Land and Environment Court of New South Wales CITATION : Wilson v Great Lakes Council [2006] NSWLEC 716 APPLICANT Warren and Jan Wilson PARTIES : RESPONDENT Great Lakes Council FILE NUMBER(S) : 11543 of 2005 CORAM: Hoffman C KEY ISSUES: Subdivision :- Size and shape of allotments, overlooking, privacy, undesirable precedent, bushland conservation, character of zone, scenic protection Great Lakes Local Environmental Plan 1996 LEGISLATION CITED: Development Control Plan No. 31 State Environmental Planning Policy No. 71 – Coastal Protection DATES OF HEARING: 30/10/2006 and 13/11/2006 DATE OF JUDGMENT: 11/20/2006 APPLICANT Mr P Tomasetti, barrister Instructed by Mr D Balog, solicitor Of: D C Balog & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr M C Fraser, barrister Instructed by: Mr P Rees, solicitor Of: Mallik Rees JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 20 November 2006 11543 of 2005 Warren and Jan Wilson v Great Lakes Council JUDGMENT 1 This is the judgment in appeal 11543 of 2005 between Warren and Jan Wilson and Great Lakes Council in regard to the refusal of a two-lot subdivision at No. 1 Carmona Drive, Cape Hawke via Forster. The subject property is in two lots and Lot 1 DP722679 and Lot 1 DP248203. The former is part of an old road reservation acquired by the applicant and it directly adjoins the northern boundary of the latter allotment. Together they comprise an area of 2.34 ha. The minimum lot size for subdivision in the locality is 1 ha. 2 Carmona Drive is in the foothills of the Cape Hawke headlands. Cape Hawke Drive runs from Forster through rural land to the foothills and then over to the headland through coastal bushland. At the start of the climb into the bush Carmona Drive diverts to the south and No. 1 Carmona Drive is on that corner. It presents to the street as a grass paddock with an attractive concrete and brick driveway winding across it passing through trees and over a small bridge over a creek and disappearing up the hill amongst landscaped gardens. 3 The drive crossing from the road is shared with No. 258 Cape Hawke Drive and then the two driveways separate. On No. 258 there is a house set in lawns a little distance from the entry more or less in the same visual catchment as the grassed paddock at the front of the subject property. 4 On entering the site and passing across the small bridge one ascends the hill on a curved driveway through the landscaped gardens to another group of trees within which the existing house is situated. Beyond the house and further up the hill is bushland being dry sclerrophyl forest. 5 The allotment is generally rectangular running up over the ridge of a spur and down the other side into rainforest which forms part of the boundary with the Booti Booti National Park which includes the headlands of Cape Hawke. 6 The locality is zoned No.1(d) under the Great Lakes Local Environmental Plan 1996. This zoning extends along the northern side of Cape Hawke Drive from the Residential Zones of Forster. At the foothills the Zone includes a number of allotments east of Carmona Drive. 7 Adjacent and near the subject land to the south are four other allotments of approximately the same size as Lot 1 DP248203, all are Zone 1(d). As a matter of historical interest those five blocks were created in about 1974 under the then current statutes requiring a 2 ha minimum lot size. 8 The land zoned 1(d) on the northern side of Cape Hawke Drive had been subdivided some time later and together with some other land at the end of Carmona Drive were approved at a time when the applicable statutes allowed lots down to 0.5 ha in area so long as there was an average of 0.75 ha overall. Since that time with the advent of the current local environmental plan the 1(d) Zone permits a minimum lot size of 1 ha. 9 On the subject property both of the allotments had a theoretical entitlement to a dwelling and there was an existing dwelling on Lot 1 DP248203. Due to the small size of the other allotment and its being partly within a gully area, the proposal is to create two lots of more than 1 ha each by way of "boundary adjustment" under the applicant's terminology and "subdivision" under the respondents terminology. One allotment includes most of the front area to Carmona Drive extending up towards the existing house, thence including the old road reservation allotment in order to extend that allotment further uphill utilising half of the rear bushland component of the site to create the proposed Lot 11 with area of 1.26 ha. 10 Proposed Lot 12 would include the existing house and the other half of the rear bushland area with a total area of 1.08 ha. 11 There is to be a right-of-way over the driveway such that both houses would use it. Also on the northern side of the existing house across the old road reservation part of Lot 11 there would be an easement for access in favour of Lot 12 to enable maintenance of a bushfire asset protection zone for the existing house as required by the Rural Fire Service. 