Private Property Pty Limited v Mid-Coast Council [2022] NSWLEC 1738
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Land and Environment Court
New South Wales
Medium Neutral Citation: Private Property Pty Limited v Mid-Coast Council [2022] NSWLEC 1738
Hearing dates: 6, 7 and 28 June 2022
Date of orders: 23 December 2022
Decision date: 23 December 2022
Jurisdiction: Class 1
Before: Chilcott C
Decision: The Court directs:
(1) the Parties are to file final agreed conditions of consent that are consistent with the conclusions of the Court (see at [171]) by no later than Friday 27 January 2023;
(2) this matter is listed for mention on Monday 30 January 2023 at 4:15pm by telephone;
(3) if the Parties comply with the terms of the direction above at (1), then the listing on Monday 30 January 2023 will be vacated;
(4) the Parties are granted liberty to restore on 3 days' written notice.
Catchwords: DEVELOPMENT APPLICATION – proposed pet resort – whether acoustic impacts are acceptable – whether ecology impacts are acceptable – consideration of Applicant's plan of management - conditions of consent.
Legislation Cited: Biodiversity Conservation Act 2016, ss 1.3, 7.2, 7.3, 7.5, 7.7
Biodiversity Conservation Regulation 2017, cl 6.7
Conveyancing Act 1919, s 88B
Environmental Planning and Assessment Act 1979, ss, 1.7, 4.15, 4.16, 8.2, 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cll 55, 77
Great Lakes Local Environmental Plan 2014, cll 2.3, 5.21, 7.1, 7.2, 7.5
Local Government Act 1993, s 68
Protection of the Environment Operations Act 1997
Rural Fires Act 19972017, s 100B
Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021
Standard Instrument (Local Environmental Plans) Order 2006, cl 8
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chps 3, 4, scl 4.16, Pt 3.2
State Environmental Planning Policy (Coastal Management) 2018
State Environmental Planning Policy (Koala Habitat Protection) 2020
State Environmental Planning Policy (Koala Habitat Protection) 2021, cl 18
State Environmental Planning Policy (Koala Habitat Protection) 2019
State Environmental Planning Policy (Resilience and Hazards) 2021, sscll 2.10, 2.11, 4.6
State Environmental Planning Policy Amendment (Flood Planning) 2021
State Environmental Planning Policy No 44 – Koala habitat Protection
State Environmental Planning Policy No 55 -Remediation of Land, cl 7
Cases Cited: 278 Palmer St Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 165
Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7
Halcyon Hotels Pty Ltd (93 124 421 199) v Wingecarribee Shire Council [2022] NSWLEC 1221
Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315
Texts Cited: Great Lakes Community Participation Plan 2019 Great Lakes Development Control Plan 2013
Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, April 2021
Mid-Coast Community Participation Plan 2019
NSW Department of Planning, Industry and Environment. Biodiversity Assessment Method 2020
NSW Environment Protection Authority, NSW Industrial Noise Policy, 2000
NSW Environment Protection Authority, Noise Guide for Local Government, 2013
NSW Environment Protection Authority, Noise Policy for Industry, 2017
NSW Rural Fire Service, Planning for Bushfire Protection, 2019
NSW Rural Fire Service, Standards for Asset Protection Zones, 2019
Category: Principal judgment
Parties: Private Property Pty Limited (Applicant)
Mid-Coast Council (Respondent)
Representation: Counsel:
A McKelvey (Applicant)
A Pickup (Respondent)
Solicitors:
Sparke Helmore (Applicant)
Local Government Legal (Respondent)
File Number(s): 2021/328094
Publication restriction: Nil
JUDGMENT
1. COMMISSIONER: Private Property Pty Limited (the Applicant) has appealed the refusal by Mid-Coast Council (the Respondent) of its development application DA346/2020, made with owner's consent, seeking consent for a pet resort comprising a single dwelling on a single level with indoor facilities and an outdoor play area, attached car park with access via an existing sealed access road (the Proposed Development) on land described Lot 120 in DP 848596, also known as 96 Coomba Road, Charlotte Bay (the Subject Site).
2. The Subject Site is zoned R5 Large Lot Residential pursuant to cl 2.3 of Great Lakes Local Environmental Plan 2014 (GLLEP) and the Proposed Development, which is characterised as an animal boarding or training establishment, is permissible on the Subject Site with consent.
3. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.
4. A site inspection was undertaken at the commencement of the hearing, consistent with the Court's COVID-19 Pandemic Arrangements Policy, and the balance of the hearing was undertaken at Court.
The Proposed Development
1. The Applicant's Proposed Development:
1. consists of:
1. a pet resort will house up to 30 dogs in 20 kennels at any one time and an additional 2 dogs may be on site in association with the dog grooming business at any one time;
2. a staff room, dog grooming salon and reception area;
3. an outdoor play area for dogs;
4. a 3m high acoustic barrier along the southern extent of the outdoor play area to mitigate potential noise impacts;
5. an effluent disposal area, located to the north of the proposed pet resort, for disposal of waste generated by the pet resort facility;
1. will have three (3) employees; and
2. would operate 24 hours a day, 7 days a week, with drop off and pickup of dogs to be between 8am and 10am and 1.30pm to 5pm, although clients with pets utilising the grooming salon would not be subject to those restrictions.
3. is illustrated in the following figure:
The Subject Site and its context
1. The location of the Subject Site within the Great Lakes region, and relative to Wallis Lake, including Charlotte Bay, to its north, is illustrated in the following figure, extracted from the NSW Government's Six maps website, and in which the site is highlighted yellow.
1. The Subject Site is located within the Coastal Environment Area under the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), which commenced on 1 March 2022 and includes coastal planning provisions previously contained in the now repealed State Environmental Planning Policy (Coastal Management) 2018.
2. The Coastal Environment Area as it relates to the Subject Site is illustrated in the following figure drawn from the NSW Department of Planning and Environment's mapping tool, and in which the Subject Site is outlined in yellow and the Coastal Environmental Area is shaded in lilac overlaying the Subject Site.
1. The Subject Site has the benefit of a consent granted on 29 June 2016 by Mid-Coast Council for subdivision of the site to create four (4) lots, identified as proposed Lots, 30, 31, 32 and 33.
2. The approved plan of subdivision is provided below, and the proposed pet resort would be located on proposed Lot 33 which:
1. is located centrally to the north of the Subject Site;
2. has an area of 1.827ha; and
3. contains an existing residence and an access road into the Subject Site.
1. In addition to proposed Lot 33 on which the Proposed Development would be located, the Subject Site includes proposed Lot 32 located adjacent to the southern and eastern boundaries of proposed pet resort, as illustrated above.
2. Proposed lot 32 includes:
1. an identified larger portion of the lot that is an "Area of Conservation" and which:
1. abuts the eastern boundary of proposed Lot 33; and
2. wraps around the south-eastern corner of that lot; and
1. a smaller portion of the lot, located immediately to the south of proposed Lot 33 and the proposed pet resort, and within which is depicted an indicative building envelope, marked up by Council's Senior Ecologist, such that any future building on that lot would have minimal impact on the identified Area of Conservation.
Notifications and objector submissions
1. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), and the provisions of Mid-Coast Community Participation Plan 2019, the Applicant's development application DA346/2020 was notified between 16 March 2020 and 3 April 2020 and six submissions were received in response to that notification.
2. At the commencement of the site view, five (5) objectors provided oral submissions in the proceedings and the matters raised by those objectors reflected those raised in written submissions received in response to notification of the application, and included:
1. potential noise impacts from the pet resort;
2. other potential environmental impacts associated with the Proposed Development, including:
1. issues related to waste disposal;
2. the proximity of the development to residential dwellings,
3. the visual impact of structures associated with the pet resort, including the acoustic fence; and
1. potential conflicts between the pet resort operation and adjoining residential land uses;
2. consistency of the proposed pet resort with the objectives of the Great Lakes Development Control Plan 2014 (GLDCP).
The Applicant seeks to amend its development application
1. At the commencement of the hearing on 6 June 2022, and in response to matters raised during the site view, the Applicant was granted leave, unopposed by the Respondent, to rely on the following plans and other documents in the proceedings:
1. amended architectural drawings that became Exhibit E in the proceedings;
2. advice from Mr Ben Folbigg of Tattersall Lander Pty Ltd, in relation to bushfire matters, and which became Exhibit G in the proceedings; and
3. a letter from Mr Daryl Harman of Wildthing Environmental Consultants, concerning biodiversity matters, accompanied by a flora and fauna assessment prepared by Avitech (and dated 16 June 2015), which became Exhibit H in the proceedings.
1. Consistent with the provisions of cl 55 of the Environment Planning and Assessment Regulation 2000 (EP&A Regulation), and without objection from the Respondent, the Court directed that the Applicant upload its amended application to the NSW Planning Portal and confirm to the Court that this has been completed.
2. The Applicant subsequently confirmed that its amended application had been uploaded to the NSW Planning Portal.
3. Following an adjournment of proceedings, and upon the hearing resuming on 28 June 2022, the Applicant sought leave to rely upon further documents in the proceedings as follows:
1. an updated landscape plan, which then became Exhibit F in the proceedings;
2. updated bushfire risk mitigation advice and arborist advice, both from Mr Ben Folbigg of Tattersall Lander Pty Ltd and dated 16 June 2022, that became Exhibits J and K in the proceedings;
3. a Koala Assessment Report prepared by Wildthing Environmental Consultants and dated 21 June 2022, which became Exhibit L in the proceedings; and
4. an Ecological Assessment Report from Wildthing Environmental Consultants, dated 24 June 2022, which became Exhibit M in the proceedings.
1. The Applicant's request to rely on these documents in the proceedings was granted, without objection.
2. The Respondent's invited the Court to make a further order that it's costs in dealing with the Applicant's amended documents be paid by the Applicant pursuant to the provisions of s 8.15(3) of the EP&A Act. This order would be made upon the Court making final orders to dispose of the appeal.
Contentions
1. The principal contentions in this appeal fell into the following broad areas:
1. ecology contentions concerning whether the Applicant's proposed clearing of trees for the Proposed Development is acceptable in relation to:
1. the potential impact of a proposed acoustic barrier, and its construction along the southern edge of the proposed outdoor play area, on certain trees located to the barrier's south;
2. the potential impact on koala food trees on the Subject Site; and
3. the Applicant's proposed effluent disposal system;
1. a bushfire contention concerning the Proposed Development's compliance with Planning for Bushfire Protection 2019 (PfBP);
2. contentions concerning the potential acoustic impacts of the Proposed Development on any future residence constructed on the indicative building envelop located to the south of the pet resort on proposed Lot 32;
3. planning related contentions that concerned:
1. whether the Proposed Development, which includes proposed filling, satisfied the provisions of subcl 3(d) of cl 7.2 of the GLLEP in relation to earthworks; and
2. the Applicant's proposed plan of management;
3. the potential visual impacts of the Proposed Development, and in particular those associated with the Applicant's proposed acoustic barrier to the south of the outdoor play area, and adjacent to the boundary with proposed Lot 32;
4. whether the Proposed Development was acceptable having regard to the objectives of the Subject Site's R5 zoning.
