had regard to the oral evidence of the bushfire experts but also used my own expertise in interpreting land information (including topographical contour plans and cross-sectional material as provided in Ex K) from my experience as a town planner and earlier career as a land surveyor.

44. Mr Jones’ evidence that a performance solution is acceptable in regard to either the crossfall requirement, or the capacity requirement of Table 1 in the NSW RFS Fire Trail Standards was unconvincing. Mr Jones’ evidence relied markedly on his own presentation of his experience as a fire fighter and fire tanker driver to suggest the capacity for the fire trail was adequate and compliance with the nominated acceptable solutions for cross fall was not required in this instance. On the other hand, Mr McMonnies’ evidence was of considerable assistance to the Court (also a member of the RFS as a firefighter and “rural fire driver accredited” according to his evidence (Transcript 9/3/2022 p 14 line 41) on these matters). He provided a consistent view that additional credible technical evidence was needed to demonstrate the fire trail’s carrying capacity and geometrical particulars, and consistency with performance requirements and standards. Mr McMonnies acknowledged that when firefighting he would employ what he termed “dynamic risk assessment” in fire events, which would involve traversing across properties in conditions which I understood would not align with the above-referenced standards. However, Mr McMonnies believed that in the planning for new development there was an obligation to provide more certainty in relation to fire protection services, which was provided through compliance with the nominated standards.

Other bushfire-related concerns

45. The other two bushfire-related matters were essentially concerned with the question of whether APZ areas were, or might in some time in the future, be located on land other than the site. The RFS guideline Planning for Bushfire Protection 2019 (Ex 2 Tab 7) indicates at Section 3.2.5:

“APZs on adjoining land are not encouraged. Where an APZ is proposed on adjoining land, a guarantee must be provided that the land will be managed in perpetuity. In order to achieve this, the land should have an easement under the Conveyancing Act 1919 s.88B to ensure:

- surety of APZ and the correct management prescriptions; and

- that management occurs in a binding legal agreement in perpetuity.

These situations shall be assessed on their merits”.

Southern hazard – Lot 33

46. Lot 33 DP 709582 is located to the immediate south of the site. The RFS advice dated 2 September 2021 provided as follows with respect to this neighbouring property:

“Additional information must be provided to support the vegetation classification and the effective slope assessment of the land to the south of the development within lot 33 DP709582. Contour data retrieved from NSW Government Spatial Services indicate slopes of 14 degrees downslope to the south. The land to the south also appears to be fenced, unmanaged and regenerating into a rainforest hazard.”

47. Mr Jones indicated that updated advice from Cumberland Ecology confirmed that the vegetation type of relevance within Lot 33 would be classified as “grassland” hazard (Ex 5 par 204). Mr Jones indicated that Lot 33 “is currently and has historically been used for livestock grazing”, and that (Ex 5 par 206):

“(the) zoning of Lot 33 as RU2 also contradicts the most recent response from the NSW RFS response identifying that land as environmental zoning warranting a precautionary approach for potential regrowth of existing rainforest vegetation. Almost the entire area of Lot 33 is NOT identified as environmentally zoned and any additional regrowth beyond a grassland paddock for livestock grazing or agricultural use arguably diminishes the value of the land for its current zoning and intended rural use.”

48. In Dr Robertson’s oral evidence, he agreed that the proponent could not guarantee what might happen on Lot 33 (in terms of regrowth into rainforest hazard) without a form of restrictive covenant, but he confirmed his opinion that the relevant Lot 33 land had not regenerated significantly over the past 59 years (a measureable period based on his interpretation of air photo evidence) and would “struggle to regenerate”, further “in the next 59 years, with climate change” (Transcript 9/3/2022 p 97 line 33).

49. Mr Skelton’s opinion was that the property and surrounds, relevantly, would have been originally covered with rainforest and that now in areas where grazing and/or slashing had ceased there was a slow regeneration of rainforest (Ex 5 par 213). In his opinion this could be discerned with respect to Lot 33 from air photos from 1997, 2010 and 2021. Mr Skelton did not see any indication that the area would get drier (with climate change) and saw the rural use of the land in this area as decreasing, and “the pressure from grazing is less in recent years and is going to continue to be less” (Transcript 9/3/2022 p 97 lines 37-41).

Consideration

50. I accept what I understand to be the agreed position of the bushfire experts that in its current “grassland” state, there is no concern in regard to Lot 33 as the relevant APZ for the proposed development would fall entirely within the site. The concern is whether this status might change into the future. Both of the ecological experts provided reliable professional and technical evidence in their matters of expert interest in this case, which assisted the Court.