12 A feature of the subdivision is that the rear area of the allotment uphill of the existing house and over the ridge into the next gully contains valuable habitat and forest. It is proposed to conserve and protect these areas as a buffer to the Booti Booti National Park vegetation. The subject application has resulted from the council being unwilling to accept dedication of the rear bushland as a public property, and also being unwilling to approve allotments with less than the minimum required area. 13 The council's issues in the appeal are: Definitions : "Land" comprises Lot 1 DP248203 and Lot 1 DP722679. "Development" is the subdivision of Land into two lots comprising: Lot 11 1.26 ha Lot 12 1.08ha 1. Clause 8(3) Great Lakes LEP 1996 Whether the proposed development is consistent with Objective (a) of the 1(d) Rural Holdings zone. Particulars The development is not for the purpose of small rural-residential holdings. The land is unsuitable for the proposed development because of its slope (Clause (a)(i); and the development of Lot 11 will not maintain the amenity of. the existing rural-residential lots in the locality (Clause (a)(iv)). The likely position of the building envelope on Lot 11 is within a visually prominent position on the land (Clause (a)(iii)). The elevated position of the building envelope and the close proximity to the dwelling house on the adjoining Lot 258 will adversely impact upon the amenity of the dwelling house. This impact will be from casual overlooking and upon acoustic privacy. The amenity is also adversely affected by the overlooking of other occupied neighbouring lots within DP 248203 by the dwelling site on proposed Lot 11. 2. State Environmental Planning Policy No. 71 The land is in the Coastal Zone. The subdivision is inappropriate for the location (cl. 8(a) and Aims cl. 2(1)(g) and (k). The type, location and relationship of the subdivision with the surrounding area are inappropriate (cl. 8(d), (f) and (p)). Particulars The subdivision is not suitable given its location. The size. and shape of the allotments fronting Carmona Drive in the immediate vicinity of the land allow the retention of remnant vegetation, protect the gully in the western section of the land and allow for the development of a dwelling house within the centre of the allotments, which are relatively flat and are situated away from property boundaries. The subdivision will not achieve these and will adversely impact upon the existing character of the neighbourhood. It inevitably will result in the development of a dwelling house in an inappropriate location on Lot 11. 3. Development Control Plan No. 31 - Subdivision Whether the development complies with the objectives of the Great lakes Development Control Plan No. 31 - Subdivision . Particulars The development does not meet the following objectives of the Development Control Plan: "Ensure that the pattern of subdivision reflects and follows the natural features of the site rather than imposing an artificial geometric pattern simply to satisfy the minimum area standard or specific dimensions." (page 2) "Ensure that new lots are in character with the locality and the specific landform, vegetation, soils and geology of the site." (page 3)." The development will result in a significant alteration to the set subdivision layout and character of Carmona Drive and will provide a semi-residential density to a locality set aside for small holding development. The development will result in the creation of Lot 11, which is of an unacceptable pattern, does not provide a suitable location for a dwelling house, and is not consistent with the character of development in the immediate locality. 4. Precedent Whether approval of the development will result in an undesirable precedent which will erode the set subdivision pattern and character of the eastern side of Carmona Drive. Particulars The eastern side of Carmona Drive has five rectangular allotments that are of a similar size and shape. These lots provide, centrally, a suitable flat area for the development of a dwelling house on each lot. Each lot maintains an extensive area of vegetation in its eastern portion. Each ensures that development on it does not impinge upon the creek line traversing the western section of the allotment. The creation of Lot 11 and the development of an additional dwelling house on it will set an undesirable precedent for the further subdivision and development of similar sized allotments in the immediate locality, and be inconsistent with the established pattern referred to in the previous paragraph. 5. Public Interest Whether the development is in the public interest. Particulars The development is not in the public interest. In 2006, the Respondent, undertook a survey of residents in the 1(d) Small Holdings Zone (within the Cape Hawke locality) to determine whether residents were in favour of further subdivision. 98 landowners were sent a questionnaire and 65 responses were received. In reply to the question " What are your views in regard to subdivisions in the Cape Hawke area into smaller lots than those which currently exist ?" 51% replied in the negative, 42% in the affirmative, 3% neutral and 4% other. 14 The respondent's evidence was heard from: o Mr G J Handford, council's director of environmental services; o Mr M J Bell, senior environmental ecologist of the Great Lakes Council who provided flora and fauna reports. He was not required for cross examination. 15 The applicant's evidence was heard from: o Mr G N Maberly-Smith, consultant town planner and o Mrs J M Wilson, applicant. 