Land and Environment Court of New South Wales CITATION : Smyth Maher & Associates Pty Ltd v Coffs Harbour CC [2006] NSWLEC 412 APPLICANT Smyth Maher & Associates Pty Ltd PARTIES : RESPONDENT Coffs Harbour City Council FILE NUMBER(S) : 11445 and 11446 of 2005 CORAM: Hoffman C KEY ISSUES: Development Consent :- refusal of consent for dwellings on rural lots, bushfire, landscaping, view, privacy, endangered species, statutory clarification Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Ulmarra Local Environmental Plan 1992 State Environmental Planning Policy No 1 DATES OF HEARING: 04/09/2006, 05/09/2006 and 17/10/2006 EX TEMPORE JUDGMENT DATE : 10/17/2006 APPLICANT Ms J. Reid, solicitor of Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr G. Fernie of G B Fernie & Co. JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 17 October 2006 11445 of 2005 Smyth Maher & Associates Pty Ltd 11446 of 2005 v Coffs Harbour City Council JUDGMENT 1 This is two Class 1 appeals, Nos 11445 and 11446 of 2005, between Smyth Maher & Associates Pty Limited and Coffs Harbour City Council in regard to the refusal of consent for a dwelling on each of two rural lots. A third appeal, No. 11444 of 2005, has been discontinued apparently due to unresolvable issues regarding bushfire protection on that allotment. 2 Appeal 11445 relates to Lot 64 DP 731384 and DA 129/05 at the corner of Sharpe Drive and Tiffany Close, Corindi on the coastal escarpment of the Dirty Creek Mountain Range. 3 Appeal 11446 relates to Lot 70 DP 731384 and DA 130/05 at the corner of Bonita Drive and Alice Close, Corindi on the coastal escarpment of the Dirty Creek Mountain Range. 4 Lot 64 has on the opposite or west side of Tiffany Close one neighbouring house owned by resident objectors, Mr and Mrs J and C Best. Lot 70 has a neighbour resident in the next but one allotment to the south, a Mrs Y Forbes who had written an objection. The third objection came from Blueberry Farms Australia who own and operate extensive blueberry orchards west of the subject properties across both Alice Close and Tiffany Close. The residents' objections were to do with clearing of vegetation, loss of views, loss of privacy and lifestyle, impact on natural fauna, especially injured fauna that the Bests hospitalise on their property in conjunction with the local wildlife society until the animals and birds could be released to the bush. They were also aware that emus used the area as a transit route from feeding grounds and suspected other endangered species used the area as habitat. 5 There was thought to be some endangered plant species on site; specie Persoonia that is emu foraging vegetation used during transit. Bushfire was another consideration. Also the objectors had the impression that the subject lots could not be built upon except for rural workers' dwellings which the proposal did not intend. The houses, if approved, would be sold on the free market. 6 The blueberry farm was concerned about dwellings near their orchards that might be affected by farming operations including spray drift et cetera or vice versa future resident pressure to reduce farming operations. 7 The issues at the time of the hearing had been reduced by agreement between expert town planners for each party. The lost issues resulted from a decision by Lloyd J on 5 May 2006 in regard to the permissibility with consent on the prohibition of dwellings on the subject lots. 8 The complexity of these matters arose partly from the history of the statutory framework. The land had, before 1992, been part of Ulmarra Shire and the subdivision for the blueberry farms and the house lots was approved under IDO No 1 and LEP No 7 in 1985. The blueberry farms were established but few houses were built on the lots reserved for that purpose. At the time, a reading of the statutes may have indicated the lots were only for rural workers' dwellings. The locality then became part of Pristine Waters Council in 1992 and later in 2005 became part of Coffs Harbour Council. 9 If I can summarise His Honour Justice Lloyd's finding on the applicable statute, it was the Ulmarra Local Environmental Plan 1992. The applicable clause for these lots is 15(3) for land in Rural Zone 1(h). He found that cl 15(3)(e) which required substantial horticultural development in accordance with cl 15(1) is a development standard. The clause in 15(1) of most concern was 15(1)(a) that required at least ten hectares capable of horticultural production for a house to be permissible. These lots are 1.006 ha for Lot 70 and 1.071 ha for Lot 64. 10 The Honourable Judge found that as a development standard, the minimum area of 10 ha in cl 15(1)(a) was capable of variation under State Environmental Planning Policy No 1. 11 There is no statutory provision that requires any houses on the lots to be for rural workers. The expert town planners, Messrs Blackburn and Smyth, in Exhibit 4, had agreed that the State Environmental Planning Policy No 1 objection prepared by Mr Smyth showed that compliance with the standard is unreasonable and unnecessary in the circumstances of the case. And that, on planning grounds, with suitable conditions, the proposals on these lots in this case should be approved. Mr Smyth's and Mr Blackburn's adopted reasons for this are: 1. The limited area available in each lot is insufficient to establish substantial horticultural development. 