51. I am mindful that the consideration of bushfire protection in a seniors’ housing development is something that should be a concern for the life of a development. I am assisted more by the evidence of Mr McMonnies (Ex 5 par 214) and I find that, in light of the conflicting ecological advice in regard to the future of Lot 33, it is appropriate to adopt a conservative position, which suggests that at least a portion of the Lot 33 land should be under the management of the site into the future for bushfire protection (Mr Skelton suggest about 10m could be set aside for APZ while rainforest otherwise regenerated (Ex 5 par 213). There is no suggestion, in the application, of a binding legal agreement of this kind over Lot 33.

South-western hazard – certain land within unformed road reservation

52. The RFS advice dated 2 September 2021 provided as follows with respect to the land in question:

“Additional information must be provided to support the assessment of the land west of the development as managed. Alternatively, a legal mechanism shall be obtained to ensure the land within the adjacent unformed road reserve, and lot 33 DP709582 is managed to APZ standards.”

53. There was some confusion as to the terminology used in regard to the land in question. Old Saddleback Road, which forms the western boundary of the site, bends to the west near the site’s south-west corner. The cadastre in this area indicates a larger area of what the RFS advice refers to as ‘unformed road reserve’. The relevant unformed road can be understood to be a larger than usual offset area to the site’s own western boundary near the site’s south-west corner. But, as well, the unformed road reserve appears to run a considerable distance southwards between two segments of Lot 33 (Lot 33 straddles the unformed road reserve south and south-west of the site).

53. The concern is whether and how vegetation in the unformed road reserve should be considered in terms of bushfire risk. Mr McMonnies opinion was that there was no need to account for the regular carriageway verge area which might be expected to be slashed regularly by Council or adjacent landowners. That particular area should be thought of as “managed land” under Planning for Bushfire Protection (Ex 2 p 329) and as such would not get assigned a hazard value or require consideration in terms of any APZ. But Mr McMonnies believed that beyond the regular carriageway verge area, as Old Saddleback Road bends to the south-west away from the site’s south-west corner, the larger area of the unformed road reserve warranted attention and should be considered as bringing “grasslands” hazard risk (as defined in Planning for Bushfire Protection (Ex 2 p 328)). In material provided in Ex 8, Mr McMonnies identified the area which was not otherwise considered as part of the regular verge as a hazard and identified a required 40m separation distance from that hazard. Three of the residences fell within the identified separation distance.

54. Mr Jones acknowledged that the grass in the unformed road reserve area identified by Mr McMonnies was long at present (after recent very heavy rain) and readily met the grassland hazard criteria, but that it was more common for this area to be under the nominal height of 100mm, which would be considered as managed land. Mr Jones oral evidence was that (Transcript 8/3/2022 p 66 Lines 30-34:

“…it's just a hazard that's not practically worth worrying about; and I go back to some of my evidence to this point.  It's never been considered a hazard before.  Kiama Council's bush fire prone land mapping never considered it a hazard.  The bush fire risk management plan for Illawarra doesn’t consider it a hazard, its never been considered a hazard before.”

56. Mr Jones’ oral evidence also pointed to the approval of the Seaview Estate, also for seniors housing, which was near to the same hazard in the unformed road reserve. He also referenced obligations on the responsible land manager, including in regard to the Crown, to reduce and manage the potential bushfire threat (Ex 5 p 23-24).

Consideration

57. There is a clear reference in Planning for Bushfires that “APZs on adjoining land are not encouraged” and that were this to be proposed it should be supported by an easement under s 88B of the Conveyancing Act 1919 (see [46]). No provisions for this are made in regard to Lot 33, nor is there any agreement in place with Council in regard to the unformed road reserve.

58. Mr McMonnies evidence was more convincing and more directly responsive to the line of inquiry raised by RFS in regard to this matter (see [52]).

Overall findings in regard to bushfire-related concerns

59. While I do note Mr Jones’ comments that I should consider there is a low likelihood for an uncontrolled and damaging bushfire event impacting upon the proposed development site (eg in written evidence Ex 5 par 182), in planning for bushfire risk it is necessary to consider exceptional circumstances. I am also mindful of the status of the proposal as Special Fire Protection Purpose due to the particular vulnerability profile of residents. I preferred Mr McMonnies disciplined analysis of the context and applicable standards.