16 The respondent was concerned in particular about the objectives of the Rural 1(d) zone under the Great Lakes Local Environmental Plan 1996 which stated the small holdings zone of relevance to this appeal objective 1(a): "to enable development for the purpose of small rural residential holdings and dwellings to be carried out: (i) on land which is suitable for a development; (ii) which is unlikely to create a demand for the uneconomic provision of services, (iii) which will not significantly detract from the scenic quality of land within the zone and (iv) which will maintain the amenity of existing rural residential lots in the locality. 17 In the zone, development for the purpose of bushfire hazard reduction and dwelling houses are permissible without development consent. 18 The applicant had prepared a conceptual dwelling house for the proposed Lot 11 and designated a house site and envelope as part of the development application. The applicant sought that the house site envelope not be made a condition of any consent. 19 Another clause of the local environmental plan had a bearing on the application. Clause 18 says it is permissible to have an attached dual occupancy on a 1 ha allotment but not detached dual occupancies. The other applicable control put to the Court was Development Control Plan No. 31 for subdivision which had the principal aims relevant to this appeal: In cl 1.1.2(a) Protect and Enhance Environment and (b) Protect the amenity of existing development ensuring a high standard of design and construction in new subdivisions. 20 In the same clause there were particular aims for the rural and environmental zones of subdivision: a) ensure that the pattern of subdivision reflects and follows the natural features of the site rather than imposing an artificial geometric pattern simply to satisfy minimum area standard or specific dimensions; b) ensure the proposed lots do not fragment agricultural viable land; c) ensure the lots created, avoid or make provision to minimise the likely affect of natural hazards; d) ensure that the size, shape and characteristic of new lots are appropriate to the zoning and the possible range of uses; e) protect the scenic value and natural habitats of rural land; f) ensure that new lots are in character with the locality and specific land form, vegetation, soils and geology of the site; g) encourage the economic utilization of land resources in the area; and h) ensure the provision of adequate building area, vehicle access and services of the site. 21 Under cl 5.5.2 the design principles were: a) allotment boundary should not follow watercourses; b) If the site contains areas of significant vegetation the subdivision boundary designed so as to minimise the clearing of land; c) boundaries over hills, ridgelines and elevated areas shall be designed so as to minimise visual impact as a result of clearing; d) all subdivision boundaries are to be designed so as to ensure the best practical location for fence lines and fire trails; e) plans are to be submitted showing the proposed boundaries and all site improvements including buildings, dams, etc. and f) proposed allotments will indicate a dwelling site that allows for reasonable sunlight access. 22 Included in the applicant's evidence was a flora and fauna assessment by a specialist consultant from Geolyse Pty Ltd and it had proposed measures for the protection of bushland areas uphill of the existing house. 23 These had been the subject of discussion with the council's ecologist and it had been agreed that the protection measures for the bushland were entirely acceptable. There would be conditions on the land title of each allotment for the positive protection measures to be implemented by the owners of each of the new lots to ensure that the buffer area to the Booti Booti National Park is conserved into the future. 24 Geolyse Pty Ltd had identified the necessary bush fire asset protection zone and this had been certified by the NSW Rural Fire Service by a letter in evidence dated 10 November 2004. It would prevent the construction of any buildings or structures within the protected bushland area, and the need for the access driveway to be capable of carrying a fully loaded fire fighting vehicle up to the existing house. That would also allow access to the proposed site of any second house on Lot 11. 25 Also included in the applicant's documents was a waiver from the Minister's office in the Department of Planning from the need to prepare a master plan under State Environmental Planning Policy No. 71 – Coastal Protection. 26 If I could summarise the Issues as they appeared to me in the evidence that I was given, the principal concerns of the council in refusing the application were: 1. the protection of bushland areas; 2. the subdivision pattern did not reflect the intentions of the 1(d) zoning; 3. the shape of the subdivision would mean that the privacy of the existing house on proposed Lot 12 would be compromised; 4. that the existing driveway and the pipe under the bridge to the creek as part of the driveway was unsatisfactory; 5. that the subdivision was out of character with the intended planning outcome of other allotments in the same zone, and would create a precedent. 