Land and Environment Court of New South Wales CITATION : Roach & Anor v Pittwater Council [2007] NSWLEC 607 APPLICANT Peter Roach PARTIES : for and on behalf of Cariste Pty Ltd RESPONDENT Pittwater Council FILE NUMBER(S) : 10016 of 2006 CORAM: Hoffman C KEY ISSUES: Subdivision :- 2 lots to be subdivided under community title into 8 dwelling lots and 1 community lot, littoral rain-forest, endangered ecological community, visual and ecological impacts from clearing and bushfire requirements, landslip. Environmental Planning and Assessment Act 1979 State Environment Planning Policy No. 19 - Bushland in Urban Areas LEGISLATION CITED: Pittwater Local Environmental Plan 1993 Threatened Species Conservation Act 1995 Draft Pittwater 21 Local Environmental Plan Local Government Act 1993 CASES CITED: Sanctuary Investments v Baulkham Hills Shire Council [2006] NSWLEC 733 DATES OF HEARING: 24-27/04/07, 25/05/2007 and 13/07/2007 DATE OF JUDGMENT: 24 September 2007 APPLICANT Ms H. Irish, barrister Instructed by Mr Bennett of Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr A. Galasso, SC Instructed by Ms Dixon of Mallesons Stephens Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman 24 September 2007 10016 of 2006 Peter Roach for and on behalf of Cariste Pty Ltd v Pittwater Council JUDGMENT 1 This is a Class 1 Appeal No. 10016 of 2006 between Roach and Pittwater in regard to the refusal of a subdivision application for 2 large lots to be subdivided under community title into eight (8) house lots and one (1) community lot, the latter being the access driveway. 2 The site is 62 and 85 Hillside Road, Newport. It generally faces south, and is on the steep sides of a coastal hill at the dead end of a residential street. One of the subject large lots has an existing house, the other has a shack apparently lived in, but only accessible through bush across Lot 1 DP1036400. That lot is not part of this application and is at the actual dead end of Hillside Road. Nos 62 and 85 wrap around it, and their location in the topography forms an amphitheatre shape. 3 Although an irregular geometric form, as one measures around the amphitheatre from the boundary of the neighbour Lot 1 DP1036400, the subject site is 40-90m deep with a total area of 10,625 sq m. 4 The site is adjoined to the north, west, and south of the site by residential allotments with addresses to Kanimbla Crescent and Hillside Road. To the east, the site adjoins a substantial public reserve, called Attunga Reserve. Kanimbla Crescent is on a ridge at the south end of the Bilgola Plateau. Existing houses on the lots below the Crescent directly adjoin the uphill boundaries of the site. 5 The subject land, Lot 1 DP408800 is on the east side and Lot 2 DP 1036400 is on the west side of the neighbouring Lot 1 DP1036400. They both have frontage to the end of Hillside Rd, but the frontage to Lot 1 of the subject site is so steep access is not practical. The neighbour Lot 1 DP1036400 is a vacant lot and is relatively level. By walking through it and then to the east, relatively level access can be had to the shack. 6 There is a driveway to the house on Lot 2 of the subject site, and due to the contours around the amphitheatre making construction easier via that route, the proposal enlarges and extends the driveway to service proposed new lots on Lot 1 of the subject site. The proposal 7 The development application seeks approval for a Community Title subdivision of the two existing allotments into eight lots and one community lot. An access corridor-driveway is proposed to be constructed within the community lot to provide vehicular access to the land from the end of the Hillside Road cul-de-sac bulb. The development application indicates that proposed Lot 1 of the proposal will be accessed directly from Hillside Road. The remaining proposed lots No.s 2-8 will be accessed from the proposed access corridor. 8 The development application also proposes the demolition of two buildings on the land, which are presently situated within existing Lot 1 being the lower part of the site. These buildings appear to be used as a dwelling and an outbuilding and are in a state of disrepair. The existing dwelling on existing Lot 2 is to be retained, it is currently unoccupied. The issues Impact on threatened species, communities and their habitats 1. The development is likely to significantly effect threatened species, ecological communities or their habitats as listed pursuant to Threatened Species Conservation Act 1995 and: (a) is not companied by a species impact statement (SIS) and (b) concurrence of the Director General of National Parks and Wildlife has not been obtained. Particulars Significant impacts on Littoral Rainforest and the Powerful Owl. Controls Environmental Planning and Assessment 1979 section 78A(8) and 79B(3). Threatened Species Conservation Act 1995 . 9 ISSUE 1. was not pressed as an 8-Part test was accepted by the respondent to show no SIS is needed. 2. Unacceptable impacts on threatened species and endangered ecological communities and their habitats. Particulars (a) impacts on the littoral rainforest which is listed as an endangered ecological community; (b) impacts on the bushland will remove and modify habitat resulting in a significant impact on the Powerful Owl and removing habitat of the Grey­headed Flying Fox, microbats Chalinolobus dwyeri, Miniopterus australi and Miniopterus schreibersii and Kerivoula papuensis, Superb Fruit Dove, Wompoo Fruit Dove and the Squirrel Glider. Controls Environmental Planning and Assessment Act 1979 section 78A(8) and 79B(3). Threatened Species Conservation Act 1995. Pittwater 21 DCP Section B4.1 Flora and Fauna Conservation Category 1 Land Pittwater 21 DCP Section B4.4 Wildlife Corridors Pittwater 21 DCP Section B4.15 Littoral Rainforest Impact on bushland and native fauna 3 The development will result in an unacceptable loss of high quality bushland that is uncommon in the region (including loss of canopy), will impact on wildlife (flora and fauna) corridors and on bushland reserve. Controls