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Land and Environment Court
New South Wales
Medium Neutral Citation: Martin v Tweed Shire Council [2025] NSWLEC 1076
Hearing dates: 29, 30 August, 22 October, 14 November 2024
Date of orders: 13 February 2025
Decision date: 13 February 2025
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The applicants are to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed, in respect of the amendments made on 30 August, 3 October and 22 October 2024.
(2) The appeal is dismissed.
(3) Development consent for Development Application DA21/0807 for the use of three existing dwellings and two sheds and construction of a fourth dwelling, including pavilion (shade structure) and pool at 160 Richards Deviation, Dunbible, is refused.
(4) The exhibits are returned, except for 1, 3, B, L, Q.
Catchwords: DEVELOPMENT APPLICATION – rural land sharing community – permissibility - bushfire
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7, 8.10, 8.14, 8.15, 10.3
Land and Environment Court Act 1979, ss 17, 34, 39
State Environmental Planning Policy (Primary Production) 2021, Sch 5, 6, cll 2, 6,
State Environmental Planning Policy (Primary Production and Rural Development) 2019, Sch 5
Tweed Local Environmental Plan 2014, cll 1.8A, 7.10
Cases Cited: Minton v Shoalhaven City Council [2024] NSWLEC 1548
Category: Principal judgment
Parties: John Martin (First Applicant)
Bonita Martin (Second Applicant)
Tweed Shire Council (Respondent)
Representation: Counsel:
M Seymour SC (Applicants)
T Robertson SC (Respondent)
Solicitors:
McCartney Young Lawyers (Applicants)
Sparke Helmore Lawyers (Respondent)
File Number(s): 2023/330008
Publication restriction: No
Judgment
COMMISSIONER:
1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent's refusal of the applicants' development application (DA21/0807) (Development Application) seeking consent for a rural land sharing community (RLSC) including approval for the use of three existing dwellings and two sheds and construction of a fourth dwelling, including pavilion (shade structure) and pool at Lot 2 in Deposited Plan 1119629, known as 160 Richards Deviation, Dunbible NSW (Subject Land).
2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
Background
1. The Development Application was lodged with the respondent on 24 September 2021.
2. The Development Application was publicly notified between 20 October 2021 and 3 November 2021. No submissions were received.
3. On 9 May 2022, the Development Application was referred to the NSW Rural Fire Service (RFS). A response was received on 21 July 2022 in which the RFS recommended the imposition of various conditions (Ex 1, tab 8).
4. Following extensive discussions between the parties, requests for information and the provision of further documentation and information, the Development Application was refused by the respondent on 4 May 2023.
5. On 9 August 2023, a building information certificate (BIC) application was lodged with the respondent containing the same documentation that was lodged with the Development Application (2023 BIC Application). The 2023 BIC Application was refused on 8 May 2024.
6. On 18 October 2023, the applicants commenced these proceedings against the refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.
7. The matter was listed for a conciliation conference under s 34 of the LEC Act. The conciliation was unsuccessful and the conciliation conference terminated and the matter set down for hearing.
The Development Application is amended
1. The evolution of the Development Application is helpfully set out at s 6 of the applicant's Third Further Amended Statement of Facts and Contentions filed 29 October 2024 (Third SOFAC).
2. It is sufficient to state the applicant was granted leave of the Court to amend its application on 21 June and 25 July 2024 prior to the commencement of the hearing on 29 August 2024.
3. During the hearing, the applicant was granted leave to amend its application as follows:
1. 30 August 2024: the applicant was granted leave to amend the Development Application to rely on the following documents (comprised in Ex C):
1. Amended Statement of Environmental Effects prepared by Byron Bay Planning & Property Consultants dated 23 August 2024 (Amended SEE);
2. Second Amended Rural Land Sharing Community Deed (Amended Deed);
3. Erosion and Sediment Control Plan, Ardill Payne job 11226, SK01E;
4. Bushfire Emergency Management and Evacuation Plan prepared by Bushfire Risk dated 26 August 2024 (Bushfire Plan); and
5. Bushfire Management – Draft Loop Road Plan (2 sheets): "Bushfire Access Road Layout Plan", Ardill Payne, Job 11226, SK01 Rev E (sheet 1) and Central Access Slope Analysis (SK04 Rev D) by Ardill Payne (sheet 2).
1. 3 October 2024: the applicant was granted leave to amend the Development Application to rely on the following documents:
1. Middle Loop Road Layout and Longitudinal Section (SK05 Issue F) prepared by Ardill Payne dated 19 September 2024 (Ex F);
2. Northern Fire Access Road Layout and Longitudinal Section Ch 0.00 - Ch 22.11 (SK06 Issue F) prepared by Ardill Payne dated 19 September 2024 (Ex F);
3. Northern Fire Access Road Layout and Longitudinal Section Ch 220.00 – Ch 423.01 (SK07 Issue F) by Ardill Payne dated 19 September 2024 (Ex F);
4. Northern Fire Access Road Layout Through to Tweed Valley Way (SK08 Issue 4) by Ardill Payne dated 24 September 2024 (Ex F);
5. Erosion and Sediment Control Management Plan letter prepared by Arthur Hyde of Ardill Payne dated 19 September 2024 (Ex F);