Certain contentions resolved
1. At the commencement of the hearing, the Parties agreed, and I am satisfied, that the planning contention concerning fill, and satisfaction of cl 7.2 of GLLEP, was resolved on the basis that the Applicant had confirmed:
1. it would retain the area of fill on which the outdoor play area is to be located;
2. the fill would not be battered so as to mitigate potential impacts on vegetation between the proposed outdoor play area and the southern and eastern boundaries of proposed Lot 33.
Remaining contentions
1. The Parties subsequently agreed that the remaining contentions in the appeal concerned the potential impacts arising from the establishment and use of the proposed pet resort outdoor play area for dogs, and more specifically:
1. ecology contentions concerning whether the Applicant's proposed clearing of trees for the Proposed Development is acceptable in relation to:
1. the potential impact of a proposed acoustic barrier on certain trees located to the barrier's south;
2. the potential impact on koala food trees on the Subject Site; and
3. the Applicant's proposed effluent disposal system
1. a bushfire contention concerning whether landscaping on the boundary between the Proposed Development and sensitive receptor R3 complies with PfBP and can be realistically maintained
2. a noise contention concerning whether the Court could be satisfied that the Proposed Development would not result in unacceptable potential noise impacts on any future residence constructed adjacent to, and south of, the Proposed Development on Lot 32; and
3. planning contentions concerning:
1. whether the Applicant's proposed plan of management was acceptable and whether future compliance with its provisions could be reasonably anticipated;
2. whether the potential visual impact of the acoustic barrier around the outdoor play area were acceptable;
3. whether the Proposed Development satisfied all of the objectives of the R5 Large Lot Residential zoning of the Subject Site under the GLLEP;
1. The Court was assisted in its considerations of these contentions by the evidence of the Parties experts as follows:
1. the Parties' expert ecologists:
1. Mr Daryl Harman, for the Applicant; and
2. Mr Matthew Bell, for the Respondent;
1. the Parties' expert planners:
1. Mr Bob Lander, for the Applicant; and
2. Mr Ben Lim-Cooper, for the Respondent.
1. the Parties' acoustic experts:
1. Mr Neil Pennington, for the Applicant; and
2. Mr Stephen Gauld, for the Respondent.
1. the Applicant's bushfire expert Mr Ben Folbigg.
Statutory context
Environmental Planning and Assessment Act 1979
1. Development on the Subject Site is subject to the provisions of the NSW EP&A Act, and the following provisions of that Act are of relevance in this appeal:
1. section 4.15(1) of the EP&A Act provides that:
(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application -
(a) the provisions of -
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
(v) (Repealed)
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
Great Lakes Local Environmental Plan 2014
1. The following provisions of GLLEP are of relevance in this appeal:
1. clause 2.3 concerning zone objectives and land use table, and in relation to which:
1. subclause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and
2. the Subject Site is zoned R5 Large Lot Residential, the objectives of which are:
• To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.
• To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.
• To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.
• To minimise conflict between land uses within this zone and land uses within adjoining zones.
• To enable development that has minimal environmental and visual impact and is compatible with residential land uses within the zone.
1. clause 7.1 concerning acid sulfate soils applies to development on the Subject Site, and relevantly in relation to this appeal provides as follows:
(1) The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage.
(2) Development consent is required for the carrying out of works described in the Table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works.
…
1. clause 7.2 concerning earthworks applies to development on the Subject Site and provides as follows:
(1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.
(2) Development consent is required for earthworks unless:
(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or
(b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.
(3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters:
(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,
(b) the effect of the development on the likely future use or redevelopment of the land,
(c) the quality of the fill or the soil to be excavated, or both,
(d) the effect of the development on the existing and likely amenity of adjoining properties,
(e) the source of any fill material and the destination of any excavated material,
(f) the likelihood of disturbing relics,
(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,
(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
1. clause 7.5 in relation to stormwater management applies to development on the Subject Site and relevantly in relation to the current appeal provides as follows:
(1) The objective of this clause is to minimise the impacts of stormwater on land to which this clause applies and on adjoining properties, native bushland, groundwater, wetlands and receiving waters.
(2) Development consent must not be granted to development on any land unless the consent authority is satisfied that the development:
(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and
(b) is designed to minimise the use of impervious surfaces on the land, directing run off to piped drainage systems and waterways, and
(c) is designed to integrate water sensitive design measures, including stormwater, groundwater and waste water management, to minimise environmental degradation and to improve the aesthetic and recreational appeal of the development, and
(d) incorporates an appropriately managed and maintained stormwater management system that will maintain or improve the quality of stormwater discharged from the land, and
(e) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and
(f) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland, groundwater, wetlands and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.
Biodiversity Conservation Act 2016
1. The following provisions of the Biodiversity Conservation Act 2016 (the BC Act) are of relevance to the current appeal:
1. Section 1.3 which provides the purpose of the Act, and which includes, inter alia:
"The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular –
….
(k) to establish a framework to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity, …"
1. Part 7 of the BC Act concerns biodiversity assessment and approvals under the EP&A Act which include the following provisions of relevance to the current appeal:
1. section 7.2 which defines the circumstances in which a development or activity is "likely to significantly affect threatened species", and which provides as follows:
(1) For the purposes of this Part, development or an activity is likely to significantly affect threatened species if -
(a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or
(b) the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or
(c) it is carried out in a declared area of outstanding biodiversity value.
(2) To avoid doubt, subsection (1)(b) does not apply to development that is an activity subject to environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979.
(3) Subsection (1)(a) does not apply to bushfire-affected development if -
(a) the proposed development –
(i) is the reconstruction or replacement of a bushfire-affected building or structure, and
(ii) will result in a building or structure that is the same, or substantially the same, as the building or structure that existed immediately before it was damaged or destroyed, and
(b) the development application for the bushfire-affected development is made no later than 2 years after the commencement of this subsection.
(4) This subsection and subsections (3) and (5) are repealed 2 years after they commence.
(5) In this section –
bushfire-affected building or structure means a building or structure that -
(a) was destroyed or damaged as a result of bushfire in the period starting 5 August 2019 and ending 2 March 2020, and
(b) was, immediately before it was destroyed or damaged, lawfully erected.
bushfire-affected development means proposed development involving the erection of, or repairs to, a bushfire-affected building or structure.
1. section 7.3 which provides the test for determining whether proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats, and which provides as follows:
(1) The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats -
(a) in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,
(b) in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity -
(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or
(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,
(c) in relation to the habitat of a threatened species or ecological community—
(i) the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and
(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and
(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,
(d) whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),
(e) whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.
(2) The Minister may, by order published in the Gazette with the concurrence of the Minister for Planning, issue guidelines relating to the determination of whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. Any such guidelines may include consideration of the implementation of strategies under the Biodiversity Conservation Program.
1. section 7.5, which concerns the relationship between the BC Act and the Planning Act, being the EP&A Act, and which provides that:
(1) This Part prevails to the extent of any inconsistency between this Part and the Environmental Planning and Assessment Act 1979 (or any instrument under that Act).
(2) A reference in the Environmental Planning and Assessment Act 1979 or any other Act or in any statutory instrument or document to the Environmental Planning and Assessment Act 1979 (whether an express or implied reference) is a reference to that Act as applying in accordance with this Part.
1. section 7.7 which concerns biodiversity assessment for Part 4 development (other than State significant development or complying development), and which provides:
(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979, except—
(a) an application for development consent for State significant development, or
(b) an application for a complying development certificate.
(2) If the proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report.
Rural Fires Act 1997
1. The Proposed Development, as amended, is subject to the provisions of the Rural Fires Act 1997 (RF Act).
2. Section 100B of the RF Act provides:
(1) The Commissioner may issue a bush fire safety authority for—
(a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or
(b) development of bush fire prone land for a special fire protection purpose.
(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.
(3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1).
(4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations.
…
State Environmental Planning Policy (Resilience and Hazards) 2021
1. The provisions of Chapter 2 (Coastal Management) within State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) apply to development on the Subject Site. These provisions replace those in similar terms within the now repealed State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP), and relevantly in the current appeal:
1. the provisions of s 2.10 of SEPP R&H provide as follows:
2.10 Development on land within the coastal environment area
1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—
(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,
(b) coastal environmental values and natural coastal processes,
(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,
(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,
(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,
(f) Aboriginal cultural heritage, practices and places,
(g) the use of the surf zone.
(2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that—
(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), 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.
(3) This section does not apply to land within the Foreshores and Waterways Area within the meaning of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), Chapter 6.
1. the provisions of s 2.11 of SEPP R&H provide as follows:
(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—
(a) has considered whether the proposed development is likely to cause an adverse impact on the following -
(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,
(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,
(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,
(iv) Aboriginal cultural heritage, practices and places,
(v) cultural and built environment heritage, and
(b) is satisfied that—
(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or
(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or
(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and
(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.
(2) This section does not apply to land within the Foreshores and Waterways Area within the meaning of (SEPP B&C),, Chapter 6.
1. Development on the Subject Site is also subject to the provisions of s 4.6 of SEPP R&H in relation to contamination, and which relevantly in relation to the current appeal provides as follows:
(1) A consent authority must not consent to the carrying out of any development on land unless—
(a) it has considered whether the land is contaminated, and
(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and
(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.
…
1. The Proposed Development is not a development of the type identified within subs 4.6(4) of SEPP R&H.
State Environmental Planning Policy (Biodiversity and Conservation) 2021
1. The provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), notably those in Chapters 3 and 4 concerning koala habitat protection, which incorporate the provisions of State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020) and State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP 2021), respectively, apply to development on the Subject Site.
2. For reasons provided below (at [67] to [70]), adopting the reasons provided by the Applicant in these proceedings, it is the relevant provisions of either Chapter 3 of SEPP B&C or those of Koala SEPP 2020, which are in similar terms, that apply to this the development that is the subject of appeal in this judgment.
3. The relevance of the provisions in these instruments to the current appeal are discussed in more detail below, although I note that it was common ground between the Parties that the Subject Site does not contain core koala habitat as defined within both instruments.
Great Lakes Development Control Plan 2013
1. The provisions of the following parts of GLDCP are of relevance in this appeal:
1. the provisions of section 4 in relation to environmental considerations, including:
1. section 4.1 in relation to ecological impacts, which has the following objective:
"To ensure that development is designed in a manner that avoids, mitigates or offsets negative impacts on biodiversity and the quality and function of the natural environment and responds to relevant ecological constraints and opportunities."
1. section 4.4 in relation to effluent disposal, which has the following objectives:
"To ensure that new developments have adequate facilities for the management of onsite sewage
To ensure that new development does not result in adverse impacts on the health of the public or the environment from sewage."
1. section 4.7 in relation to bushfire, which has the following objective:
"To ensure new development is designed with regard to bush fire hazards."
1. the provisions of section 10 in relation to car parking, access, alternative and active transport, which has the following objectives:
"To ensure that there is adequate and safe provision for access, manoeuvring and parking within the development.
To restrict vehicular access to buildings in a manner that is compatible with pedestrian movements and safety.
To integrate vehicle access and parking facilities without compromising street character, active street frontages or landscape.
To promote alternative and active transport for both commuting and recreational transport.