60. The alignment and profile of fire trail is something which has warranted quite precise consideration in association with the consideration of Zieria management concerns. But as proposed, the fire trail is unsatisfactory, as it does not meet the performance criteria or acceptable solutions in regard to crossfall at Table 1 to NSW RFS Fire Trail Standards (Exhibit 3 p 100 and reproduced at [33]). There is also insufficient evidence that the proposal meets the performance criteria in regard to fire trail “capacity” in the same standards, which goes to structural ability to enable trafficability of a Category 1 firefighting vehicle “under all weather conditions (other than due to flood, storm surge or snowfall)”. I must consider that these kinds of standards are there for a reason in attending to the real, albeit infrequent, risks and indeed dangers associated with bushfire. As such the NSW RFS Fire Trail Standards warrant considerable weight. The proposal, as presented and considered in the evidence, provides for a clearly inadequate response to these standards. The proposal does not warrant approval on these grounds alone given the risk to safety for residents and firefighters.

61. Considerations relating to the southern hazard and south-west hazard, identified above, also act against the proposal.

Other issues

Failing in regard to bushfire-related concerns means other issues do not require evaluation

62. In my opinion there is a threshold requirement for the proposal to adequately address bushfire-related concerns. This threshold has not been met in this instance by some considerable degree. While there was considerable evidence in regard to: (1) the permissibility of the development, (2) the meeting of requirements for “serviced self-care housing”, and (3) ecological concerns; it is unnecessary for this evidence to be evaluated given my findings in regard to bushfire-related concerns. Here I also note that while the proposal can be seen as bringing positive attributes through the supply of housing for seniors and persons with disability and potentially through implementation of the VMP, any such positives cannot overcome the human safety and property-related concerns associated with bushfire risk.

Note in regard to Exhibit K

63. I note here that the applicant sought that Ex K be adopted for the purposes of identification of the fire trail, were the Court to rule in favour of the application (Transcript 9/3/2022 p 103 line 4). This would occur by way of reference to the plan at Ex K in any conditions to the grant of consent.

64. As indicated at [40] I did not take it that the applicant intended that the designation “proposed bushfire track”, as indicated by text in Ex K and coinciding relevantly with the 6 degree crossfall line for “Bushfire Cross Section 2” and “Bushfire Cross Section 3”, was intended to be adopted as the crossfall of the proposed fire trail. This is for a number of reasons. First, is that it was clear that the bushfire and ecology experts, in coming to a resolution of the potential conflict between the fire trail and management of adjacent Zieria, adopted the position that the fire trail would run along the natural ground level (see [31]-[32]). It is clear from the cited expert evidence that it was the adoption of this approach to the fire trail (no associated excavation, fill batters and drainage) that prevented further complications in terms of Zieria management. The evidence of the experts together aligns with this assumption. Second, is that the examination of Mr Jones and Mr McMonnies, and the evidence these experts provided, was clearly based on the assumption that the fire trail would be running along the identified “natural ground level”. This was through their coming to the differing conclusions that the fire trail would “be almost double that 6 degrees” (Mr McMonnies, see [42]) or “maybe 8, 9 degrees” (Mr Jones, also see [42]). Third, is that the applicant did not seek to examine the suggestion of a constructed fire trail (and associated excavation, fill batters and drainage) which it was clear would be at issue if such a change was proposed (given the joint evidence from ecology and bushfire experts reproduced in full at [31]). I was ready to allow the parties at least some time to explore this question should there have been seen to be a need (Transcript 9/3/2022 Lines 39-43).

65. I note that in its closing submission the applicant briefly referred to the fire trail represented in Ex K as “complying with the relevant technical standards” (Applicant’s Closing Submission filed 16 March 2022 par 112), although only specifically referencing the long section standard of 15 degrees which I have not found fault with. If I were wrong in my understanding of the applicant’s intention and that, with the admission of Ex K into evidence, there was a new interest in providing the fire trail along the 6 degree crossfall line, then the proposal would also fail. On this point, I would accept the evidence of Mr Skelton that there is an unmet need for the evaluation of the impact of the constructed fire trail on the Zieria (Ex 5 par 141, reproduced at [31]).

Conclusion

66. For the reasons outline above the proposal does not warrant the grant of consent.

Orders

67. The Court orders that:

1. The appeal is dismissed.

2. Development Application 10.2021.67.1, which seeks the grant of development consent for seniors housing and associated development at 2 Caliope Street Kiama is refused.

3. The exhibits are returned with the exception of Exhibits 1, 6, A, B, C, E and K which are retained.

………………………..

P Walsh

Commissioner of the Court

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Endnote

Decision last updated: 05 May 2022