6. Plans for Dwelling 4 prepared by Habitat Studio Architects as amended 30 August 2024 (Ex F);
7. Plans for Dwelling 2 prepared by Habitat Studio Architects as amended 30 August 2024 (Ex F);
8. NCC Compliance report for Dwelling 2, prepared by GMA Certification Group dated 25 September 2024 (Ex G);
9. NCC Compliance report for Dwelling 3, prepared by GMA Certification Group dated 25 September 2024 (Ex G);
10. NCC Compliance report for Dwelling 4, prepared by GMA Certification Group dated 25 September 2024 (Ex G); and
11. Contour Survey Plan (2 sheets), prepared by Byron Bay Surveying dated 19 September 2024.
1. 22 October 2024: the applicant was granted leave to amend the Development Application as follows:
1. inclusion of Contamination Report (Ex H);
2. inclusion of Contour Survey Plan, Lot 2 DP 1119629, prepared by Byron Bay Surveying dated 1 October 2024 (Ex K);
3. withdraw the plans referred to at 12(2)(a)-(d) (being SK05-SK08 Issue F in Ex F) from the Development Application and replace those plans with:
1. Erosion and Sediment Control Plans – Construction Works by Ardill Payne SK01 Issue G dated 21 October 2024; and
2. Middle Loop Layout and Longitudinal Section by Ardill Payne SK05 Issue G dated 21 October 2024,
3. (collectively, Ex J);
1. withdraw Annexure D and E from Ex E, being the expert report of Mr Hyde dated 8 October 2024.
1. On 14 November 2024: the applicant was granted leave to amend the Development Application to rely on:
1. an updated Bushfire Emergency Management and Evacuation Plan prepared by Ms Jackson dated 7 November 2024 (Updated Bushfire Plan) (Ex L);
2. Slope Management Plan prepared by Ardill Payne dated 4 November 2024 (Ex M);
3. Contour Survey Plan prepared by Byron Bay Surveying Pty Ltd dated 4 November 2024 (Ex N); and
4. Letter from GMS Certification Group dated 11 November 2024 (Ex O).
1. I declined to make an order for costs thrown away under s 8.15(3) of the EPA Act in respect of the 14 November 2024 amendments on the basis that the amendments, including to the Updated Bushfire Plan to include consideration of "non trigger days", were minor.
2. The Class 1 Application, together with the amendments made on 21 June, 25 July, 30 August, 3 and 22 October and 14 November 2024 (to the extent that documents are not superseded by later amendments) constitute the Amended Development Application.
3. For completeness, I note that on 25 September 2024, in accordance with the Court's directions, the following documents were referred to the RFS:
1. Bushfire Management Plan prepared by Bushfire Risk dated 17 July 2024;
2. Bushfire Risk Assessment (Bushfire Assessment) prepared by Ms Jackson dated 16 July 2024 (Ex B, tab 4);
3. Vegetation Management Plan prepared by Blackwood Ecological Services dated 19 July 2024;
4. Amended SEE;
5. Second Amended Deed;
6. Bushfire Plan;
7. Bushfire Access Road Layout Plan prepared by Ardill Payne dated 26 August 2024;
8. Central Access Slope Analysis (SK04 Issue D) prepared by Ardill Payne dated 26 August 2024;
9. Middle Loop Road Layout and Longitudinal Section (SK05 Issue F) prepared by Ardill Payne dated 19 September 2024 (Ex F);
10. Northern Fire Access Road Layout and Longitudinal Section Ch 0.00 - Ch 22.11 (SK06 Issue F) prepared by Ardill Payne dated 19 September 2024 (Ex F);
11. Northern Fire Access Road Layout and Longitudinal Section Ch 220.00 – Ch 423.01 (SK07 Issue F) by Ardill Payne dated 19 September 2024 (Ex F); and
12. Northern Fire Access Road Layout Through to Tweed Valley Way (SK08 Issue 4) by Ardill Payne dated 24 September 2024 (Ex F);
13. Erosion and Sediment Control Management Plan letter prepared by Arthur Hyde of Ardill Payne dated 19 September 2024 (Ex F);
14. Plans for Dwelling 4 prepared by Habitat Studio Architects as amended 30 August 2024 (Ex F);
15. Plans for Dwelling 2 prepared by Habitat Studio Architects as amended 30 August 2024 (Ex F);
16. Contour Survey Plan (2 sheets), prepared by Byron Bay Surveying dated 19 September 2024;
1. In addition, following further amendments to the Development Application on 3 October 2024, on 4 October 2024, the respondent referred the following additional documents to the RFS:
1. NCC Compliance report for Dwelling 2, prepared by GMA Certification Group dated 25 September 2024 (Ex G);
2. NCC Compliance report for Dwelling 3, prepared by GMA Certification Group dated 25 September 2024 (Ex G);
3. NCC Compliance report for Dwelling 4, prepared by GMA Certification Group dated 25 September 2024 (Ex G); and
4. Contour Survey Plan, Lot 2 DP 1119629, prepared by Byron Bay Surveying dated 1 October 2024.
1. The respondent received a response from the RFS on 15 October 2024. A copy of the response forms Ex Q.
2. Further, the amended development application, as at 23 October 2024, was publicly re-notified from 23 October to 6 November 2024. No submissions were received.
3. Following directions from the Court, the respondent provided the Court with two further documents on 27 November 2024, including:
1. "Third Further Amended Statement of Facts and Contentions Identifying Contentions That Are Resolved/Can Be Addressed by Respondent's Conditions" (Final Contentions) which clarified the final remaining contentions following the multiple amendments to the applicants' application and consideration/discussion of proposed conditions; and
2. "Respondent's Comments on Applicant's Conditions Table Dated 26 November 2024" which provides the respondent's comments on the conditions in dispute as identified by the applicant (Conditions Table).