To provide an adequate level of onsite parking based upon anticipated occupancy rates and proximity to alternate and active transport, such as walking and bicycling.
To ensure that parking requirements are met without imposing an undue burden on developers or an additional liability on the present and future ratepayers.
To ensure adequate space is provided in nonresidential development for safe vehicle manoeuvring so that vehicles enter and exit the site in a forward direction."
1. the provisions of section 11 in relation to water sensitive design, particularly section 11.4.4 concerning other development, which has the following objectives:
"To safeguard the environment by maintaining or improving the quality of stormwater run-off.
To protect and restore aquatic, estuarine or riparian ecosystems and bushland areas.
To harvest rainwater and urban stormwater runoff for use where appropriate.
To control the hydrological impacts of development on receiving surface and ground water systems by controlling the frequency, magnitude and duration of flows to preserve, as far as practicable, pre-development groundwater and surface water regimes and interactions.
To control the impacts of development on channel bed and bank erosion by controlling the magnitude, nature and duration of sediment-transporting flows.
To promote disconnection of impervious areas to the drainage system by introducing appropriate measures to minimise the rate, frequency and volume of urban runoff events in order to improve WSD performance."
1. the provisions of section 13 in relation to landscaping and open spaces, which has the following objectives of relevance in this appeal:
"To encourage development design which responds to the topography of the site and provides for the retention of mature native tree species.
To ensure that existing vegetation on steep slopes and near watercourses are maintained and protected."
1. the provisions of section 14 in relation to waste management which has the following objective:
"To plan for sustainable waste management.
To develop systems for waste management to ensure waste is transported and disposed of in a lawful manner.
To provide guidance in regards to space, storage amenity and management of building site waste management facilities.
To ensure waste management systems are compatible with collection services.
To minimise risks associated with waste management at all stages of development.
To maximise reuse and recycling of household, industrial and commercial waste."
Remaining contentions resolved
1. The remaining contentions in the appeal were identified above (at [23]) and resolution of those contentions requires the Court to consider the following questions:
1. is the Applicant's proposed clearing of trees for the Proposed Development acceptable in relation to:
1. the construction of the proposed acoustic barrier at the southern side of the outdoor play area?
2. the potential impact on koala food trees on the Subject Site? and
3. the Applicant's proposed effluent disposal system?
1. is the Applicant's proposed landscaping compliant with Pf BP and can it be realistically maintained?
2. are the Proposed Development's potential noise impacts during the daytime hours acceptable in relation to any future residence constructed adjacent to, and south of, the Proposed Development on proposed Lot 32?
3. is the Applicant's proposed plan of management acceptable, and can future compliance with its provisions be reasonably anticipated?
4. is the potential visual impact of the acoustic barrier around the outdoor play area acceptable?
5. is the Proposed Development acceptable having regard to the objectives of the R5 Large Lot Residential zoning of the Subject Site under the provisions of GLLEP?
1. For reasons provided below, I have concluded that each of these questions should be answered in the affirmative, and the Proposed Development should be the subject of a grant of consent.
2. I will consider each of these questions in more detail, ad seriatum, below, providing reasons for my conclusion that the Applicant's Proposed Development should be approved.
3. I will then address some residual matters in the appeal, including in relation to conditions of consent and jurisdictional matters (see below (at [135] and [170]).
Is the Applicant's proposed clearing of trees for the Proposed Development is acceptable?
1. The Proposed Development is subject to the provisions of Part 7 of the BC Act (see above (at [27]) in relation to biodiversity assessment and approvals under the EP&A Act, and as required under s 1.7 of the EP&A Act.
2. There are no specific provisions within GLLEP in relation to biodiversity conservation although the provisions of section 4.1 of GLDCP (see above (at [36(1)(a)]) are a relevant consideration in relation to the Proposed Development.
3. The impacts of the Proposed Development in relation to tree removal were amended during the hearing, and finally defined by the Applicant in its Ecological Assessment Report of 24 June 2022 by Wildthing Environmental Consultants, superseding the advice provided by that company at the commencement of the hearing in its report of 7 June 2022.
4. The Applicant's Ecological Assessment Report dated 24 June 2022 noted that a total of 99 trees were located wholly within proposed Lot 33 and one tree, a Tallowwood (Eucalyptus microcorys) of relevance to the Proposed Development, had its trunk outside proposed Lot 33 but with its limbs overhanging the Lot.
5. Of these, five (5) trees were found to contain hollows and 26 trees were identified as Tallowwoods which is a preferred koala food tree species. The locations of each of these trees was documented in Figure 5.2 of that report.
6. The Respondent had contended that:
1. both s 1.3(k) of the BC Act (see above at [27(1)]) and cl 2.10(2) in Chapter 2 (Coastal Management) within SEPP R&H (see above at [30(1)]) require that the Proposed Development avoid, minimise and offset its potential impacts; and
2. insufficient attention has been paid to:
1. the removal of native vegetation and particularly Koala food trees from the Subject Site as part of the Proposed Development; and
2. identifying options either to avoid potential adverse impacts or, at least, to minimise potential impacts by way of amendment to the Proposed Development.
1. As noted above, the Respondent's contentions concerning the acceptability or otherwise of the Applicant's proposals for tree removal within its Proposed Development concerned the following three aspects of the development:
1. the construction of the proposed acoustic barrier at the southern side of the outdoor play area;
2. the potential impact on koala food trees on the Subject Site; and
3. the Applicant's proposed effluent disposal system.
1. I will consider each of these in turn.
Are the Applicant's proposals for tree removal for the construction of the proposed acoustic barrier at the southern side of the outdoor play acceptable?
1. The impact of the Proposed Development on native vegetation was not a matter raised in the Respondent's Statement of Facts and Contentions in the proceedings as either a contention warranting refusal or in relation to insufficient information that was required to be provided.
2. However, during the site inspection discussions between the Court and the Parties gave rise to the acceptability of the extent of vegetation requiring removal to construct the proposed outdoor play area, acoustic barrier and to achieve canopy separation for bushfire protection.
3. The Applicant submitted that the Court in undertaking its own merit assessment can consider issues that are not joined between the Parties provided that the principles of procedural fairness are adhered to (278 Palmer St Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 165 per Robson J at [26]-[27]).
4. Following the site inspection, the Applicant halved the width of its proposed outdoor play area to reduce the amount of native vegetation that was required to be removed for its construction.
5. As identified within the Applicant's most recent Ecological Assessment Report dated 24 June 2022, construction of the Applicant's proposed outdoor play area, as amended, and the acoustic barrier proposed for mitigation of potential noise impacts related to the use of that area by dogs within the facility, would require:
1. removal of two specimens of Tallowwood (Eucalyptus microcorys) referred to during the hearing as Trees 1 and 2;
2. removal of two specimens of blackbutt (Eucalyptus pilularis), referred to during the hearing as Trees 3 and 6;
3. removal of one dead blackbutt stag, referred to during the hearing as Tree 7;
4. trimming of one Tallowwood, referred to during the hearing as Tree 4;
5. removal of approximately 0.03ha of native vegetation consistent with Plant Community Type (PCT) 1556 – Tallowwood – Smooth-barked Apple Blackbutt grass open forest of the Central and Lower North Coast.
1. The removal of Trees 1, 2, 3, 6 and 7, along with the trimming of Tree 4, is required primarily to meet the requirements of the NSW Rural Fire Service (RFS) Standards for Asset Protection Zones in relation to bushfire risk mitigation, as confirmed in the Applicant's letter of 16 June 2022 from Tattersall Lander Pty Ltd.
2. The further arborist advice from Tattersall Lander Pty Ltd dated 16 June 2022 confirmed that the pruning required of Tree 4 represented around 40% of its canopy but also stated that the tree would withstand such significant pruning.
1. the Applicant's Ecological Assessment report of 24 June 2022 also noted that:
1. approximately 0.03ha of native vegetation consistent with PCT 1556, Tallowwood – Smooth-barked Apple Blackbutt grass open forest of the Central and Lower North Coast, is proposed for removal; and
2. an area of 0.16 ha of vegetation, consistent with PCT 1556 would need to be under-scrubbed for the purposes of providing asset protection zones for the Proposed Development.
1. The Applicant's Ecological Assessment Report further noted that PCT 1556 is not listed as a threatened or endangered ecological community under the BC Act.
2. The Applicant's Ecological Assessment Report assessed the potential impacts of the construction of the Applicant's proposed outdoor play area, as amended, and the acoustic barrier in relation to the provisions of s 7.3 of the BC Act (see above at [27(2)(b)]).
3. More specifically, it assessed whether those elements of the Proposed Development would significantly affect any threatened species, or ecological communities or their habitats, and it concluded that:
1. the Proposed Development would not give rise to any such impacts;
2. the vegetation removal required for this aspect of the development would not trigger the need for a Biodiversity Development Assessment Report (BDAR) pursuant to the provisions of s 7.7 of the BC Act (see above at [27(2)(d)]); and
3. no biodiversity credits were required to be retired to offset any impacts of that element of the development.
1. This conclusion was not challenged by the Respondent, and I am satisfied construction of the Applicant's proposed outdoor play area, as amended, and the acoustic barrier, will not have a significant impact on any threatened species or community, or the habitat thereof.
2. Notwithstanding this conclusion, I note that the Respondent has raised separate contentions concerning the potential impact of the Proposed Development on koala food trees and in relation to its proposed wastewater disposal system, and I will now consider these matters.
Are the Applicant's proposals for tree removal acceptable in relation to the potential impact on koala food trees on the Subject Site?
1. As already noted, the Applicant has prepared an Ecological Assessment Report dated June 2022 and a Koala Impact Assessment (the Koala Impact Assessment) also dated June 2022, and both prepared by Wildthing Environmental Consultants.
2. Before considering the potential impact of the Proposed Development on preferred koala food trees, it is relevant to address the statutory koala protection provisions that apply to the Proposed Development as some of the trees proposed for removal are koala food trees. This is relevant to the potential grant of consent to the Proposed Development.
3. The Applicant's Development Application was lodged on 28 February 2020, and at that time the former and now repealed State Environmental Planning Policy No 44 – Koala habitat Protection was in force.
4. Subsequently, the following instruments concerning koala protection were enacted:
1. State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala SEPP 2019), which commenced on 1 March 2020;
2. State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020), which commenced on 30 November 2020; and
3. State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP 2021), which commenced on 17 March 2021.
1. On 1 March 2022, the provisions of Koala SEPP 2020 and Koala SEPP 2021, as they applied at that time, were transferred to Chapters 3 and 4 respectively of SEPP B&C.
2. I have previously considered the application of these instruments in the context of their application to a development application lodged prior to the commencement of SEPP B&C in Halcyon Hotels Pty Ltd (93 124 421 199) v Wingecarribee Shire Council [2022] NSWLEC 1221 (hereafter referred to as Halcyon Hotels).
3. I adopt the construction of the provisions of Chs 3 and 4 of SEPP B&C and of Koala SEPP 2020 and Koala SEPP 2021 as outlined in Halycon Hotels for the purposes of the current appeal.
4. Under this construction, the Applicant's development application in this appeal would have the benefit of the prior savings provision in cl 18 of the Koala SEPP 2021 which would result in the application being subject to the Koala SEPP 2020 as it applied immediately before 17 March 2021.