27 In considering the intentions of the Rural 1(d) Zone, for small holdings the respondent emphasised that the intended outcome was for houses on large lots surrounded by green space as a transitional zone to the bushland particularly in this location of the Booti Booti National Park. It was said that the result of the subdivision being the existing house and a new house close together would create an appearance contrary to that character. 28 Having been in the locality and seen the site and the Rural 1(d) Zone, I note that in evidence were aerial photos in Exhibits 2, 8 and C, which, when compared to the zoning map in Exhibit 1, allowed the various localities and their intended character to be understood. 29 Immediately west across Carmona Drive is zone Rural 1(c) Land which is intended for future urban investigation. It is currently a dairy farm of probably 40 or 80 ha. In the future it will become urban of one kind or another. 30 The 1(d) Zone forms a transition between the future urban and the bush on the headland hills. The majority of the 1(d) Zone, as I have mentioned before, comprises allotments of between 0.5 ha and 1 ha in area with the subject land being one of the largest at more than 2 ha. Whilst the history of the re-zonings had resulted in the rural lots of different sizes and shapes, it is obvious that the council in the existing local environmental plan had chosen to place all of these allotments into the one zone having a 1 ha minimum site area. 31 In perusing the aerial photos it can be seen that many of the smaller allotments have large dwellings, set in pasture with occasional trees. Some of the houses are relatively close together due to the size of the allotments and the size of the houses and their out buildings. There may be some attached dual occupancies. 32 The subject property comprises the west facing hillside on which the existing house and the proposed house would be located with the ridge top bushland above and extending over the ridge beyond. It seems to me that the character of the subject land when taken overall is somewhat different to the rest of the 1(d) Zone, it has much more natural bush. However, the west facing hillside on which the two houses are proposed, approximate in density and proportion, of land to buildings, that which is seen elsewhere in the 1(d) Zone. 33 The council had correctly placed a high value on the rear section of the land containing the bushland and has required its protection. The applicant has accepted those conditions, and that the requirements would be placed on the title of the existing allotment. 34 The council's evidence, by suggesting that the subject allotment should be treated differently to those others in the 1(b) Zone appeared to ignore the large rear area that is to remain bushland. The subject land, and those four other properties to the south of it, are approximately 400 m deep x about 60 m wide. Whereas most of the other allotments are relatively square and much smaller in proportions. To some extent the bushland on the site can be read by the observer as part of the Booti Booti bush and separate to the west end of the subject land. This is a false impression. 35 I think it is reasonable to take into account the whole of the subject allotment, and given that comparison the proportions that the development upon it will occupy is similar to the others in the Zone 1(d). If the council had wanted the bushland to be treated differently one would think at the time of the 1996 Local Environmental Plan the council may have designated the bushland as a conservation area. Council had zoned land immediately behind the subject lot for conservation. The council had been offered the bushland for dedication as public reserve and had declined the offer. 36 The council has achieved one of its major objectives of preserving the bushland area, and in fact obtained a public benefit for the scenic beauty of the area, by obtaining agreement of the applicant to its protection by notation on land title. 37 The question of precedent I do not believe can be given any great weight as any precedent may only apply to the four allotments south of the subject property. However, I cannot agree even with that as a precedent since none of those allotments comprise two allotments such as the subject proposal, and where both lots have theoretical existing rights to a dwelling without the need for consent. Also the subject land can achieve more than 1 ha per allotment and therefore comply with the minimum standard whereas the other allotments to the south probably could not achieve the minimum area requirement. 38 The council put to me that the allotment shape necessary for Lot 11 to achieve its 1.26 ha was a contrived shape and should not be given approval because it separated bushland from the residential component thereby alienating the proposed future house site from the bulk of its land. It seems to me that the shape of the proposed allotments have been brought about by the original shape of the subdivision lot, being as I mentioned about 400 m long and 60 m wide, and the constraint of the bushland on its eastern half. The council's and the applicant's flora and fauna experts have agreed there is a major benefit to the scenic protection of the area in maintaining that bushland. The council's conditions require minimum human access into the area and that it should only be for the purpose of enjoying bush walking and for maintenance of the area by the removal of weeds and other conservation works. 