The Subject Land and its context
1. As set out in the Final Contentions and oral submissions, the Subject Land:
1. is 40.1ha, an irregular shape and has a 640m frontage to the Richards Deviation Road reserve;
2. is zoned RU2 Rural Landscape under the Tweed Local Environmental Plan 2014 (TLEP);
3. contains three existing dwellings of American barn style and two sheds and pool which were constructed without consent;
4. was jointly owned by Mr John and Ms Bonita Martin as at the date of lodgement of the Development Application, however as at 6 May 2024, was owned as follows:
1. John Trevor Martin: Joint tenant 14/20;
2. Bonita Jayne Martin: Joint tenant 14/20;
3. Benjamin John Martin: Tenants in common 2/20;
4. Jospeh James Martin: Tenants in common 2/20; and
5. Ethan John Martin: Tenants in common 2/20.
1. is not connected to sewerage or water infrastructure, but is connected to electricity infrastructure;
2. is covered with vegetation over approximately two-thirds and has an elevation from 10m AHD to 70m AHD (with the remaining third of the Subject Land being historically cleared by previous agricultural activity);
3. is mapped as "Bushfire Prone Land – Vegetation Category 1 and 3" (see Figure 2 in the Bushfire Assessment); and
4. is subject to a restriction on title regarding the "preferred site for the location of any residential dwelling" which is sought to be varied by the Amended Development Application.
The site view
1. The Court attended a site view on the morning of the hearing accompanied by the parties. The Court also traversed the length of Richards' Deviation by car before entering and after exiting the Subject Land.
Issues
1. The issues raised by the respondent in this matter evolved significantly over the course of the hearing, largely in response to the changing nature of the applicant's proposal, which in turn attempted to respond to the respondent's contentions.
2. Multiple iterations of the respondent's Statement of Facts and Contentions have been filed with leave in these proceedings in response to the amendments to the Development Application. The Final Contentions identified the issues remaining in dispute at the conclusion of the hearing.
3. The issues remaining in dispute are as follows:
1. Does the Amended Development Application propose the subdivision of land?
2. Does the Amended Development Application fall within the requirement of "three or more dwellings"?
3. Is the Amended Development Application consistent with the aims set out in cl 2 of Sch 5 of State Environmental Planning Policy (Primary Production) 2021 (Primary Production SEPP)?
4. Has adequate provision been made for bushfire management for the purposes of cl 6 of Sch 5 of the Primary Production SEPP and does the Amended Development Application satisfy s 4.14 of the EPA Act?
5. Is there suitable vehicular access to the Subject Land or have adequate arrangements been made to make it available for the purposes of cl 7.10 of the TLEP?
6. Does the Amended Development Application propose satisfactory arrangements for operating and managing the RLSC?
1. I have determined to refuse the Amended Development Application on the basis that I am not satisfied the proposal conforms to the relevant provisions of the Planning for Bush Fire Protection 2019 (PFBP) and decline to exercise my discretion to otherwise grant development consent under s 4.14 of the EPA Act. I am further not satisfied that there will be adequate provision for bushfire management under cl 6(c) of Sch 5 of the Primary Production SEPP. My reasons are set out below.
2. It is consequently not necessary for me to consider the other issues remaining in dispute in this matter.
Expert evidence
1. The applicant relied on the expert evidence of Ms Jackson (bushfire), Ms Evans (town planning), Mr Free (ecology) and Mr Hyde (civil engineering).
2. The respondent relied on the expert evidence of Mr Swaine (bushfire), Mr Lonergan (town planning) and Mr Banks (ecology).
3. The following joint reports were filed and subsequently tendered at the hearing:
1. Joint Town Planning Report prepared by Ms Evans and Mr Lonergan filed on 20 August 2024 (Joint Town Planning Report) (Ex 2);
2. Joint Bushfire Report prepared by Ms Jackson and Mr Swaine, filed on 13 August 2024 (Joint Bushfire Report) (Ex 3);
3. Joint Ecology Report prepared by Mr Free and Mr Banks, filed on 12 August 2024 (Joint Ecology Report) (Ex 4);
4. Supplementary joint report of Mr Free, Mr Banks, Ms Jackson and Mr Swain dated 30 August 2024 (Supplementary Joint Bushfire and Ecology Report) (Ex 11); and
5. Supplementary Joint Bushfire Report of Ms Jackson and Mr Swaine dated 7 November 2024 (Supplementary Joint Bushfire Report) (Ex17).
1. In addition, the following single expert reports were also prepared and tendered at the hearing:
1. Civil Report of Mr Hyde dated 8 October 2024 (Ex E);
2. Bushfire report of Mr Swain dated 21 October 2024 (Swain Report) (Ex 12)
3. Ecology report of Mr Banks dated 21 October 2024 (Ex 9); and
4. Town planning report of Ms Evans dated 22 October 2024 (Ex 13); and
5. Bushfire report of Ms Jackson dated 18 December 2024 (Ex D);
The role of the Court on appeal
1. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether consent should be granted to the proposed development. Section 39 of the LEC Act provides as follows:
39 Powers of Court on appeals
…
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
1. Section 8.14(1) of the EPA Act similarly gives the Court broad powers on an appeal against the refusal or deemed refusal of a development application, as follows:
(1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
1. Section 4.16 of the EPA Act relevantly provides that:
(1) General: A consent authority is to determine a development application by –
(a) granting consent to the application, either unconditionally or subject to conditions, or
(b) refusing consent to the application.
1. Section 4.15(1) of the EPA Act relevantly sets out the matters that must be taken into consideration as are of relevance by a consent authority in determining a development application.