5. In its written closing submissions in this appeal, the Applicant stated that:
1. a potential difficulty with this construction, and one not addressed clearly in Halcyon Hotels is that the savings provision in s 4.16 of SEPP B&C only relates to Ch 4 of that SEPP containing the transferred provisions of Koala SEPP 2021 but not Ch 3 containing the transferred provisions of Koala SEPP 2020; and
2. the savings provision in s 4.16 therefore cannot have the effect of referring existing development applications back to both the Koala SEPP 2020 and Koala SEPP 2021 prior to those instruments being transferred to SEPP B&C.
1. However, the Applicant also noted, and I agree, that regardless of whether the Court adopts the Applicant's construction above (at [69]), or the construction adopted in Halcyon Hotels, (see above (at [68]) there is no difference in the legal test that is to be applied to the Applicant's development application in this appeal, and:
1. the application is subject to either the statutory test under Koala SEPP 2020 as it applied immediately prior to 17 March 2021 or under Ch 3, Pt 3.2 of SEPP B&C which are the same in their terms; and
2. as a consequence, of the trees proposed for removal by the Applicant under its Proposed Development, only the Tallowwoods proposed for removal are, for the purposes of assessing the Proposed Development, considered to be preferred koala food trees.
1. The consequence of this construction is that, notwithstanding that two Tallowwoods are proposed for removal, and one is proposed for significant trimming of limbs, the consent authority, or the Court on appeal, is not prevented from granting consent to the Proposed Development because neither the provisions of Koala SEPP 2020 nor Ch 3 of SEPP B&C would prevent the grant of consent to the Proposed Development because:
1. the Applicant's assessment of the Subject Site in relation to the presence of koala habitat thereon:
1. was based on information obtained by the Applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management undertaken; and
2. confirmed that the Subject Site was not an area of land with a resident population of koalas, as evidenced by attributes such as breeding females, being females with young, and/or recent sightings of and historical records of a population;
1. based on the Applicant's assessment of the Subject Site, there is no core koala habitat on the Subject Site.
1. For the reasons provided above (at [71]), I am satisfied that the Applicant's proposals for tree removal are acceptable in relation to the potential impact on koala food trees on the Subject Site.
2. I also note that:
1. should the Proposed Development be approved, there would remain some 24 preferred koala food trees on proposed Lot 33; and
2. the Applicant has proposed specific mitigation measures within part 5.3 of its Koala Assessment Report would mitigate any direct potential impacts on koalas during the removal of trees, and these should be the subject of specific conditions of consent imposed with any approval. These measures include requirements that:
1. trees to be removed will be inspected for koalas by a suitably qualified ecologist, immediately prior to the tree's removal; and
2. if a koala is found to be present in a tree to be removed, that tree will not be removed until the koala has been relocated to an area outside the area of the development.
Are the potential tree removal impacts of the Applicant's proposed effluent disposal system acceptable?
1. The Applicant has proposed that wastewater generated by the proposed pet resort would be disposed of through a series of trenches in an effluent disposal area, located to the north of the main pet resort facility.
2. The Respondent submitted that the Applicant's Ecological Assessment Report had not had regard to that component of the Proposed Development and in relation to this:
1. the effluent area appears to extend to a point which is about ten (10) metres from the eastern boundary and ten (10) metres and variable to the northern boundary of proposed Lot 33;
2. the Ecology Assessment Report notes that the 0.03ha of vegetation proposed for removal as part of the Proposed Development was below the 0.5ha vegetation clearing threshold that would engage the Biodiversity Offset Scheme (BOS)threshold under the BC Act;
3. the Proposed Development does not comply with any criteria that was deemed necessary for preparation of a BDAR and entry into the BOS threshold;
4. it would seem that to come to this conclusion, the Ecological Assessment Report had had regard to the vegetation proposed to be removed in order to construct the pet resort building and outdoor play area but not the Applicant's proposed effluent disposal area;
5. The Applicant's Drawing A1.2, being the property plan, shows that hollow bearing trees T48 and T49 are impacted by the proposed absorption trench and effluent area, and this is also inconsistent with the recommendation in the Ecological Assessment Report that no habitat or hollow bearing trees should be removed by the Proposed Development.
1. In addition, it was the opinion of the Respondent's Ecologist, Mr Bell, that effluent disposal areas negatively impact native trees in their vicinity as a consequence of both the clearing required for their formation and by altering the soil moisture/nutrient levels in a way that causes health decline and ultimately tree death. For that reason, Mr Bell suggested that effluent disposal areas should not be sited within any tree protection zone of any tree that is proposed to be retained.
2. In response, the Applicant has proposed a condition requiring that its wastewater system be designed such that trees not to be removed and noted that the wastewater facility would require a s 68 certificate under the Local Government Act 1993 prior to issue of a construction certificate.
3. Having considered the evidence of the Parties' experts, and their submissions, I am satisfied that the potential tree removal impacts of the Applicant's proposed effluent disposal system are acceptable because:
1. I embrace the Applicant's proposal that it would accept imposition of a condition of consent requiring that the wastewater system be designed such that no trees would be removed;
2. I agree with the Applicant that the wastewater facility would require it to obtain a s 68 certificate under the Local Government Act prior to issue of a construction certificate and that this would provide a further consideration in relation to mitigating any further potential impacts from the disposal of wastewater from the pet resort such as those identified as a concern by the respondent's expert ecologist, Mr Bell (see above at [76]).
Conclusions concerning the Applicant's proposed removal of trees
1. For reasons provided above at [59]. [72] and [78], I have concluded that the Applicant's proposed clearing of trees for the Proposed Development:
1. is consistent with the provisions of both s 1.3(k) of the BC Act (see above at [27(1)]) and cl 2.10(2) in Chapter 2 (Coastal Management) within SEPP R&H (see above at [30(1)]) that require, inter alia, that the Proposed Development avoid, minimise and offset its potential impacts;
2. achieves the objective of section 4.1 of GLDCP (see above at [36(1)(a)]) as it ensures that development is designed in a manner that avoids, mitigates or offsets negative impacts on biodiversity and the quality and function of the natural environment and responds to relevant ecological constraints and opportunities; and
3. is acceptable, and so does not provide a reason for refusal of the Proposed Development.
Is the Applicant's proposed landscaping on the boundary between the Proposed Development and the southern boundary of proposed Lot 33, towards sensitive receptor R3, compliant with PfBP and can be realistically maintained?
1. The Applicant's Proposed Development includes the following landscape outcomes within the area between the proposed acoustic barrier and the southern boundary of proposed Lot 33:
1. a row of plantings along the southern boundary of proposed Lot 33 comprising, in the main, Syzygium australe plants, interspersed with Eleocarpus reticulatus plantings, with the plan noting that the final planting arrangements should be subject to a "sign-off" by an accredited Bushfire Planning And Design (BPAD) consultant;
2. the proposed removal of one Eucalyptus pilularis tree that would result in a single eucalypt being retained to the south of, and adjacent to, the Proposed Development;
3. a limb of the retained eucalypt (a Tallowwood) to be trimmed for the purpose of bushfire mitigation, as required under NSW RFS Standards for Asset Protection Zones.
1. The Applicant has also provided a landscape plan for its Proposed Development that became Exhibit F in the proceedings, and which is reproduced below:
1. The Applicant submitted that the retention of the single Tallowwood in a location adjacent to the Proposed Development would be acceptable because:
1. the Proposed Development is already located within a Bushfire Attack Level – Flame Zone (BAL-FZ), and the pet resort building would be constructed to a standard consistent with BAL-FZ requirements; and
2. maintenance of the ground storey vegetation beneath the tree to inner Asset Protection Zone (APZ) standards, along with the trimming of one limb, would mitigate bushfire risk to an acceptable level; and
3. whilst the NSW RFS standards for APZ management state that smooth barked species are preferred over rough barked species, there is no prohibition on the presence of rough barked species within APZs.
1. The Parties have also confirmed that:
1. the property is bushfire prone land, and the area where the development is proposed is categorised as "vegetation category 1" on Council's Bushfire Prone Land Map;
2. the Applicant's development application in this appeal is not for a special fire protection purpose as defined under s 100B of the Rural Fires Act 1997, and therefore application was not required to be, and has not been, referred to the NSW Rural Fire Service; and
3. the Applicant's proposed pet resort building has been designed to a BAL-FZ construction standard rating and an APZ has been identified in relation to that structure, as required by the provisions of PfBP.
1. The Respondent's expert planner, Mr Lim-Cooper, had stated in the supplementary joint report prepared with Mr Lander that:
1. the landscaping depicted in the Applicant's landscape plan does not comply with the relevant performance criteria for landscaping in APZs as detailed in the NSW RFS Standards for Asset Protection Zones (SfAPZ);
2. the landscaping proposed is not arranged in clumps, but rather forms a continuous row of vegetation, which is contrary to the landscaping guidelines contained within SfAPZ;
3. the Applicant's continuous row of vegetation in its landscaping plan provides a potential fire run in a north-easterly direction from the start of the landscaping toward the location of the proposed pet resort building; and
4. the proposed landscaping, which would be planted on the approved boundary, also provides continuation of existing vegetation located on proposed Lot 32 toward the location of the proposed pet resort building and this is contrary to Section A4.1.1 of PfPB;
5. the landscaping provides a continuous canopy through the shrubs, which is contrary to Section A4.1.2 of PfBP.
1. The Respondent had submitted that:
1. it was difficult to understand exactly what portion of the vegetation between the Applicant's proposed outdoor play area and the southern boundary of proposed Lot 33 would be retained "once the proposed development was implemented"; and
2. the Applicant's planner had suggested that there would be vegetation "maintained" but the position seemed to have changed a number of times during the course of the hearing.
1. I have considered the evidence in the proceedings, including the correspondence from the Applicant's bushfire consultant, Tattersall Lander Pty Ltd, as to actions required in order to maintain inner Asset Protection Zone (APZ) standards under PfBP and note that this would include:
1. the trimming of one limb of the remaining eucalypt (a Tallowwood);
2. ground storey vegetation management beneath the tree to mitigate bushfire risk to an acceptable level; and
3. the proposed plantings of Syzygium australe plants, interspersed with Eleocarpus reticulatus specimens, being subject to a sign-off by a BPAD accredited consultant.
1. I also note my conclusion above (at [79]) in relation to ecology matters that the Applicant's proposed clearing of trees for the Proposed Development is acceptable, and so does not provide a reason for refusal of the Proposed Development.
2. On the basis of the evidence before me ((see above at [82] and [83]) and my considerations above at [86] and [87], and noting both the BAL-FZ level of construction of the Proposed Development and the assessment of the Applicant's bushfire expert, Mr Folbigg as to what is required to management vegetation for the purposes of maintaining an APZ to the south of the Proposed Development, I am satisfied that the Applicant's proposed landscaping on the boundary between the Proposed Development and its southern boundary towards sensitive receptor R3 is compliant with the provisions of PfBP.
3. As to matters concerning the maintenance of that area, the Applicant has provided a proposed plan of management for its Proposed Development which was tendered as both within the Applicant's amended plans and other documents that formed Exhibit B in the proceedings and an annexure to the supplementary joint report of the planning experts, Mr Bob Lander and Mr Ben Lim-Cooper.