39 Another aspect of the shape of the subdivision is that the northern boundary of proposed Lot 12 comes within 2 m of the deck and swimming pool on the northern side of the existing dwelling. The council said this would create totally unacceptable privacy concerns for the existing dwelling. The easement over that part of Lot 11 was in favour of the existing dwelling on Lot 12 so that the necessary Bushfire Asset Protection Zone could be maintained. That would mean the area would remain as lawn and garden and was unlikely to have privacy screen vegetation within in. That would mean persons from any proposed house on Lot 11 would have to pass by in close proximity to the existing house to get to the bushland at the rear in order to maintain it. 40 I note that the council's own conditions require minimum access to that bushland. In Mrs Wilson's case in her 10 years she said she had only been to the rear boundary on the far eastern end once, and worked or walked in the bushland area perhaps twice a year in order to enjoy and maintain it. It was her opinion that the number of times persons would be passing by the existing dwelling would not create a significant privacy impact, and if it did there would be a potential to either erect a screen fence or hedge vegetation on the common boundary to provide appropriate privacy. 41 Another concern of the council was that the proposed building site for Lot 11 was only 2 m from the common boundary with the proposed Lot 12 containing the existing dwelling. It was said that activities at the two houses would give rise to noise and visual privacy issues. I noted that the proposed new house site is downhill of the existing house by approximately 10 m in contour height, and below a heavily vegetated embankment of the existing house and in my opinion there is approximately 30 m lateral distance between the two dwellings. This would constitute quite sufficient separation for privacy and noise. When one views the development in the other areas of the 1(d) Zone there are quite a number of houses on their rural lots well within 30 m of their neighbouring houses and with no topographic or vegetative features to provide similar screening. 42 The council also complained that the house site alone was insufficient since people living on large rural lots usually had outbuildings and there was no provision for that elsewhere on proposed Lot 11. Proposed Lot 12 already had its outbuildings with sufficient space around the existing dwelling. It could be said that on proposed Lot 11 there are limited likely locations for outbuildings further downhill than the proposed house envelope. However, I think it is premature to say there were no suitable locations. 43 There is the question of flooding from time to time from the creek which would probably eliminate any new buildings within or near the Carmona Drive frontage. However, on lower slopes of the hill just above the bridge in the driveway locations, would be possible adjoining the driveway for any necessary outbuildings. Since dwellings only are permissible without consent, I assume a development application would be needed for any outbuildings and council could control that. 44 The conceptual house design in evidence included a large double or triple car garage beneath the single storey house and outbuildings may be unnecessary. It seemed to me that both houses could enjoy both privacy and views with adequate access. 45 The allotments have both sewer, water as well as electricity services on, and there is no requirement for additional services. The locality, as no doubt was considered by the council at the time of rezoning, is reasonably close to the urban areas of Forster and does not create any additional demand for council's facilities and services. It is also served by a good quality tarsealed road. 46 Council's concern over the so called contrivance of the irregular allotment shapes does not ring true when one observes the six allotments immediately north of the subject site, recently approved by council, and with new dwellings upon them located close to Cape Hawke Drive. All of these are extremely irregular allotments. They reflect council's recognition that one cannot always create subdivisions with regular shaped lots. In fact it must be noted that in the areas north of Cape Hawke Drive in the 1(d) Zone, it is only the principal service road which follows the contour, the subservient streets run up the contours of the hill and of course side boundaries of most allotments run up the contours of the hill. It is only the frontage and perhaps the rear boundaries of the properties that vaguely follow contour lines. To that extent one would think that the council's control plan should have referred to "service roads following contours" rather than boundaries. 47 In considering all these matters, the expert town planners had conferred and prepared a joint report in Exhibit 4. They had agreed that the issue in regard to the slope of the land had been resolved and it was not a reason for refusal. It was agreed that the objection to one of the previous applications, by No. 258 Cape Hawke Drive, was not repeated in regard to the subject proposal. It was also agreed that whilst it may be possible to see any proposed new dwelling on the subject site from the flat lands between Cape Hawke and Forster it was not a reason for refusal, due to the number of other rural dwellings that could be seen in the Rural Zone. 48 Dwellings being permissible without consent in Zone 1(d) there will be no opportunity to deal with at any future application for a dwelling. I have concluded that the site for the proposed future dwelling should be included in conditions of consent as it is an appropriate location and will control the likely impacts of future development, and any variation to the notations on title will need council's consent. 