Legislative and planning framework
1. As the Subject Land is mapped as "bushfire prone land", s 4.14 of the EPA Act applies to the proposed development. Section 4.14 of the EPA Act relevantly provides as follows:
4.14 Consultation and development consent—certain bush fire prone land
(cf previous s 79BA)
(1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3(2)) unless the consent authority—
(a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or
(b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.
(1A) If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire.
1. It is agreed between the parties that as at the time the Development Application was lodged, Sch 5 of State Environmental Planning Policy (Primary Production and Rural Development) 2019 (2019 SEPP) applied to the proposed development. It is uncontroversial that the relevant provisions of the 2019 SEPP were transferred to Sch 5 of the Primary Production SEPP and continue to apply to the Amended Development Application (see cl 1.8A(3) of the TLEP).
2. Schedule 5 of the Primary Production SEPP as it applies to the Amended Development Application is extracted below:
Schedule 5 Rural land sharing communities
1 Application of Schedule
This Schedule applies as if it formed part of each of the following local environmental plans and has effect despite any other provision of those plans—
…
(p) Tweed Local Environmental Plan 2014.
2 Aims of Schedule
This Schedule aims to encourage and facilitate the development of rural land sharing communities committed to environmentally sensitive and sustainable land use practices by—
(a) enabling people who collectively own a single lot to erect multiple dwellings on that lot without dividing the lot (such as by subdivision or by contractual arrangements), and
(b) enabling the sharing of facilities and resources to allow a wide range of communal rural living opportunities at a lower cost, and
(c) facilitating development on rural land (preferably in a clustered style) without undue harm to the environment and without creating a demand for the unreasonable or uneconomic provision of public amenities or services, and
(d) creating opportunities for an increase in rural population in areas that are experiencing population loss.
3 Land to which Schedule applies
This Schedule applies to land in any rural zone but not to the following land—
(a) land in an environmentally sensitive area for exempt or complying development within the meaning of clause 3.3 of the Standard Instrument,
(b) land to which a wilderness protection agreement under the Wilderness Act 1987 relates,
(c) land that is a forestry area within the meaning of the Forestry Act 2012,
(d) land that is within a special area or a controlled area under the Hunter Water Act 1991, the Sydney Water Act 1994 or the Water NSW Act 2014.
4 Rural land sharing community permitted with consent
(1) The consent authority may grant development consent to development on land to which this Schedule applies for the purposes of 3 or more dwellings if satisfied of the following—
(a) the land is a single lot with an area of not less than 10 hectares,
(b) the height of any building on the land will not be more than 8 metres,
(c) no more than 25% of the land is prime crop and pasture land and no building containing a dwelling will be on any such land,
(d) no building will be on land that is a wildlife refuge, wildlife corridor or wildlife management area and the development will not adversely affect any such land,
(e) the development will not include a camping ground, caravan park, eco-tourist facility or tourist and visitor accommodation, except where otherwise permissible on the land,
(f) no building will be on land that has a slope in excess of 18 degrees or that is prone to mass movement,
(g) the development is consistent with the aims of this Schedule.
(2) In this section—
prime crop and pasture land means—
(a) land identified as prime crop and pasture land under State Environmental Planning Policy No 15—Rural Landsharing Communities as in force immediately before the repeal of that Policy, or
(b) land identified by the Secretary of the Department of Industry that has been notified in writing to the consent authority as prime crop and pasture land for the purposes of this Schedule.
5 Matter to be considered
The consent authority must not grant development consent under this Schedule unless it has taken into account the following—
(a) the arrangements for operating and managing the community,
(b) the design of the proposed development,
(c) the physical and heritage characteristics of the proposed site and surrounding land,
(d) the availability of roads, utilities and other services,
(e) the impact of the development on the environment and any present or future use of the land,
(f) any other matter that the consent authority considers to be relevant.
6 Future management
The consent authority must not grant consent to development under this Schedule unless it is satisfied that adequate provision will be made for the following—
(a) water and waste management,
(b) prevention, control and management of soil erosion,
(c) bush fire management,
(d) flora and fauna management, including the control of noxious weeds and noxious animals,
(e) provision and maintenance of internal roads, boundary fences, water reticulation, service corridors for telephone and electricity cables and similar matters.
7 Density of development
(1) The consent authority must not grant consent to development under this Schedule if the development would result in more than the following number of dwellings on the land—
(a) if the land has an area of 10 hectares or more but not more than 210 hectares—4 dwellings plus 1 additional dwelling for every 4 hectares of land greater than 10 hectares,
(b) if the land has an area of 210 hectares or more—54 dwellings plus 1 additional dwelling for every 6 hectares of land greater than 210 hectares up to a maximum of 80 dwellings.
(2) The consent authority must not grant consent to development under this Schedule if the development would result in the number of persons reasonably accommodated in all the dwellings on the land being greater than 4 times the maximum number of dwellings otherwise permitted by this section.
8 Subdivision prohibited
Subdivision (other than a subdivision permitted under clause 2.75 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008) of land is prohibited if development has been carried out on the land under this Schedule or under provisions similar to this Schedule.
Note—
For example under the former State Environmental Planning Policy No 15—Rural Landsharing Communities.
There should be no application for a strata certificate under this Schedule as subdivision is prohibited.
9 More than 1 dwelling may be treated as a single dwelling
The consent authority may, for the purposes of this Schedule, treat 2 or more dwellings as a single dwelling if it is satisfied that, having regard to the sharing of any cooking or other facilities and any other relevant matter, the dwellings comprise a single household.
Does the Amended Development Application satisfy s 4.14 of the EPA Act and will adequate provision be made for bushfire management?