4. That plan of management includes, at section 4.5, some brief words concerning the maintenance works required in relation to bushfire mitigation.
5. However, I agree with the Respondent that this section of the plan of management should be reviewed to include more specific advice in respect of maintaining the APZ space around the Applicant's proposed pet resort to guide future management of the space, and this should include:
1. the inclusion of any maintenance recommendations made by the BPAD accredited consultant who would approve the final configuration of plantings in the space along the southern boundary of proposed Lot 33; and
2. specific references to relevant requirements for APZ management and maintenance drawn from Appendix 4 of PfBP and the SfAPZs published by the NSW RFS;
1. The incorporation of the above requirements (at [91]) into the Applicant's amended plan of management, should be:
1. the subject of a condition of consent;
2. completed to the satisfaction of an accredited BPAD consultant; and
3. completed prior to the issue of any occupation certificate issued with respect to the Proposed Development following the grant of consent.
1. The Parties have provided proposed conditions of consent that include a proposed condition 43 in relation to the plan of management for the Proposed Development.
2. That draft condition 43 is discussed in more detail below (see at [137(1)] and [139]) but I note that, within its proposed version the Applicant refers to the Plan of Management dated May 2022 prepared by Tattersall Lander Pty Ltd as the approved plan of management.
3. As a consequence of my findings above (at [91]) and elsewhere in this judgment, the management plan drafted by Tattersall Lander Pty Ltd and dated May 2022 will require revision and should not be considered final or approved until these revisions are completed and approved by the Respondent before issue of an occupation certificate for the Proposed Development.
Are the Proposed Development's potential noise impacts during the daytime hours; acceptable in relation to any future residence constructed adjacent to, and south of, the Proposed Development on Lot 32?
1. The Applicant has provided the following documentation in support of its application for a consent for the Proposed Development:
1. a report assessing potential noise impacts prepared by Neil Pennington dated May 2021; and
2. additional noise measurements at certain sensitive receptor locations undertaken by Neil Pennington on 15 March 2022.
1. The Respondent had submitted that the Applicant's acoustic reports had not identified the extent to which Proposed Development would have acoustic impacts on the amenity of the adjacent dwelling houses and the locality.
2. More specifically, and with reference to the term "adjacent dwelling houses", the Respondent's contentions in relation to noise included the potential impact of the Proposed Development on any future dwelling houses that would be built once the consented subdivision of the Subject Site was registered and sold, noting that the dwelling house that would be the closest to the proposed pet resort would be a future dwelling located within the building envelope of proposed Lot 32.
3. The Respondent also contended that:
1. insufficient information had been provided by the Applicant in relation to potential acoustic impacts such as to permit a proper assessment of the likely noise impacts of the Proposed Development on surrounding actual and potential future residences; and
2. the potential noise impacts of the Proposed Development was not compatible with residential land uses within the R5 zone, and it did not achieve the objectives of the Subject Site's R5 zoning which included:
1. minimising conflict between land uses within the R5 zone; and
2. minimising environmental impact to facilitate compatibility with residential land uses within the zone.
1. In its response to these contentions, the Applicant had provided further information in relation to the assessment of potential noise impacts (see above at [96(2)]) and this information had substantially resolved the Respondent's insufficient information contention.
2. The Applicant also submitted that it did not accept that it should be required to assess the potential noise impacts on sensitive receptor R3 because those impacts are too remote to have any practical significance in the assessment of the Proposed Development for three reasons, as follows:
1. firstly, the approved subdivision of the Subject Site has yet to be registered and there is no requirement in planning law for the Applicant to take up the benefit of the subdivision consent, and so the subdivision therefore may not occur;
2. secondly, there is no dwelling house located on R3 and it is entirely hypothetical at this point in time whether there will be at some future time, noting that:
1. the subdivision consent did not approve any dwellings and the subdivided allotments may be used for a variety of different purposes;
2. while a residential use is permissible with development consent under the GLLEP, it cannot be presumed that proposed Lot 32 will be used for that purpose;
3. at the time of this appeal there is no land use occurring on proposed Lot 32 with the consequence that there can be no conflict between uses;
1. thirdly, the Subject Site is currently under single ownership and it cannot be presumed that even if the subdivision were to be given effect that the allotments would not stay within common ownership.
1. Notwithstanding these points, the Applicant's acoustic expert, Mr Pennington, had undertaken further specific noise monitoring on the Subject Site in support of the Applicant's submission that any potential noise impacts arising from the Proposed Development were acceptable and consistent with applicable noise impact assessment policies.
2. Prior to the hearing and following the provision of the further information by the Applicant, the Parties' acoustic experts prepared a joint report which was filed on 10 May 2022 and which became Exhibit 3 in the proceedings.
3. The Parties' acoustic experts agreed within their joint report, and at the hearing, that:
1. there will be no noise impact on residences to the north of the Subject Site;
2. the sensitive receptor of greatest concern was a potential future residence on proposed Lot 32, and at the sensitive receptor location referred to as R3 located to the south of the Proposed Development; and
3. there would be no potential for a noise impact at the R3 receptor during the evening and night periods.
1. The experts differed in their assessment of the potential noise impacts at the sensitive receptor location R3 during the daytime period, being as follows:
1. In his assessment, Mr Pennington, for the Applicant, had concluded that the Proposed Development would exceed what he said was the maximum acceptable noise level for assessment of the Proposed Development as established by the Noise Policy for Industry (NPI).
2. Mr Pennington said that the maximum noise level for assessment of the Proposed Development during the day and under the NPI was 40 dBA (established on the basis of a background of 35dBA + 5dBA). He said that, in his assessment, this level would be exceeded by 2dBA, which he considered to be acceptable on the basis that the NPI in its Table 1 provided that a 2dBA exceedance was negligible in terms of perception and would not be a discernible exceedance.
3. During his oral evidence at the hearing, Mr Pennington stated that his use of the NPI as the basis for assessing noise impacts of the Proposed Development, including his use of 35dBA as the minimum assumed rating background noise level for that assessment, was both correct and, indeed, the only basis that a professional acoustician would use for such an assessment.
4. Mr Gauld stated within the acoustic experts' joint report that:
1. he had undertaken noise monitoring at 17A Kookie Avenue, Charlotte Bay, which is a property adjacent to, and north of, the Subject Site and on which was located sensitive receptor R1, and
2. he had calculated a Rating Background Level (RBL) of 30dBA in the daytime, and had opined that:
1. the Noise Guide for Local Government (NGLG), and not the NPI provided the more appropriate basis for assessing the potential noise impact of the Proposed Development; and
2. the appropriate level for the determining the acceptability of potential noise impact under the NGLG was 35 dBA (based on his calculated RBL of 30dBA plus 5dBA), and which would result in the noise exceedance being 7dBA, which he said would be an intrusive, and potentially offensive, impact at sensitive receptor R3.
1. The Respondent drew the Court's attention to the findings of Preston CJ in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 (referred to hereafter as Gloucester Resources), in which Mr Gauld appeared as an expert and in relation to which the Respondent submitted similar evidence had been adduced.
2. The Respondent further submitted that:
1. in Gloucester Resources the Chief Judge had stated (at [260]) that:
"…. I accept Mr Gauld's evidence that the mine noise levels will emerge from the background noise levels in locations where the measured background noise level is less that 30dB(A). This will make the mine noise levels more noticeable and more likely to impact the residents' acoustic amenity."
1. noting the above statement in Gloucester Resources, the Court in the current appeal should prefer Mr Gauld's use of 30dBA as the RBL for the assessment of amenity and intrusive noise impacts of the Proposed Development.
1. I have considered the evidence of the Parties' acoustic experts and their submissions and have concluded that I agree with the Respondent that Mr Pennington's use of the NPI as the appropriate basis for assessment of potential noise impacts of the Proposed Development for the following reasons:
1. as stated within its Introduction, the NPI is "designed for large industrial and agricultural sources and specifies substantial monitoring and assessment procedures that may not always be applicable to the types of sources councils need to address. However, local government may find the policy helpful in assessing noise from premises it regulates and in the carrying-out of its land-use planning responsibilities as outlined in Section 1.1.1.";
2. section 1.1.1 notes that one of those planning responsibilities is development consents, in relation to which it states:
"Planning authorities can use development planning and approval processes to avoid impacts on the community from noise by ensuring that industrial developments have reasonable environmental performance requirements that are practical and socially and economically viable for the development locality";
1. the NGLG is a document that predates the NPI, and which, as provided within its introduction:
1. is advisory in nature, and encourages council officers to use it to develop council procedures or policy to deal with noise issues relevant to local circumstances; and
2. notes that the NPI's predecessor, the NSW Industrial Noise Policy, is specifically aimed at large industrial developments, but also provides guidance on measuring and assessing noise from small commercial and industrial premises regulated by councils;
1. notwithstanding the reference above (at [107](1)) from Gloucester Resources, I note that Preston CJ applied the NPI in his assessment of noise in that appeal, and in relation to which he noted (at [231] from Gloucester Resources) that:
"The background noise level to be used for assessment purposes is to be determined by the method outlined in Fact Sheets A and B to the Noise Policy for Industry…";
1. applying the framework of the NPI, Preston CJ also noted within Gloucester Resources (at [259]) that:
"I find that the predicted noise levels from the Rocky Hill Coal Project will comply with the recommended amenity noise levels and project intrusiveness noise levels in the Noise Policy for Industry."
1. Based on my agreement with the Applicant's submission that the NPI is the appropriate framework for assessment of the potential noise impact of the Proposed Development, and having considered the evidence of the Parties' acoustic experts, I am satisfied that:
1. the potential noise impacts of the Proposed Development have been correctly assessment by Mr Pennington;
2. consistent with the agreed evidence of the Parties' acoustic experts, the Proposed Development will not have an adverse impact in relation to amenity or intrusive noise levels on any existing residence on or surrounding the Subject Site;
3. consistent with the evidence of Mr Pennington, the potential impact of the Proposed Development will exceed the amenity noise level at receptor R3 by 2dBA, which I agree would be a level that is indiscernible from a level of 40dBA, and so is acceptable;
1. Finally, I note that at [263] of Gloucester Resources, Preston CJ stated that:
"The noise impacts of the mine, although not a ground in itself to refuse the development application for the Rocky Hill Coal Project, nevertheless do contribute to adverse social impacts that are a ground for refusal."
1. I also agree that in this appeal the potential noise impacts of the Proposed Development are insufficient in themselves to refuse the Applicant's development application, and while the noise impacts may similarly contribute to adverse social impacts, I note that:
1. the Parties' acoustic experts agreed that there will not be any noise impacts on existing neighbouring residences around the Subject Site; and
2. there are no residents currently living south of the Proposed Development on proposed Lot 32 who might otherwise have provided a submission and upon which any stronger basis for consideration of potential social impacts might have been established.
1. Further, any future residence on proposed Lot 32 will require a further development consent, at which time the potential of the pet resort on proposed Lot 33 can be assessed.