2. The approved lots were designed for rural residential living. 3. Substantial horticultural development has been commenced and maintained on the majority of lots elsewhere within the approved subdivision that contains the subject lots. 4. The subject lots contain only 10% of the ten hectare average area required for horticultural production in subcl 15(1)(a). 5. A variation to the development standard can only apply to the 12 small allotments with areas of approximately one hectare in the subdivision and cannot create an undesirable precedent in the locality. 6. The variation will not raise any issue of significance to state or regional planning in this particular case. 7. There is no public benefit in maintaining the development standard. 12 The application of the Standard was considered by the town planners to be unreasonable and unnecessary for the following reasons: a) Strict application of the Standard would not achieve the commencement of substantial horticultural development on each of the subject lots. b) The application of the Standard would sterilise the use of existing lots approved for rural residential living. c) The application of the Standard would sterilise the development of the lots for the erection of a dwelling house. 13 The planners also said the objectives specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 to which the application of State Environmental Planning Policy Number 1 must not hinder are as follows: "(a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land" 14 The existing subdivision that includes the subject lots has been planned and approved by council to ensure the proper management and development of this area for horticultural production. 15 The subdivision promotes and coordinates the orderly and economic use and development of the area for horticultural production and includes the potential for rural residential style living in proximity to horticultural production. Maintaining the development standard in respect of the subject lots would hinder the social and economic welfare of the community and the orderly and economic use of the subject lots by sterilising their use for rural residential living and the erection of a dwelling house thereon. 16 I agree with Mr Smyth's reasons and therefore uphold SEPP 1 objection. Turning to the remaining issues, they are the same in both appeals, namely: 1. deleted, 2. deleted, 3. deleted, 4. deleted, 5. deleted, 6. the applicant has carried out an inadequate flora and fauna assessment in order to determine whether the proposal is likely to significantly affect threatened species, populations or ecological communities or their habitats pursuant to s 5A of the Environmental Planning and Assessment Act 1979. 17 Further particulars 6.1. The applicant's flora and fauna assessment dated December 2004 does not adequately address the applicable factors set out in s 5A of the Environmental Planning and Assessment Act 1979. 6.2. The flora and fauna assessment does not clearly identify and particularise the vegetation that is proposed to be removed both at the location of the proposed dwelling and in the bushfire asset protection zones. 6.3. The flora and fauna assessment does not adequately identify or assess the impact on the threatened species, Melicrus Hirsutus and Persoonia species which are growing on the site including whether they will be removed or disturbed. 6.4. The flora and fauna assessment does not adequately identify or assess the number, location and habitat value of all trees that are proposed to be removed or disturbed. 6.5. The flora and fauna assessment does not include any nocturnal searches to assess whether any threatened species are present on the site and their habitat. 7.0. In the event that the proposal is likely to significantly affect threatened species, populations or ecological communities or their habitats, a species impact statement would be acquired to accompany the application pursuant to s 78A(8)(b) of the Environmental Planning and Assessment Act 1979 which has not occurred. 8.0. In the event that the proposal is likely to significantly effect threatened species populations or ecological communities or their habitats, the concurrence of the Director General of the Department of Environment and Conservation, pursuant to s 79B(3) of the Environmental Planning and Assessment Act 1979 is required which has not occurred. 18 On site on the first and second days of the hearing, I heard from the bushfire and ecological experts, Messrs Hattaway on bushfire and Hawkins and Leonard. I became concerned, as had the respondent that the impact on habitat by the bushfire protection clearing and the verification of the existence or not of endangered species on the properties had not been the subject of sufficient on-site surveys. An eight part test that had been carried out from preliminary work and had found no threat to habitat or species, except for the possible impact of tree clearance. 