1. As set out above, s 4.14(1) of the EPA Act relevantly provides that development consent cannot be granted for the carrying out of development for any purpose… on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under s 10.3(2)) of the EPA Act unless the consent authority:
1. is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department… (the relevant specifications or requirements), or
2. has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.
1. Section 4.14(1A) goes on to state:
If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire.
1. The parties agree that the Subject Land is relevantly recorded as "bush fire prone land" on a relevant map (being the map extracted at Figure 2 in the Bushfire Assessment) and that s 4.14 of the EPA Act therefore applies.
2. The parties disagree as to whether the proposed development "conforms" to the specifications and requirements of the PFBP, being the relevant specifications or requirement for the purposes of s 4.14 of the EPA Act, that are relevant to the development. The parties also dispute whether "adequate provision will be made for bush fire management" for the purposes of cl 6(c) of Sch 5 of the Primary Production SEPP. In particular, the parties disagree as to whether a lack of secondary access road from and to the Subject Land renders the Subject Land unsuitable for the proposed development on the basis of bushfire risk.
3. Section 1.1 of PFBP relevantly provides that "all development on BFPL [bush fire prone land] must satisfy the aim and objectives of Planning for Bush Fire Protection". It goes on to state:
The aim of PFB is to provide for the protection of human life and minimise impacts on property from the threat of bush fire, while having due regard to development potential, site characteristics and protection of the environment.
The objectives are to:
* afford buildings and their occupants protection from exposure to a bush fire;
* provide for a defendable space to be located around buildings;
* provide appropriate separation between a hazard and buildings which, in combination with other measures, prevent the likely fire spread to buildings;
* ensure that appropriate operational access and egress for emergency service personnel and occupants is available;
* provide for ongoing management and maintenance of BPMs; and
* ensure that utility services are adequate to meet the needs of firefighters.
1. Section 1.4 entitled "how to use this document" relevantly provides as follows:
PBP uses a performance based approach, and identifies objectives and detailed performance criteria to satisfy desired outcomes and meet the Aim and Objectives. Ultimately, any performance based approach must demonstrate that bush fire protection is afforded to a proposed development commensurate with the assessed level of bush fire risk and the characteristics of the occupants.
This can be achieved by either applying the identified acceptable solutions, or by preparing a performance based solution.
A performance based solution must be designed to achieve the appropriate level of protection by tailoring a package of measures which meet the intent and performance criteria relevant to the proposed development.
1. Section 1.4.2 "intent" provides that:
For each BPM [bush fire protection measure], a broad intent is outlined. The ensuing performance criteria and acceptable solutions are designed to ensure that the general intent for each BPM is met.
1. Section 1.4.3 "performance criteria" relevantly provides:
Performance criteria are the outcomes that need to be achieved to satisfy the intent. The performance criteria can be satisfied in one of the following ways:
* acceptable solutions; or
* performance based solution; or
* the combination of the above.
1. Section 1.4.5 "performance based solutions" relevantly provides:
Performance based solutions allow flexibility and innovation in responding to site-specific opportunities and constraints while still meeting the identified performance criteria…
Performance based solutions must provide substantiated evidence and clearly demonstrate how the specific objectives and performance criteria are to be satisfied.
1. The parties agree that Section 7 of PFBP relating to "Residential Infill Development" applies to the Amended Development Application. Section 7 prescribes various bush fire protection measures (BPMs) including:
1. asset protection zones (APZs);
2. access;
3. water supplies;
4. electricity services;
5. gas services;
6. construction standards;
7. landscaping; and
8. emergency management.
1. Section 7 then goes on to provide performance criteria and acceptable solutions for each BPM, stating that the "intent of measures" is "to minimise the risk of bush fire attack and provide protection for emergency services personnel, residents and others assisting firefighting activities".
2. Notably, in relation to access, the performance criteria and acceptable solutions from Table 7.4a are extracted below:
Applicants' position
1. The Bushfire Assessment relied on by the applicants:
1. States in the Executive Summary (p iii) that:
This Bushfire Risk Assessment Report acts as a 'Certificate' under s 4.14(b) Environmental Planning and Assessment Act 1979. This 'Certificate' has been issued by Melanie Jackson who is recognised by the NSW Rural Fire Service as a qualified consultant in bushfire risk assessment.
1. Provides that all relevant "acceptable solutions" in PFBP are met for the proposed development with the exception of "minor deviations from the acceptable solutions for property access greater than 200m from a Council managed road and APZ over 18 degrees (up to 21 degrees)" (p iii).
2. Proposes the following performance solutions in respect of the non-conformance with the "acceptable solutions" for APZs:
1. Proposes the following performance solutions in respect of the non conformance with the "acceptable solutions" for access:
1. I note that subsequent to the preparation of the Bushfire Assessment, the applicants agreed to various further bush fire management measures including all dwellings to be constructed or augmented to Bushfire Attack Level (BAL) 29 (which is in Ms Jackson's view, over and above what is required under PFBP and the advice of RFS) and the inclusion of the consideration of non-trigger days in the Updated Bushfire Plan.
2. The applicant submits that, in the first instance, for the purpose of s 4.14(1)(b) of the EPA Act, the Court has been provided with a certificate by Ms Jackson, being a person who is recognised by the NSW Rural Fire Service as a qualified consultation in bush fire risk assessment, stating that the development conforms to the relevant specifications and requirements of PFBP and the matter needs no further consideration.