2. Finally, I note that the Applicant has proposed conditions 51 and 52 in relation to mitigating potential noise impacts on a future residence on proposed Lot 32 and which I have agreed should be imposed with the grant of consent (see below at [164]).
Is the Applicant's proposed plan of management acceptable and can future compliance with its provisions be reasonably anticipated?
1. As noted above, the Applicant has provided a proposed plan for management prepared by Tattersall Lander Pty Ltd in May 2022, and I have already made certain findings (see above at [91] and [92]) that will require this document to be amended through the provision of supplementary information.
2. The proposed plan of management provides, inter alia, certain protocols for the dropping off, collection and management of dogs by clients of the proposed pet resort.
3. The Respondent submitted that:
1. whilst some of the requirements provided within the proposed plan of management be readily achievable, including requirements related to the number of dogs that can be present in the outdoor play area at particular times as well as requirements for keeping dogs inside the resort between 6pm and 7am in the morning, others may be outside the control of the Applicant and the resort's management team, including:
1. the times at which dogs are dropped off or collected; and
2. the number of vehicles that may be parked within the carpark at any one time.
1. the Applicant's assessment of potential noise impacts, and the acceptability of those outcomes, was dependent upon the protocols identified in the proposed plan of management being achieved, including that its clients would adhere to times provided to clients for the drop off and collection of dogs;
2. it was unreasonable to anticipate the requirements of the Applicant's proposed plan of management would be achieved and therefore, it was also unlikely that the Proposed Development's potential noise impacts would be those modelled by the Applicants noise expert, and which I have found to be acceptable.
1. The Respondent also drew the Court's attention to the joint report of the Parties' planning experts in which they had had regard to the provisions of the findings of Commissioner Brown in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 (hereafter referred to as 'Renaldo') in which at [54] the Commissioner had identified a number of questions for consideration within plans of management as follows:
"54 In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered:
1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?
2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?
3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?
4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?
5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?
6. Is the Management Plan to be enforced as a condition of consent?
7. Does the Management Plan contain complaint management procedures?
8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?"
1. The expert planners had:
1. agreed that:
1. in relation to the Renaldo question 4, the requirements in the Applicant's plan of management require absolute compliance to achieve an acceptable outcome;
2. in relation to the Renaldo question 7, that the plan of management does not contain a complaint management procedure; and
3. in relation to Renaldo question 8, the plan of management does not contain a formal procedure for updating and changing the plan; but
4. the plan's inadequacies in relation to Renaldo questions 7 and 8 could be remedied by way of imposing a condition requiring the Applicant to update the plan in response to the comments of the Parties' expert planners; and
1. disagreed that the Applicant's proposed plan of management had adequately addressed the second of the Renaldo questions which related to whether the plan of management would require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case, noting that it was Mr Lim Cooper's evidence that:
1. the Applicant's plan of management would require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case;
2. it would be challenging for the Applicant to manage the number of vehicles and dogs in the carpark during any 15 minutes period as required under the plan of management, and as required to achieve compliant outcomes with respect to potential noise impacts.
1. Applicant submitted that:
1. contrary to the evidence of Mr Lim-Cooper, there are no requirements within the proposed plan of management that would require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case because:
1. the operational requirements of the plan can be readily understood by the operators and employees of the pet resort;
2. the plan proposes that a questionnaire be completed by first time boarders to facilitate proactive identification and management of any client dog behavioural issues;
3. it will not be difficult for operators or employees of the pet resort to identify behavioural issues in any of the dogs to ensure that management procedures are implemented;
4. the plan of management requires the supervision of dogs in the outdoor play area at all times, and Mr Lim-Cooper's opinion that this unlikely is not based on facts such as evidence of operations in similar facilities;
5. any dog that continuously barks will be readily identifiable through both the passive and active management of the outdoor play area;
6. it would be in the best interests of the operators for the dogs to be supervised in the outdoor play area to minimise noise impacts and to supervise interactions between the dogs as required by the plan of management;
7. while the proposed plan of management summarises the cumulative worst case scenario for traffic movements assessed in the Applicant's acoustic report, the Proposed Development would generate 10 inbound and 10 outbound vehicle trips per day which is not a large number of movements to manage; and
8. any breach of the plan would be readily identifiable, and the most likely impacts that those arising in relation to dogs continuously barking the outdoor play area and these will be identifiable by staff through active and passive management measures.
1. the proposed plan of management contains a detailed complaint management procedure that states that its register of complaints will be available to the Respondent upon request;
2. contrary to the evidence of Mr Lim-Cooper, the plan expressly provides that it is "to be a working document that is to be regularly reviewed by operators to ensure that it is a main reference document for the operations of the facility as well as an instruction training resource for the staff"; and
3. it would accept the imposition of a condition of consent requiring that the Applicant's plan of management should be the subject of yearly review, if the Court considers a more detailed procedure is appropriate.
1. Having considered the evidence of the Parties' expert planners and their submissions, I am satisfied that:
1. the Applicant's proposed plan of management should, through imposition of a condition of consent, be amended to:
1. respond to the requirements identified above (at [91] and [92]) in relation to mitigation of potential bushfire impacts;
2. include a new section 4.7 entitled "Complaints Management Procedure" and which should include as a minimum:
1. a contact name, along with telephone and website details by which complaints can be lodged in relation to the proposed pet resort;
2. a statement of commitment to minimum times within which a complainant would receive a response from management of the pet respect to complaints received;
3. the details of complaints to be recorded by the pet resort on its complaints register, which can be those provided under section 4.1 concerning noise;
4. confirmation that the complaints register will be kept up to date, including details of responses provided to complainants and the time by which the response was provided, and that the register will be made available to the Respondent Council upon request and within 24 hours (one working day) of the request being received;
1. include a new section 4.8 entitled "Plan of Management Review" that will included:
1. a commitment to annual review of the plan of management as proposed by the Applicant (see above at [118(4)]);
2. a commitment to seek input to the review from current and future neighbours of the pert resort;
3. a commitment to include within the review a statement of how the review has responded to any complaints received during the year preceding the review date.
1. the Applicant's amended plan of management in response to the above points (at [(1)]) should be finalised before the issue of any occupation certificate for the Proposed Development, and:
1. a draft of the amended plan should be submitted to the Respondent Council for approval prior to its finalisation:
1. based on the above findings, and completion of the required actions therein, at [(1)] and [(2)], the Applicant's plan of management for its proposed pet resort is acceptable.
Is the potential visual impact of the acoustic barrier around the outdoor play area acceptable?
1. As previously noted in this judgment, the Applicant has proposed the installation of an acoustic barrier, with a height of 3m, to mitigate potential noise impacts of the Proposed Development, particularly in relation to the proposed outdoor play area.
2. I have already considered and resolved matters related to the potential noise impacts of the Proposed Development (see above at [109]) which relies, in part, on the presence of the proposed acoustic barrier to achieve the noise impact outcomes that I have already determined to be acceptable.
3. The Respondent, relying on the evidence of its expert planner, Mr Lim-Cooper, had submitted that:
1. an acoustic barrier or fencing with a height of three metres or greater was not typical of fencing in the immediate locality or a rural/residential setting and was therefore not in keeping with the rural/residential character of the Subject Site;
2. the acoustic barrier would have an unacceptable visual impact when viewing the Proposed Development from the south, and in particular from the position of a future dwelling on proposed Lot 32;
3. the provision of additional landscaping, together with the existing vegetation could not effectively achieve a buffer such that the potential visual impacts of the proposed acoustic barrier would be successfully mitigated.
1. During his oral evidence at the hearing, Mr Lim-Cooper continued to express his concern in relation to:
1. the potential visual impact of the proposed acoustic barrier and again questioned whether the landscaping could achieve a satisfactory visual buffer; and
2. whether the Proposed Development achieved objective (e) of the Subject Site's R5 zoning regarding whether the development would have minimal environmental and visual impact and be compatible with the residential land uses within the Zone.
1. The Respondent submitted that:
1. under the provisions of a subdivision certificate, the Applicant would be permitted to clear vegetation within three metres of a boundary fence and that when this is combined with the Applicant's proposed removal of five trees and pruning of a further tree to comply with bushfire mitigation requirements. The level of existing vegetation retained on that southern boundary could not be relied upon to provide a visual buffer to the acoustic barrier;
2. as a consequence of the above points (at [(1)]), any visual relief of the acoustic barrier would need to come from the landscaping as proposed on the Applicant's landscape plan; and
3. the plants which were proposed for planting could not be relied upon to provide screening until such time as they grew to a level that did in fact screen three metre acoustic barrier and:
1. until then, the barrier would be an typical structure in a rural/residential environment; and
2. the acoustic barrier would not be compatible with other structures in the area.
1. The Applicant submitted that Mr Lim-Cooper's evidence in relation to the visual impact of the acoustic barrier should not be accepted for the following reasons:
1. the highest that Mr Lim-Cooper put his evidence was that the acoustic barrier is "likely" to have a visual impact, and this was speculative because the acoustic barrier must either have a visual impact which is unacceptable, or it will not have an impact;
2. further, Mr Lim-Cooper:
1. does not refer to any planning controls in the GLLEP or the GLDCP that seek to control acoustic barriers in semi-rural/rural environments and that apply to this application;
2. has not explained how he has reached his opinion or has he carried out an assessment of the visual impact of the acoustic barrier from the adjoining dwellings or demonstrated to the Court his opinion by reference to objective evidence;
3. accepted during cross examination that any dwelling on proposed Lot 32 would be orientated away from the Proposed Development and therefore even accepting the acoustic barrier may be partially visible from certain vantage points on proposed Lot 32, it will not reduce the amenity of any future dwelling on that lot;
4. accepted during cross examination that it was only the acoustic barrier not the entire pet resort building which was visually offensive;
5. failed to explain why or how users of the proposed facility would be visually impacted by an acoustic barrier in any greater way than they would by any other part of the building when it will be constructed of the same material as the building walls, and other built form elements will have a greater height and massing than the acoustic barrier;
1. the acoustic barrier is not a fence and it should not be treated as such as it would serve a very different purpose and the comparative assessment undertaken by Mr Lim-Cooper should be given little, if any, weight;
2. consistent with the evidence of Mr Lander, the acoustic barrier would be well protected visually from the access road to the pet resort and surrounding properties by its location, along with the surrounding dense and well established vegetation;
3. the acoustic barrier could not be seen from any existing adjoining properties, and only a small portion of the western wall will be visible in the north-eastern corner of proposed Lot 32 and this will appear as a part of the overall roof of the pet resort;
4. the acoustic barrier would not be visible from within the approved building envelope on proposed Lot 32, and Mr Lander's evidence is supported by his visual impact assessment provided within Exhibit B in the proceedings;
5. Mr Lander had provided evidence that even if part of the acoustic barrier were seen, it would not be offensive because the acoustic barrier is proposed to be constructed of Hebel panel which is a type of material that is common in rural bush fire prone areas and will therefore not cause offense, and it is also consistent with the material to be used for the principal pet resort building;
6. Mr Lander had stated that the acoustic barrier could be painted to ensure that it fades into the background and surrounding vegetation which can be conditioned as part of any development consent.
