Land and Environment Court of New South Wales CITATION : A V Jennings Limited v Liverpool City Council [2006] NSWLEC 821 APPLICANT A V Jennings Limited PARTIES : RESPONDENT Liverpool City Council FILE NUMBER(S) : 10395 of 2006 CORAM: Hoffman C KEY ISSUES: Development Application :- Subdivision, public domain, endangered species, habitat, urban bush, biodiversity, scenic conservation, access to adjoining property, compliance with urban release control plan Environmental Planning and Assessment Act 1979 Liverpool Local Environmental Plan 1997 Local Government Act 1993 Rural Fires and Environmental Assessment Legislation Amendment Act 2002 LEGISLATION CITED: New South Wales Threatened Species Conservation Act 1995 Commonwealth Environmental Protection and Biodiversity Act 1999. State Environmental Planning Policy No. 19 - Bushland in Urban Areas Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment Development Control Plan 8 - Natural Assets Development Control Plan 31 - subdivision of land in Hoxton Park - Carnes Hill - Prestons Residential Release Area DATES OF HEARING: 6/12/2006 EX TEMPORE JUDGMENT DATE : 12/06/2006 APPLICANT Mr A. McKelvey, solicitor of Sparke Helmore LEGAL REPRESENTATIVES: RESPONDENT Mr D. Baird, solicitor with Ms C. Rose, solicitor of Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 6 December 2006 10395 of 2006 A V Jennings Limited v Liverpool City Council JUDGMENT 1 This is a class 1 appeal No. 109395 of 226 between AV Jennings Limited and Liverpool City Council in regard to refusal of a sub-division of Lot 2333 DP 1063178 on the corner of Dalmeny Drive and Venezia Streets, Prestons. 2 The council received a development application in 2001, seeking consent for a sub-division of 21 community title lots and one public reserve lot and one residue lot and associated road and drainage works. It was considered that it was inconsistent with the provisions of the Liverpool Local Environmental Plan 1997, Development Control Plan 8-Natural Assets, and Development Control Plan 31-Sub-division of Land in Hoxton Park-Carnes Hill-Prestons Residential Release Areas. 3 The application was later amended to seek approval for a 15 lot sub-division, comprising 14 residential lots and one residue allotment with a proposed road accessing the Dalmeny Road frontage. This was also considered as a failure to satisfy the objectives of the Local Environmental Plan and was inconsistent with Development Control Plans 8 and 31, in that it did not substantially retain existing vegetation or minimise the impact on significant environmental land. Also the sub-division layout was contradictory to the Development Control Plan map for DCP 31, as it failed to retain bushland identified on the map as bushland preservation. 4 The proposal was again amended in response to the issues raised by the council and the application before me seeks approval for a 9 lot sub-division comprising, 8 residential lots fronting Venezia Street and one residue lot, proposed Lot 2400 to be dedicated to council as community land. Within that allotment, there is to be provision for a 15 m Outer Asset Protection Zone in accordance with Planning for Bushfire Protection 2006. 5 The extensive flora and fauna reports and the council officer's report by Ms N Stewart, Town Planner, has concluded that the proposal is now consistent with the objectives and relevant standards in the applicable LEP and DCP. It provides a balance between conservation and development, and the development protects and enhances the natural environment of the City of Liverpool by substantially retaining environmentally significant bushland. 6 The proposal, as now before me, is not entirely consistent with "Map 3 of 3" of Development Control Plan 31, in that proposed lots 2401 to 2408 are in areas on "Map 3 of 3" identified as bushland preservation. However, contrasted with this is an amendment to the LEP in 2004, a map of which is in Exhibit 4. It shows more detailed investigations had reduced the area of sensitive bushland to include only Lots 2401 to 2405. The rest of the sensitive bushland is contained within the lot to be dedicated, namely 2400. 7 Ms Stewart said that since that time, and during the course of the application, the detailed studies on flora and fauna had identified that Lots 2401 to 2405 also should not be classified as being sensitive land. Under the applicable control in the statute, namely cl 16(1) the studies had shown that the area of important vegetation, habitat corridor and habitat and the area that is suitable for bushland regeneration, does substantially retain the existing Cumberland Plain vegetation on the site. Also the proposal would not detract from the scenic qualities of the area, particularly in that it would retain a major area of the site as bushland conservation as seen from Dalmeny Drive. It is the principal ring road through the suburb. Also the proposal as amended would enhance the habitat to native fauna by the conservation measures intended. It will preserve the ecological communities listed under the Threatened Species Conservation Act 1997 and will maintain and preserve the linkage between the significant remnant vegetation located on the subject site and adjoining properties. 8 The whole of the site is zoned Residential 2(a) under the Liverpool Local Environmental Plan 1997 and the proposed subdivision is a permissible use with consent. 9 At the commencement of the hearing today, an intervener attended the Court representing the owner of Lot 101, DP 865917 on the southern boundary of the subject site. Lot 101 is currently an isolated lot, however "Map 3 of 3" of the Development Control Plan indicates a future road along the southern boundary of proposed Lot 2400 to give it access. The land between Dalmeny Road and Lot 101 is already dedicated as a Public Reserve zone 6(a) and it has been developed as a playground area and contains only a very small portion of the sensitive bushland. 