3. In the event the Court does not accept this submission, the applicant argues that the Court can be satisfied that:
1. the proposed development conforms to the specifications and requirements in PFBP that are relevant to the development;
2. that adequate provision will be made for bushfire management; and
3. the Subject Land is in and of itself, suitable for the proposed development,
4. having regard to the Bushfire Assessment, the applicant's proposed conditions relating to bushfire, and the evidence of Ms Jackson.
1. The applicant submits that the lack of a secondary access road is not fatal to the development, and that the acceptable solutions for access specifically contemplate circumstances where a secondary access road cannot be achieved and provide specific requirements for that eventuality (see the "black arrow" bullet points in column 2 at row 4 extracted at [49] (referred to hereafter as Access Exceptions)).
2. The applicant states (at AWS [67-68]):
[67] Below the clause expressing a requirement for an alternative property access is one relating to "no specific access requirements in an urban area". Below that is recognition of "where this cannot occur". What is the meaning of "this" in its context?
[68] The "exception" that follows must be to the two paragraphs put above it. Were the exception solely limited to when something cannot occur in an "urban area, then why would the second paragraph of the exception refer to "forest, woodland and heath situations" and "rural property roads". This demonstrates the true construction is that the paragraph operates when an alternative property access cannot be provided.
1. However, even if the Access Exceptions were to apply to the acceptable solution of a secondary access road, Ms Jackson accepts that the proposed development does not meet the requirements of these exceptions, and therefore does not comply with the "acceptable solution" for the performance criteria of "firefighting vehicles can access the dwelling and exit the property safely" (Firefighter Access Performance Criteria). This is because there is over 200m between two passing bays.
2. The applicant submits that Ms Jackson has carried out an assessment against the relevant criteria in PFBP and proposed a number of "redundancies" (performance based solutions) by which the Firefighter Access Performance Criteria is nonetheless met, and the development can be suitably carried out on the Subject Land. In relation to the contention regarding insufficient property access under PFBP, Ms Jackson relevantly states in the Joint Bushfire Report [pp 12-14]:
The solution presented provides an alternative approach to provision of a secondary access road. Minor upgrades are required to ensure access to all buildings is achieved… access through the dwelling cluster requires widening to accommodate appropriate carriageway and turning areas for fire fighting vehicles and occupants.
It has been acknowledged in the BRA that the site is isolated, including access along Richards Deviation Road. The BRA report provides a number of redundancies to negate significant risk to occupants and firefighters (should fire fighters be present the property during a bushfire event).
Many properties with dwelling entitlement cannot achieve a secondary property access road. RFS generally accept redundancies to compensate for the shortfall in the Bushfire Protection Measures as per those presented in the BRA specifically for isolated, infill properties.
The dwelling cluster is sited downslope of potential fire run. Redundancies, include additional water supplies above minimum requirements, hose reels for self-sufficiency to wet down the BE [building envelope] and/or mop up after passage of a fire, the assessment incorporates Forest analysis in lieu of Rainforest (riparian zones) resulting in higher BAL's and larger APZs.
Hose reels with pumps shall be installed within proximity to the dwellings for occupants to sufficiently defend and/or hose down the building and surrounds to provide further protection from bushfires.
….
Building ignition is reduced by appropriate BAL upgrades as recommended and the large APZ provides extra open space from the hazard that the minimum requirements.
Furthermore the 'Rural Land sharing Community' consists of an extended family, who will support one another has many benefits reconciling ongoing land/APZ management, emergency planning and support for each other.
The performance approach includes site specific suite of bushfire protection measures in combinations provide a performance approach. The development satisfies the performance criteria set out in PBB 2019.
1. The applicant is therefore of the view that the proposed development does conform to the relevant specifications and requirements of PFBP and there is no reason to refuse the Amended Development Application on the basis of s 4.14(1) of the EPA Act nor cl 6(c) of Sch 5 of the Primary Production SEPP.
2. In the event that the Court does not accept that the proposed development conforms with PFBP as per s 4.14(1), the applicant submits that relevant consultation with the Commissioner of the NSW Rural Fire Service has occurred under s 4.14(1A) of the EPA Act and the Court can still grant consent to the proposed development. This is because although the RFS expressed "advice" for the preference of alternative access, this is not determinative where a consultant qualified under the scheme, has provided a rational basis for the Subject Land to be made suitable through a number of overlapping redundancies (see AWS at [75]). The applicant directs the Court's attention to the case of Minton v Shoalhaven City Council [2024] NSWLEC 1548 (Minton) in this regard (see AWS at [76]-[78]).
Respondent's position
1. The respondent submits that that the proposed development has not demonstrated that adequate provision will be made for bushfire management, including that the proposed development does not comply with the recommendations of the RFS in response to the amended documentation referred to it including the provision of an alternative property access road. The respondent submits that the proposed access road is unsafe and will be overrun by fire and there is only a single access to the public road network. The proposed internal loop road does not address the requirement to provide an alternate access to the dwellings from a public road, only providing an alternative connection with the sheds and existing dwellings.
2. The respondent relies on the evidence of Mr Swain who relevantly states in the Joint Bushfire Report at p 13:
The existing driveway to Building 4 is located more than 200 metres from the through public road (which is (sic) does not provide safe passage during bushfires).
Building 2 is located > 325 metres from the public road.
,,,
The rehabilitation of the vegetation within the riparian zone and buffer will increase the hazard and risk to the existing driveway from an upslope spreading fire – making the egress from the dwellings to an unsafe public road also unsafe.
The preparation of a Bushfire Emergency Evacuation Plan (BEEP) will not address the extreme risk of bushfire impact on the site, the access driveway and the public road.