1. Having considered the Parties' submissions and the evidence of their expert planners, and taking account of my own inspection of the Subject Site, I am satisfied that:
1. the potential visual impact of the proposed acoustic will be minor as was confirmed, in my assessment, at site view, and for the reasons provided by the Respondent above (at [125(4)] to [125(7)]) which I adopt;
2. the Applicant's proposed acoustic barrier will not be visually intrusive and will, in the main, not be visible to any current or future residence on an adjoining lot;
3. the Applicant's proposal (see above at [125(8)]) that a condition be imposed with the grant of consent requiring that the proposed acoustic barrier be painted in such a way that it "fades into the background and surrounding vegetation" should be adopted, with the further requirement that the Applicant's choice of colour be confirmed following consultation with the Respondent Council.
Is the Proposed Development consistent with the objectives of the R5 Large Lot Residential zoning of the Subject Site GGLEP?
1. The Subject Site is zoned R5 Large Lot Residential, and by virtue of cl 2.3 of GLLEP the consent authority, or the Court on appeal, to have regard to the objectives for the zone when determining a development application within that zone.
2. The zone objectives for the R5 zone were provided above (at [26(1)(b)], and those of particular relevance in relation to contentions between the Parties are the following:
• To minimise conflict between land uses within this zone and land uses within adjoining zones; and
• To enable development that has minimal environmental and visual impact and is compatible with residential land uses within the zone; and
• To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.
1. The Council's contention in relation to the whether the Proposed Development was acceptable having regard to the objectives of the R5 zoning of the Subject Site raised a concern as to whether the noise from the Proposed Development would conflict with the existing residential land uses within the R5 zone, or whether the potential noise impacts of the development would result in a significant environmental impact.
2. Whilst not specifically raised as a contention, as a result of changes to the Applicant's plans and in response to questions from the Court, the potential impact of the Proposed Development on the existing vegetation on the Subject Site has also been considered.
3. I have already confirmed in this judgment that:
1. the potential impacts of the Proposed Development on trees and broader ecology matters on the Subject Site are acceptable (see above at [79]);
2. the potential noise impacts of the Proposed Development are acceptable, noting that the Parties' acoustic experts agreed that the Proposed Development would not give rise to noise impacts with respect to any existing residence on the Subject Site or on adjacent lots (see above at [109]);
3. the Proposed Development would not give rise to any potential visual impacts as might be perceived from neighbouring properties or on the Subject Site (see above at [126]).
1. As a consequence, I am satisfied that the Proposed Development is acceptable having regard to the objectives of the R5 zoning of the Subject Site.
Conclusion in relation to principal contentions in the appeal
1. In summary, and for the reasons provided above, I find that:
1. the Applicant's proposed clearing of trees for the Proposed Development is acceptable in relation to:
1. the construction of the proposed acoustic barrier at the southern side of the outdoor play area, for reasons provided above (at [58]);
2. the potential impact on koala food trees on the Subject Site, for reasons provided above (at [72]); and
3. the Applicant's proposed effluent disposal system, for reasons provided above (at [78]);
1. the Applicant's proposed landscaping on the boundary between the Proposed Development and a potential future residence within the building envelop identified on proposed Lot 32, adjacent to on the sensitive receptor R3, is compliant with PfBP and can it be realistically maintained for reasons provided above (at [88] and [91]);
2. the Proposed Development's potential noise impacts during the daytime hours are acceptable in relation to any future residence constructed adjacent to, and south of, the Proposed Development on proposed Lot 32 for reasons provided above (at [109]);
3. the Applicant's plan of management, and subject to certain amendments, is acceptable, and compliance with its provisions can be anticipated, for reasons provided above (at [119]);
4. is the potential visual impact of the proposed acoustic barrier around the outdoor play area is acceptable for reasons provided above (at [126]);
5. the Proposed Development is acceptable having regard to the objectives of the R5 Large Lot Residential zoning of the Subject Site under the provisions of GGLEP for reasons provided above (at [132]).
1. I am further satisfied that, based on these findings, and having had regard to the objectives of the R5 zoning of the Subject Site, there is no basis to refuse the Applicant's development application, and so determination of the Applicant's Proposed Development, as amended, by the grant of consent, subject to conditions, is in the public interest.
Other matters
Conditions of consent
1. I have already made findings in this judgment that would require the Parties to preparer certain conditions of consent to reflect conclusions reached in relation to the principal contentions in the appeal, and these include:
1. conditions concerning the mitigation of potential impacts of tree clearing (see above (at [73(2)]);
2. conditions concerning the mitigation of potential impacts on trees in relation to the location of the Applicant's proposed wastewater management system (see above (at [78]);
3. conditions concerning bushfire mitigation and the requirements for amendment to the Applicant's plan of management (see above at [92]);
4. a condition in relation to the amendment of the Applicant's plan of management (see above at [119(1)]);
5. a condition in relation to the colour of the Applicant's proposed acoustic barrier (see above at [126(3)]).
1. During the hearing the Parties tendered competing draft proposed conditions of consent, and at the conclusion of the hearing, the Court directed that the Parties file consolidated agreed conditions of consent for the Court's consideration should the Court be minded to determine the appeal by the grant of consent to the Proposed Development.
2. The Parties did file these consolidated conditions as directed and have identified those conditions which they have been unable to agree. The conditions remaining in dispute between the Parties are the following:
1. Condition 43, concerning the Applicant's plan of management;
2. Condition 45, concerning the outdoor play area hours of operation;
3. Condition 47, concerning the review of noise attenuation methods
4. Condition 48, concerning project noise levels;
5. Condition 49, concerning noise, and more particularly offensive noise;
6. Conditions 51 and 52, proposed by the Applicant, in relation to noise mitigation and notification of requirements for proposed Lot 32 and the future owners of any residence on that lot;
7. Condition 53 in relation to bushfire mitigation requirements.
1. These are considered ad seriatum below.
Conditions 43 and 45
1. Proposed condition 43 concerns the plan of management that is to guide operations of the pet resort, and I have already made findings (see above at [119(1)] and [135(4)]) that require the Applicant's proposed plan of management prepared by Tattersall Lander Pty Ltd and dated May 2022 to be amended prior to the issue of any occupation certificate for the Proposed Development.
2. The draft condition 43 proffered by the Parties should be amended to include the requirements for revision of the plan identified in this judgment.
3. In addition, the first paragraph of that condition should be amended to read:
"Prior to the issue of an occupation certificate the Plan of Management dated May 2022 prepared by Tattersal Lander Pty Ltd for the ongoing use of the development must be amended to include the following matters prior to being submitted to the consent authority for approval:"
1. The Parties should then list the matters requiring amendment drawn from this judgment, including the requirement the recommendations made for the complaint management procedure identified above (at [119]), with the requirements in the final paragraph of the draft condition which reads:
"The plan shall also incorporate a complaint management system, which includes (but is not limited to) communication with neighbouring residents, 24hour contact details to be provided to neighbouring residents, recording of all complaints received, details of all actions taken to investigate and address complaints and details of the response provided to the complainant."
1. The condition should then conclude:
"The Plan of Management must also describe the measures that are to be implemented to ensure:
• Best practice management is being employed;
• Compliance with noise criteria in this consent and prevent offensive noise;
• Compliance with approved hours of operation and use of external areas including the drop off and collection of dogs shall only be permitted between the hours of 8am-10am and 1:30pm -5pm daily;
• No more than three (3) dogs are to use the outdoor play area at any one time;
• No more than three (3) dogs are to be in the carpark area at any one time;
• Solid waste and wastewater is to be appropriately managed;
• Staff are to be onsite and contactable at all times;
• A procedure for yearly review; and
• Address any amendments to the development application made under these conditions of development consent."
1. I note that the inclusion of the words concerning the drop off and collection of dogs as part of the third dot point above, resolves the Parties' difference in relation to proposed condition 45.
Condition 47
1. The Respondent has proposed a condition 47 in the following form:
"Submit to Council a report from an acoustic engineer one month after commencement of the development which:
a)Assesses noise emission from the development;
b)Reviews the effectiveness of the noise attenuation methods;
c)Assesses compliance or otherwise with the appropriate maximum noise levels as specified in this consent; and
d)Includes an assessment to determine if the development is producing 'offensive noise' as defined by the Protection of the Environment Operations Act (1997). An offensive noise assessment shall be undertaken addressing the six questions set out in the 'Offensive noise test: checklist of considerations' in the Noise Guide for Local Government (2013)."
1. The Applicant has proposed the deletion of point (d) above on the basis that:
1. the assessment and management of offensive noise is not a matter for assessment under the EP&A Act;
2. the Respondent is seeking to control matters under the planning scheme that are not considered necessary for assessment under the planning scheme applicable to the Proposed Development under the EP&A Act;
3. the appropriate assessment under the planning scheme is against the project noise criteria as determined by the Court.
1. The Respondent seeks to maintain point (d) because, in its submission:
1. while the development may comply with the projected noise criteria, it may still be a source of offensive noise;
2. the Applicant, it claims, held the position throughout the hearing that it is appropriate for offensive noise to be assessed after the development is operational and this condition seeks to do achieve that outcome.
1. Having considered the submissions of the Parties, I agree with the Applicant that point (d) of proposed condition 47 should not be imposed because:
1. I have considered the potential noise impacts of the Proposed Development and for reasons provided above (at [109]) determined that these are acceptable on the basis of the applicable assessment criteria under the NPI;
2. the matter of offensive noise and its management, should it arise, is one for the Respondent Council to assess and manage following the grant of consent, and in a manner guided by the NSW EPA's NGLG, and in response to issues that may arise through and in response to, for example, the complaints management process that is to be provided within the Applicant's amended plan of management (see above at [142]).
3. for these reasons the proposed point (d) of the condition does not serve, in my assessment, a planning purpose, and so should not be imposed with the grant of consent.
1. The Parties also did not agree in relation to whether the condition should refer to "Maximum Noise Levels" or "Project Noise Levels", and consistent with my findings below (at [151]) in relation to proposed condition 48, I prefer that point (c) of the condition should reference "Project Noise Levels"
2. As a consequence, the condition 47 to be imposed should read:
"Submit to Council a report from an acoustic engineer one month after commencement of the development which:
a) assesses noise emission from the development;
b) reviews the effectiveness of the noise attenuation methods; and
c) assesses compliance or otherwise with the Project Noise Levels as specified in this consent".
Condition 48
1. As noted above, the Parties could not agree on the title for this condition, and I adopt the Applicant's preference for "Project Noise Level" as the use of "Maximum Noise Levels" within the first sentence of the condition may, in my view, seem tautological given that the condition as drafted requires that the noise from the project not exceed the levels provided in the table which follows.
2. In relation to the date in the table, I am satisfied that this should read as proposed by the Applicant as these figures reflect the basis upon which the assessment of noise was assessed in this judgment. The table would then read:
Location Day Evening Night
R1, R3 40 dB(A) 35dB(A) 35dB(A)
1. In relation to the note that follows the table, this should read as follows given that I have found, consistent with the Applicant's submission, that a 2dBA exceedance of the daytime Project Noise Level would not be a discernible difference for the purposes of the Proposed Development:
"Note:
Day is: 7am to 6pm Monday to Saturday; 8am to 6pm Sundays and Public Holiday and an exceedance of no more than 2dBA in the daytime noise level is considered acceptable.