10 The owner of Lot 101 was concerned that the dedication of the whole of Lot 2400 as sensitive land and bushland conservation area would forestall any access to his land. The notice of motion to intervene in the hearing was granted so that the applicant could make known the concerns to the Court as they did not appear to be dealt with in the matters before me. 11 The parties negotiated with the intervener during the hearing and it resulted in the intervener and the parties agreeing to Exhibit I2 being amended condition 4A in the draft conditions being Exhibit 10. This would preserve a strip of Lot 2400 as operational land, it would not dedicate the strip as roadway, but it would maintain the potential for that strip to become an access to Lot 101. 12 Another part of the negotiations was that in Dalmeny Drive at the intersection of Bomaderry Street, there is a large roundabout which fronts the public reserve to the south of the subject site and is coincident with the drainage reserve which runs past the southern boundary of Lot 101. It seems that this is a much more appropriate location for an access through to Lot 101 and a roadway is permissible in both zone 6(a) Public Reserve land and the zone 5(a), Special Usage Drainage land. The council agreed that it would commence negotiations with the intervener immediately in order to locate the access to Lot 101 in that position. 13 It is my opinion that those negotiations should proceed immediately and concurrently council should consider an amendment to the development control plan "Map 3 of 3" of DCP 31 in order to amend the bushland preservation area on the subject site and also to relocate the proposed access to Lot 101. 14 Ms Stewart said that she would recommend such an amendment to the council for its consideration as it would ensure that any access to Lot 101 is not along the southern boundary of Lot 2400. Access there is undesirable even at the nominated width of 10.5 m shown on the DCP map because it would bring the access into part of an existing creek and vegetation that is an intrinsic part of the area to be conserved. 15 Although Ms Stewart considered a relocation of the roadway as a minor change to the DCP under clause 1.9 of DCP 31, the respondent did not believe it is an appropriate matter for the Court to determine as an amendment to the development control plan. This is due to the negotiations involving the intervener and also it would need the consideration of other technical experts prior to such a change being authorised. 16 The application as it now stands before me is eight residential lots, ranging in size from 477 to 637 sq m in area, fronting Venezia Street. The area of Lot 2400 is about 9098 sq m. The conditions of consent require a vegetation management plan to be prepared prior to any Construction Certificate for the subdivision and that plan would be implemented by the council subsequent to it obtaining ownership of the land. 17 In regard to the New South Wales Threatened Species Conservation Act 1995, the technical studies had discovered Forest Red Gum Grey Box woodland is considered to be a remnant of former extensive stands of the endangered ecological community Cumberland Plain Woodland, also known as the Shales Plain Woodland. This ecological community is listed on New South Wales and Federal threatened ecological schedules under the New South Wales Act and the Commonwealth Environmental Protection and Biodiversity Act 1999. In addition, the Cumberland Plains snail meridolum corniovirens was observed in the fauna survey of the site within the Forest Red Gum Grey Box Woodland vegetation community. It is also listed as an endangered species under Schedule 1 of the Threatened Species Act. 18 The amended proposal, which includes the dedication of Lot 2400 is of particular value in relation to the following: (a) The land is currently exposed to a high level of access and degradation, protection and management of the remnant will improve its condition and long term viability. (b) It provides a buffer zone for adjoining bushland which is also identified in the Development Control Plan 31 map. (c) Protection and good management of this land will help to maintain the overall size of the larger area. (d) The loss and modification of the area being developed is unlikely to result in further reduction of local occurrence of the Cumberland Plains Woodland. 19 Based on the technical studies and these findings, it is my opinion that cl 16(1) of the LEP has been satisfied and there was no reason sufficient for refusal of the proposal. Also, there is compliance with Development Control Plan 8 Natural Assets because it would retain substantial amount of vegetation on the site. The proposal is unlikely to impact on the long term viability of the bushland on the site and on adjoining land. The proposal retains the existing connectivity and the continuity of bushland remnants and contiguousness with them in the locality. 20 It seems that in regard to the non-compliance with Development Control Plan 31, the more detailed technical studies, which have been part of the evolution of this application has in fact refined that document de facto as presented before me today such that approval of the proposal would still achieve the objects and intents of that Development Control Plan. Also, the Rural Fire Services requirements can be incorporated into the proposal without adversely affecting the bushland or habitat objectives. 21 The parties came before the court with draft consent orders which have been amended as a result of negotiations with the intervener during the hearing and those amendments are included in Exhibit 10 and Exhibit I2. 22 The orders of the court by consent of the parties are: 1. The appeal is upheld. 2. Development Application No. 439/2002 for the subdivision of Lot 2268 DP 1063178 into 8 residential lots plus one residual lot to be dedicated to Council for the purpose of a public reserve is determined by the granting of development consent subject to the conditions in Annexure 'A' hereto. 3. The Court notes the Council's intention on the transfer of proposed Lot 2400 that the land be classified as Community and Operational (pursuant to condition 4A of the conditions annexed hereto) Land and categorised as natural area pursuant to s 36 of the Local Government Act 1993. 4. Exhibits are retained. ___________________ K G Hoffman Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.