49 In regard to State Environmental Planning Policy No. 71, it seems to me that the proposal will meet all of the necessary requirements for scenic protection of the coastal zone due to the reservation of the bushland areas and the conditions of consent to protect it. 50 The experts did not agree on the fit of the proposal into the Rural Residential Character. In dealing with the Subdivision Development Control Plan in regard to the pattern of the rural allotments, it was notable that 83% of lots in the 1(d) Zone are less than 1 ha, 70% are less than 8,000 sq m in area and 53% are less than 7,000 sq m in area. It seems to me, as I have said before, no matter what the history of rezoning might be, within the current context of the planning controls the subdivision will be more in keeping with the current statutes and controls than some of the smaller previously approved lots. It is not surprising that the council survey said most owners in Zone 1(d) did not want smaller lots, they were probably thinking of the 0.5 ha sized allotments which comprise the existing majority. 51 Overall therefore I find no reason sufficient for refusal subject to appropriate conditions. In the draft conditions in Exhibit 9 the only disputed matter is the requirement for a new driveway to be constructed to higher engineering standards to reduce surcharge of the creek in flooding. I note the applicant's submission that the driveway had been built at some time in the past although the council did not appear to have a record of it. Up until now neither the council nor the Rural Fire Service had found the driveway wanting, and no orders to demolish or carry out works similar to those now sought had occurred. The applicant said the driveway was there 10 years ago when they bought the property and the house was build around 1979. 52 In the 10 years of occupation Mrs Wilson had seen the creek surcharge only once when their rain gauge registered 14 inches or 350 mm in a 24 hour period. The creek had broken its banks within No. 258 Cape Hawke Drive she said, and washed its gravel driveway across her front paddock on Carmona Drive with the flood waters rejoining the creek adjacent No. 2 Carmona Drive. She did not see any benefit in increasing the pipes under her driveway, her concrete drive had only a few inches depth of water across it. The applicant also submitted that the council engineer Mr Dowling, who posed the condition, had never produced a report for evidence, nor came as a witness and relied on a third person report that cars might be swept off the Wilson driveway. 53 The applicant's expert said the council's standard for driveways does not require the reconstruction sought. 54 I have concluded such a possibility of a car being swept off the drive seems unlikely when that portion of the Wilson Drive is relatively level as is the paddock it runs across and the creek surcharge pattern is sheet flow across the paddock of only a few inches depth. Without an engineer's calculation of flood flows and depth to justify the condition, I can give it little weight. 55 Condition 18 deleted. Condition 19 appears to have no work to do except where separate services connections to the existing and any new house are required near the street. I retain it. The applicant agreed an inter-allotment drainage easement is required and I insert that as Condition 18A. 56 The applicant submitted on Condition 23 that constructing a separate drive crossing from Carmona Drive would deny No. 258 Cape Hawke Driver its access. At the moment the crossing is shared. Also the applicant said the usual calculation of traffic from three houses is less than 25 per day, and the clear sight lines make the access quite safe for shared use. 57 The applicant agreed to construction a concrete dishdrain to the existing entry crossing to council's requirements and I substitute that for Condition 23. 58 The applicant accepted that a privacy fence adjacent the existing house on the north side should be erected as part of the subdivision works. I insert that as Condition 25. 59 Therefore the Orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to the boundary adjustment/resubdivision of Lot 1 DP 722679 and Lot 1 DP248203 Carmona Drive, Cape Hawke, as shown in Drawing 1 of 1 Job No. 5038 dated May 2006 by Wade Roberts as annotated to show the bush conservation area and including the future building envelope site for any future house on proposed Lot 11, and notations on the titles of both proposed lots, all as amended by any of the conditions in Annexure "A" hereto. 3. The exhibits are returned to the parties except Exhibits 1 and 2, Exhibit 3 tab 3 amended plans submission, 4, 5, 7, 8, 9 and Exhibit A tab 6 Flora and Fauna Assessment and Exhibit A tab 8 Bushfire Hazard Report. ___________________ K G Hoffman Commissioner of the Court 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.