Evening is: 6pm to 10pm daily
Night is: the remaining periods
Noise levels are to be measured in accordance with the NSW Environment Protection Authority - Noise Policy for Industry 2017".
Condition 49
1. The Respondent has proposed a condition in the following form, which the Applicant submits should not be imposed for the same reason that it objected to the imposition of point (d) of proposed condition 47:
"49. Noise
Noise associated with the premises including all associated mechanical plant and equipment must not be a source of "offensive noise" at the nearest affected premises:
"offensive noise" is defined under the Protection of the Environment Operations Act 1997 as noise:
a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances:
i. is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or
ii. interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or
b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulation.
Reason: To maintain acoustic amenity to adjoining properties."
1. I am satisfied that the Respondent's proposed condition 49 should not be imposed for the same reasons (see above at [148]) upon which I relied in relation to my finding that point (d) of proposed condition 47 should not be imposed.
Condition 51 and 52
1. The Applicant has proposed the imposition of conditions 51 and 52 that would impose obligations on the entity with the benefit of a consent for the Proposed Development to assess certain potential noise impacts in relation to a potential future consent for a dwelling to be constructed on proposed Lot 32, and to notify a future owner of proposed Lot 32 should an occupation certificate be issued in relation to the Proposed Development.
2. The Respondent opposes the imposition of these conditions on the basis that proposed condition 51 addresses potential internal noise impacts and internal noise impacts have not been assessed, and because the condition is not practical.
3. The Respondent also imposes the imposition of proposed condition 52 in relation to notification to proposed Lot 32 should an occupation certificate be issued because it is conditional on the acceptance of condition 51, which it opposes, and which it says is impractical.
4. The Applicant has noted that it is difficult to understand why the Respondent would oppose imposition of these proposed conditions given their potential to provide ameliorative benefits to a future owner and occupant of a residence on proposed Lot 32.
5. I am satisfied that, consistent with the submission of the Applicant there is ameliorative benefit that would flow from the Applicant's offer to accept imposition of proposed conditions 51 and 52, and I agree that these two conditions should be imposed in the form proposed by the Applicant, noting at their conclusion the following:
"Reason: To maintain acoustic amenity to adjoining properties."
Condition 53
1. The Respondent has proposed the imposition of a condition 53 in the following form:
"Prior to the issue of an occupation certificate, the building is to be constructed in accordance with Bushfire Attack Level Flame Zone as defined in Australian Standard AS 3959- Construction of buildings in bushfire-prone areas and section A3.7 Addendum Appendix 3 of 'Planning for Bush Fire Protection 2019'."
1. The Applicant submitted that it does not consider the condition to be necessary as its requirements are already addressed through the imposition of proposed condition 8.
2. The Respondent submitted that the proposed condition 52 should be imposed because, notwithstanding condition 8, condition 53 requires that the dwelling is to be constructed to the BAL FZ level of construction.
3. Having considered the Parties' submissions, I agree with the Respondent that, whereas proposed condition 8 requires that the plans and specifications detailing the construction of the pet resort building to BAL FZ level of construction, the pet resort must be submitted to and approved by the certifying authority. The purpose of proposed condition 53 is that the Council should receive a form of certification that the pert resort as built satisfies the BAL FZ standard of construction.
4. To that end I am satisfied that a condition in the following form should be imposed with the grant of consent:
"53 Bushfire mitigation requirements
Prior to the issue of an occupation certificate, the pet resort building and associated structures are to be certified, by a an appropriately qualified person, as having been constructed in accordance with Bushfire Attack Level Flame Zone as defined in Australian Standard AS 3959- Construction of buildings in bushfire-prone areas and section A3.7 Addendum Appendix 3 of 'Planning for Bush Fire Protection 2019'.
Reason: To improve bush fire safety."
Provisions of Great Lakes Development Control Plan 2014
1. As noted above (at [36]) the provisions of GLDCP are of relevance in this appeal.
2. The Respondent raised no specific contentions in relation to the compliance or otherwise of the Proposed Development with the applicable provisions of GLDCP.
3. I note that the Respondent's original reasons for refusal of the Applicant's development application and its review of that determination under s 8.2 of the EP&A Act included no reason associated with compliance or otherwise with the provisions of GLDCP.
4. For completeness, I am satisfied that the Proposed Development is compliant with the applicable provisions of GLDCP, including those identified above (at [36]), and the objectives of those parts of GLDCP are achieved by the Proposed Development, as amended.
Further jurisdictional consideration
1. The Proposed Development is subject to several jurisdictional preconditions which are satisfied for the following reasons:
1. In relation to the provisions of ss 2.10 and 2.11 of the SEPP R&H relating to development on land within the coastal environment area;
1. in relation to the provisions of s 2.10:
1. the Applicant has proposed that stormwater generated by the Proposed Development will be treated and dispersed on-site;
2. the Applicant has also provided a Wastewater Management Plan prepared by Whitehead and Associates dated 29 January 2020 confirming that the Proposed Development is in compliance with the Respondent's draft development assessment framework for on-site sewerage management;
3. there is not likely to be a significant adverse impact on the environment and the Applicant has confirmed that it would accept a condition of consent requiring no tree removal as part of installing its proposed wastewater disposal system (see above at [78(1)]);
4. the Subject Site is located approximately 400m from Wallis Lake which is separated by establish semi-rural residential allotments and dense vegetation and therefore there is unlikely to be any adverse impacts on marine vegetation; and
5. the Subject Site is not located near any existing public open space and will not impact on any existing public open space to and along the foreshore, beach, headland or rock platform;
6. having considered the above, I am satisfied that the Proposed Development is not likely to cause an adverse impact in relation to the matters identified in subs 2.10(1)(a) to (g) of SEPP R&H;
1. in relation to the provisions of s 2.11, I am satisfied that the Proposed Development has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development and it is designed, sited and will be managed to avoid adverse impacts in relation to:
1. existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, noting that the Subject Site is located 400m from Wallis Lake and the proposed Development will not impede access to the lake;
2. overshadowing, wind funnelling or view loss from any public place to foreshore areas including those associated with Wallis Lake;
3. the visual amenity and scenic qualities of the coast, including coastal headlands; and
4. any aboriginal cultural heritage, practices or places or the cultural and built environment;
1. in relation to the provisions of s 4.6 of the SEPP R&H regarding the contamination of the Site:
1. The Applicant has provided a letter from Tattersall Lander Pty Ltd dated 1 June 2022 (which was Appendix H to the supplementary joint expert report of the Parties' planners) which provided evidence that the Subject Site has not been previously used for any other use but for a dwelling that was constructed around 1980 and which remains today;
2. the Parties' planning experts agree, and I am satisfied, that the Subject Site is free from contamination and satisfies the provisions of s 4.6 SEPP R&H;
1. in relation to the provisions of cl 7.1 of GLLEP regarding acid sulfate soils, the part of the Subject Site where the Proposed Development is to be located is mapped as containing Class 5 acid sulfate soils, and in relation to this:
1. the Proposed Development is located not within 500m of adjacent Class 1, 2, 3 or 4; and
2. the Proposed Development is not likely to lower the water table below 1m on adjacent Class 1, 2, 3, or 4 land, and therefore
3. there is no requirement for the Applicant to provide an acid sulfate soils management plan in relation to the Proposed Development;
1. in relation to the provisions of cl 7.2 of GLLEP regarding earthworks ancillary to development, the provisions of this clause have been satisfied by the Applicant (see above (at [22]) as follows:
1. the Applicant has provided a letter dated 2 June 2022 from Adrian Verela, a senior design engineer of Tattersall Lander Pty Ltd which provides evidence that the Applicant's proposed earthworks comprise minor excavations for the installation of the wastewater system and levelling to create the car park, and which confirms that:
1. the earthworks will not disrupt or detrimentally affect drainage patterns and soil stability in the locality of the development;
2. the earthworks will not affect future use of the Subject Site;
3. no excavated material will be transported from the Subject Site;
4. the earthworks will be undertaken in an area of low probability of disturbing any relics and are not located in proximity of a waterway, drinking water catchment or an environmentally sensitive area; and
5. will be consistent with final conditions imposed with a grant of consent to the Proposed Development;
1. in relation to the provisions of cl 7.5 of GLLEP regarding storm water management the Applicant has provided a Water Sensitive Design Strategy which provides a stormwater management plan that I am satisfied demonstrates that each of mandatory considerations under cl 7.5(2) of GGLEP are satisfied;
2. in relation to the provisions of cl 7.21 of GLLEP regarding essential services the Subject Site is serviced by essential infrastructure required under this clause noting that:
1. electricity and potable water are available to the Proposed Development; and
2. the Subject Site is serviced by suitable vehicular access; and
3. the Proposed Development will also be serviced by an on-site sewerage management system which I have found (see above at [78]) to acceptable.
1. at the time of lodgement the provisions of cl 7.3 of GLLEP in relation to flood planning applied to the Applicant's development application in this appeal, and in relation to this:
1. clause 7.3 of GLLEP was repealed on 14 July 2021 by State Environmental Planning Policy Amendment (Flood Planning) 2021 and on the same day, the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 commenced which introduced a standard cl 5.21 into the provisions of GLLEP;
2. the Applicant's development application is saved from consideration under the new cl 5.21 of GLLEP pursuant to cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006.
3. notwithstanding that there are no provisions of GLLEP concerning flood management that apply to the Proposed Development, it may nonetheless be a matter of relevance under the public interest, and in relation to this:
1. I note that the Respondent has not raised a contention in relation to flood planning on the Subject Site; and
2. objectors who spoke at the site view, identified concerns that reflected the Respondent's contentions in these proceedings, including in relation to noise impacts, environmental impacts, sewerage treatment issues and proximity of the development to residential dwellings, the visual impact of the structure and the conflict of the pet resort with residential uses on adjoining land and the objectives of the GLDCP; but
3. the matter of flood planning was not a matter raised by objectors.
Conclusions
1. On the basis of my assessment and conclusions above in this judgment, I am satisfied that, having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act, the Proposed Development can be approved because:
1. all contentions in the appeal have now been resolved (see above at [133]);
2. approval of the Applicant's Proposed Development, as amended, is appropriate having regard to the objectives of the R5 zonings of the Subject Site (see above at [134]);
3. all jurisdictional matters of which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied (see above at [170]);
4. approval of the Proposed Development, as amended, is in the public interest.
1. As is evident from the findings in this judgment, it will be necessary for the Parties to review their filed consolidated conditions and to prepare final agreed conditions of consent that reflect the conclusions of this judgment such that final orders can be made in this appeal.
2. As a consequence, the Court makes the following directions:
Directions
1. The Court directs:
1. the Parties are to file final agreed conditions of consent that are consistent with the conclusions of the Court (see above at [171]) by no later than Friday 27 January 2023;
2. this matter is listed for mention on Monday 30 January 2023 at 4:15pm by telephone;
3. if the Parties comply with the terms of the direction above at (1), then the listing on Monday 30 January 2023 will be vacated;
4. the Parties are granted liberty to restore on 3 days' written notice.
…………………………..
M Chilcott
Commissioner of the Court
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Decision last updated: 23 December 2022