The passing bays and turning heads recommended in the bushfire report do not provide a safe "alternate solution" to the requirement for an alternate property access road…
1. The respondent submits that the proposed development does not satisfy the "acceptable solution" nor provide an appropriate "performance based solution" to the Firefighter Access Performance Criteria. The respondent further submits that the applicants' interpretation of the access requirements set out in table 7.4a in PFBP are incorrect, and the Access Exceptions only relate to urban areas where the requisite acceptable solution cannot be met. The RWS at [31] relevantly states:
The applicants submit that table 5.3b creates an exception to the requirement for an alternative access road where the dwellings are located more than 200 metres from a public through road. It does not. The exception immediately follows the second case involving access in urban areas, but which do not comply with an access path no greater than 70 metres. The access path to the dwelling may therefore be hundreds of metres, comprise a rural property road and travel through forest, even though the dwelling is in an urban area. "This" is a reference to the second case, not to both cases. If it were otherwise, the plural would have been employed.
1. The respondent goes on to state that (at RWS [32]):
In any event, the RFS has assessed the bush fire management plan prepared by Ms. Jackson and advised that alternative access should be provided. Therefore, it has not approved her performance-based solution. The BMP (Exhibit B, Annexure C2, p. 4) contains no reasoning for abandoning the BPM. Figure A2 shows the existing access passing through thick forest for 220 metres, most of its length. That is the location of the bush fire threat. Whether the residents can shelter in place is neither here nor there, where emergency vehicles (which may need to enter the property to protect other properties, and not just the residents) must enter or exit. Emergency personnel could be trapped without safe alternative access. Mr. Swain, who must be one of the most experienced bush fire experts in NSW and whose evidence on the subject of access roads has been preferenced by the court (Bird In The Hand 1 Pty Ltd v. Tweed Shire Council [2024] NSWLEC 1709 at [62]) and the RFS have advised that an alternative access road should be provided. The proposal cannot possibly achieve the intent, which is the guide for whether it is an acceptable solution. It cannot protect emergency services personnel and others assisting firefighting activities that access, and egress through unmanaged and highly combustible forest for 220 metres along a steeply sloping road. In evidence at T70.32 to T71.25, the references to Mr. Swain should be to Ms. Jackson. Ms. Jackson conceded that the egress from the property was not particularly safe where the hazard is upslope: T71.10-.25, a reference to the vegetation surrounding the access road. Ms. Jackson also conceded that the existing primary access road was "deficient as an emergency access and egress": T77.35. When asked about the risk to emergency personnel, all Ms. Jackson could say was that there may not be enough fire trucks to go to the property: T78.5. Mr. Swain's later comment about not putting a brigade at risk on the property related to the development: the sole unsafe access through unmanaged vegetation which would preclude access by emergency vehicles to fight the fire, making any visitors (who need not be co-owners) hostages to fortune and preventing the suppression of fire across a larger landscape. In substance, any approval of this development would be a declaration that this was a no-go area for emergency vehicles, and would contradict the intent of the BPM. That would fly in the face of the guide, the advice by the expert statutory authority and the evidence from experienced bushfire experts.
Consideration
1. Dealing first with the applicant's submission that the Court has been provided with a certificate by a person recognised by the RFS as a qualified consultant in bush fire risk assessment relevantly stating that the proposed development conforms to PFBP and that this in and of itself satisfies s 4.14(1)(b) of the EPA Act. Although I accept that Ms Jackson has been recognised by the RFS as a qualified consultant in bush fire risk assessment and I accept that Ms Jackson has prepared a certificate that states that the development conforms to PFBP, the respondent has raised contentions in this matter that the proposal is not in conformance with PFBP and that adequate provision has not been made for bush fire management for the purposes of cl 6 of Sch 5 of the Primary Production SEPP.
2. Section 4.14(1) is phrased in such a way that development consent cannot be granted unless the consent authority is either satisfied that the development relevantly conforms to PFBP or has been provided with a relevant certificate. This means that the consent authority must still exercise its discretion as to whether to grant development consent, and is not compelled to do so even if it is so satisfied or has been provided with a relevant certificate. In circumstances where the respondent has raised live issues regarding the proposed development's non conformance with PFBP and general issues of inadequate provision for bushfire management, I consider it necessary to determine whether I am satisfied to grant development consent having regard to s 4.14 of the EPA Act, that that there will be adequate provision for bushfire management, and that the Subject Land is otherwise suitable for the proposed development.
3. Regardless of whether the Access Exceptions apply to urban areas alone or include circumstances where a secondary access road cannot be provided in a rural setting, the parties agree that the proposed development does not comply with the "acceptable solutions" for the Firefighter Access Performance Criteria. This is because, even if the Access Exceptions do apply, there is over 200m between turning bays. Therefore, it is necessary to determine whether the performance solution proposed by the applicant adequately satisfies the Firefighter Access Performance Criteria and consequently conforms to the relevant provisions of PFBP.
4. The "performance solutions" proposed by the applicants on the advice of Ms Jackson is explained at [57] above and include upgrading the internal road system on the Subject Land, additional water supplies above minimum requirements, hose-reels with pumps within proximity to dwellings for self-sufficiency, higher BALs and larger APZs than technically required and the presence of family who will support one another. Further, the applicant relies on the Updated Bushfire Plan which states that the "best cause of action is to leave early" at least four hours before potential bushfire impact. The Updated Bushfire Plan also discusses the secondary "stay and shelter in place" strategy which is stated to be utilised "if it has been left too late or is too dangerous to leave the site".