19 Species Persoonia vegetation was easily seen and identified on site but the ecologists were content the majority of stems would be retained as each house would have a curtilage called the "house site" of only 1500 sq m in each 1 ha lot. The remainder of the lot would be kept as bush land. Supplementary planting could also be conditioned to maintain the transit route food for the emus. Fences could be limited in height to enable kangaroos, wallabies and emus and smaller fauna to pass through. The other suspected vegetations specie melicrus hirsutus was proven to be not on either site. 20 During the adjournment the bushfire expert and the inspector for Rural Fire Service and the ecologists had inspected the site and, after accurate survey and marking of all trees needed to be cleared for bushfire protection, they were able to come to a conclusion that no adverse effect on flora or fauna or endangered species would occur. Mr Hawkins in Exhibit O had carried out night surveys for suspected endangered species of fauna being the squirrel glider and the little Bent Wing bat and concentrated on trees with hollows that might provide roosting places. No endangered species were found that would make the locality into a habitat even though the trees were in flower such that might attract them. Only one Bent Wing bat was recorded traversing the area. 21 On vegetation transects of the area, it was found that there was only limited occupation by Persoonia and Banksia and Allocasuarina but the established existing densities would assist in the supplementary plantings to be carried out and the densities did not constitute a specific habitat for those vegetation species. 22 In Exhibits N and P, the bushfire and ecology experts found that the bushfire requirements could be met and there was no habitat or endangered specie under s 5A of the Environmental Planning and Assessment Act 1979 that could be threatened by the proposal. 23 In summary, the sites outside the 1500 sq m house site would be retained as natural bushland and managed for bushfire as in an asset protection zone. All outbuildings, tanks, sewerage waste disposal systems, houses and associated infrastructure would be kept within the 1500 sq m house site on each lot both for bushfire protection reasons and to ensure the remaining areas of each lot remain natural. 24 The experts now all agreed that, subject to appropriate conditions, the applications could be approved and these were tendered in Exhibits Q, R and S. The respondent submitted that having refused the proposals, the council was functus officio and could not formally enter into consent orders but now supported the evidence and the granting of consent subject to the applicant's draft conditions. 25 In considering the objectors' concerns it seems to me that the expectation of no other houses on nearby or adjoining allotments is an unrealistic expectation given the history of the whole blueberry farm and small allotment zoning in DP 731384 and the applicable statutes that control the uses. 26 In the case of the Bests the discontinuance of Appeal No. 11444 of 2005 had avoided any loss of view through the trees to the coast from their house. The windows that they said they would need to put curtains on for privacy in fact faced the street so it was unreasonable to expect total privacy. The nature of any impact would mostly be by the passing of cars along the street from time to time. 27 The proposal at Lot 64 near their house had placed the proposed house site and building to the north of the Bests' house where reasonable privacy between neighbours might be maintained. The conditions of consent and ecological investigations had shown that flora and fauna corridors and transit routes could be maintained and there would be no significant effect upon any threatened species, populations or ecological communities or their habitats. The Bests' operation of voluntary wild life rehabilitation should be able to continue. 28 In the case of the Forbes, their house is at the end of Alice Close and would not get passing traffic from the proposal on Lot 70. The other concerns being similar to the Bests, I have found not to be sufficient for refusal for similar reasons. The Blueberry Farms' objections had been investigated by the respondent and not raised as an issue so I take that no further. 29 The other statutory requirements of potable water supply and waste disposal, the parties were satisfied that they could be dealt with by appropriate conditions. The water can be supplied by rainwater or tanker being a rural area. The waste treatment will be by an aerated system that can re-use effluent for irrigation within the 1500 sq m house site area, thus not causing any excessive nutrient load within the bushland area to be retained. 30 Overall, I have come to the conclusion that there are no reasons sufficient for refusal and the orders of the Court are: Appeal No. 11445 of 2005 1 The appeal is upheld. 2 Development consent is granted for the erection of a dwelling house at Lot 64 DP 731384 Kathleen Drive, Corindi, corner of Sharpe Drive and Tiffany Close, subject to the conditions in Annexure A hereto. Note: Costs of the proceedings are reserved. Appeal No. 11446 of 2005 1. The appeal is upheld. 2. Development consent is granted for the erection of a dwelling house at Lot 70 DP 731384 Sharpe Drive, Corindi, on the corner of Bonita Drive and Alice Close subject to the conditions in Annexure A hereto. Note: Costs of the proceedings are reserved. ___________________ K G Hoffman Commissioner of the Court Ljr/rjs 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.