5. I am not satisfied on the evidence before me that the Amended Development Application conforms to the acceptable solution for access, nor Firefighting Access Performance Criteria through its proposed performance solutions. This is primarily because:
1. Ms Jackson accepts that "the existing primary access is, in many ways, deficient as an emergency access and egress" (T 22 October 2024, p 77 line 34-37) and agreed with the proposition that the existing road is a "difficult route out to the public road, winding up a hill, going through some vegetation, making egress difficult in the case of a bush fire" (T 22 October 2024, p 70 line 37-41 – note that the reference here to Witness Swain should be Ms Jackson).
2. Ms Jackson did not refute the multiple assertions made by Mr Swain and the respondent's counsel that firefighters would be unwilling to attend the Subject Land to fight a fire on the basis of deficient and unsafe access (instead Ms Jackson spoke of limitations of fire truck numbers and pre-incident planning (see for example, T 22 October 2024, p 77 line 50 to p 78 line 7 and T 22 October 2024, p 78 line 27-35).
3. I accept the unrefuted evidence of Mr Swain, that (T 22 October 2024, p 78 line 20-23):
"As a crew leader, and I've been there many times, I wouldn't put my ‑ I'm almost saying men. I wouldn't put my volunteers in there. If there was a fire coming towards this place, I wouldn't put them at that risk. No."
1. The relevant performance criteria in question is "firefighting vehicles can access the dwelling and exit the property safely". I note that most of the measures contained within the applicants' performance solution do not relate to firefighting vehicles being able to access the dwelling and exit the property safely. They are primarily directed towards the occupants being able to either evacuate ahead of time so that firefighters do not need to access the Subject Land at all (see T 22 October 2024, p 77 line 34-48), or, if it is too late to evacuate, assist the occupants to defend themselves (through both the design of the proposed development having regard to APZs and BAL construction standards and adequate water supply/hoses etc). These do not relate to access for firefighters.
2. Although Ms Jackson states the RFS often accepts these types of redundancies (see Joint Bushfire Report [pp 12-14]), they have in fact not accepted that the redundancies are sufficient to remove the advice for secondary access, being included in both RFS letters of 21 July 2022 and 15 October 2024 (Ex 1, tab 8 and Ex Q respectively). In this regard I note the facts are different to Minton where the RFS did not provide advice for a secondary access having regard to the features of the subject land and proposed bushfire protection measures in that case.
1. I am therefore not satisfied that the performance solutions proposed by the applicants meet the Firefighting Access Performance Criteria or the intent of s 7.4 in that they do not provide adequate protection for emergency services personnel, residents and others assisting firefighting activities due to inadequate access and egress in the event of fire. I am also not satisfied that the Amended Development Application satisfies the following objective set out at s 1.1 of PFBP (noting that s 1.1 of PFBP requires all development on bush fire prone land to satisfy the aim and objectives of PFBP):
"ensure that appropriate operational access and egress for emergency service personnel and occupants is available."
1. Therefore, I am not satisfied that the Amended Development Application conforms to the specifications and requirements of PFBP that are relevant to the development for the purposes of s 4.14(1) of the EPA Act.
2. Turning now to s 4.14(1A) of the EPA Act, I am satisfied that relevant consultation has occurred (see letters from RFS in Ex 1, tab 8 and Ex Q). However, as set out at [68(5)], both of these letters provide advice for a secondary access. I do not have sufficient evidence before me that it is appropriate to disregard RFS' advice regarding a secondary access road. I therefore decline to exercise my discretion to grant development consent to the Amended Development Application under s 4.14(1A) of the EPA Act.
3. I am similarly not satisfied that adequate provision will be made for bushfire management for the purposes of cl 6(c) of Sch 5 of Primary Production SEPP. This is because I have determined, on the facts and evidence before me, that access to the Subject Land is deficient for the purpose of providing safe access and egress to the Subject Land during a fire and managing bushfire risk.
4. In reaching this decision, I have had to weigh the applicants' desire to continue living on the Subject Land with their extended family, with the very real risks to both the applicants and their family, neighbours and firefighters. Ultimately, the Subject Land is mapped as bush fire prone land and both the requirements and specifications under PFBP and general considerations of site suitability and public interest under s 4.15 of the EPA Act, require the Subject Land to be suitable for the proposed development. On the evidence and facts before me in this case, I have placed significant weight on the fact that bush fire risk has not been adequately addressed or managed by the Amended Development Application, noting that it proposes four dwellings on the Subject Land, having regard to the difficulties associated with access to and from the Subject Land in the event of fire.
5. Finally, I note that it is not appropriate to impose a condition requiring the provision of a secondary access road as a means by which to resolve this issue. This is because there is no information before the Court as to where it would be located, what vegetation may need to be cleared or disturbed, or whether it would need to traverse a property owned by a third party etc. Such a condition is too uncertain in the circumstances, and therefore does not resolve or overcome my findings regarding the inadequate bush fire management proposed by the Amended Development Application, non-conformance with PFBP and the general lack of suitability for the proposed development on the Subject Land due to bush fire risk.
Conclusion
1. On the basis of my findings regarding inadequate provision for bushfire management and non-conformance with PFBP, the appeal must fail.
2. The Court orders that:
1. The applicants are to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed, in respect of the amendments made on 30 August, 3 October and 22 October 2024.
2. The appeal is dismissed.
3. Development consent for Development Application DA21/0807 for the use of three existing dwellings and two sheds and construction of a fourth dwelling, including pavilion (shade structure) and pool at 160 Richards Deviation, Dunbible, is refused.
4. The exhibits are returned, except for 1, 3, B, L, Q.
N Targett
Commissioner of the Court
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Decision last updated: 17 February 2025