Clause 9 of State Environment Planning Policy No. 19 - Bushland in Urban Areas; Pittwater Development Control Plan B4.1 Flora and Fauna Conservation Category 1 Land Pittwater 21 DCP Section B4.4 Wildlife Corridors Pittwater 21 DCP Section B4.15. Littoral Rainforest Geotechnical Instability 4 The Applicant has not made adequate provision for dealing with site stability and has not demonstrated measures that would ensure geotechnical stability of proposed subdivision and future dwellings on the site in accordance with Council's Interim Geotechnical Risk Management Policy. The measures likely to be required to ensure adequate provision of site stability for subdivision works and future dwellings will have unacceptable environmental consequences. Controls Interim Geotechnical Risk Management Policy and Pittwater 21 Development Control Plan Section B3.2 Landslip Hazard 10 ISSUE 4 was not pressed on the basis that landslip prevention could be subject of a condition of any consent. Adverse impact of altered groundwater and surface water on vegetation 5 The Applicant has not demonstrated that the impacts upon existing or proposed rainforest vegetation on the site and existing rainforest vegetation on adjoining sites likely to occur as a consequence of measures required to deal with site stability are acceptable. 6 Minimum Lot size Lot size of proposed Lot 1 is inadequate Particulars Proposed area : 748 sq m. Controls Pittwater 21 DCP Pittwater 21 draft Local Environmental Plan clause 5.2(4) Pittwater 21 Development Control Plan Section B2.2 (This requires a minimum Lot area of 1200m2 in recognition the environmental, visual, and residential amenity attributes of this land). 11 ISSUE 6 was not pressed as the statutory minimum lot size of 700 sq m is complied with. Construction impacts 7 Impacts of construction including all permanent structures (houses, driveways etc) and temporary disturbance (construction zones, construction of services etc) will have an unacceptable impact on flora and fauna when considered in isolation and cumulatively with the development as constructed. Visual impact from clearing 8 Extensive clearing of vegetation for both permanent structures and temporary construction activities as well as removal of vegetation for ongoing maintenance for bushfire protection measures results in unacceptable visual impact of the site when viewed from the surrounding locality. Controls Pittwater 21 DCP Section D10.3 Scenic Protection 9 Bushfire hazard Controls The development is on bushfire prone land and the applicant has not demonstrated that the bushfire risk of the development as now proposed is acceptable. Environmental Planning & Assessment Act 1979 s91 Rural Fire Ac t s10013 12 ISSUE 9 was resolved by the production of an Rural Fire Service (RFS) Certificate, but it was pressed as a reason why significant clearing of vegetation would be necessary in Issues 2, 3, 5, 7 AND 8. 13 The proposed development was initially considered as integrated development on the basis of works within 40m of a watercourse, and referred to the Department of Infrastructure, Planning and Natural Resources. The Department later confirmed that the proposed development does not constitute integrated development. The so called watercourse through the property was found to come from a council drain from Kanimbla Cresent that is on the ridge above the site. The pipe discharges above the subject property and has created a creek-like stream that cascades through the land from near No. 149 Kanimbla. The creek runs down past the eastern boundary of the neighbouring Lot 1 and through part of the next neighbour's lot No 60 Hillside Road, on its way to the public reserve (Porter's) at the foot of the hill. 14 The proposed subdivision is integrated development for reason of being subdivision of bushfire prone land and was referred to the NSW Rural Fire Service on this basis. The statutory controls 15 Zoning: o Residential 2(a) (Residential "A") under Pittwater Local Environmental Plan 1993 rPLEP"); o Residential Protection under Draft Pittwater 21 Local Environmental Plan ("Draft P21 LEP"); 16 Designated Area 1 (Dual Occupancy Prohibited) under the Dual Occupancy Control; designated Landslip hazard (Interim Geotechnical Risk Management Policy for Pittwater), Designated Habitat Category 1 & 2, Native Wildlife Protection; within a wildlife corridor; and adjoining a bushland reserve 17 The assessment controls are contained in Pittwater LEP 1993 18 Draft P21 LEP (Council resolved in February 2003 to exhibit and was exhibited from 5 January 2004 to 3 March 2004); and 19 Pittwater 21 DCP - noting that Pittwater 21 DCP came into force on 1 February 2004, and that Section A1.5 of the DCP has savings provisions that apply to this application. 20 The proposed development is permissible with development consent. The Evidence 21 The respondent's evidence came from: o Mr A Wotherspoon, ecologist and bush fire expert. o Ms Dalby-Hall, town planner. o Mr L. Dyce, council's Planning and Assessment Manager and Registered Surveyor. o Mr J Nolan, objector 42 Hillside Rd, Newport. o Mr B & Mrs J Lowde, objectors 11 Kanimbla Cres, Bilgola Plateau. o Mr M. Vahanian, objector 13 Kanimbla Crescent. o Mr J Carr, objector 58 Hillside Rd. o Ms T Fitzroy, objector 5 Kanimbla Crescent. o Ms R Gooding, objector 79 Hillside Rd. o Mr Falconer, objector 60 Hillside Rd, the immediate neighbour on the downhill side of Lot 1 DP408800 through which the creek flows. 22 A considerable number of written objections from the above and other persons were tendered in evidence, and many attended the Court visit to the site. 23 The applicant's evidence came from: o Mr D. Fanning, ecologist. o Mr G. Swain, bush fire expert. o Dr D Martens, geotechnical and environmental engineer. o Mr C. Hill, town planner. 24 The parties had agreed on a joint expert Dr. D. Robertson, ecologist, and that he should be appointed by the Court. The parties had agreed on a joint expert Ms A McCabe, town planner, and that she should be appointed by the Court. 25 A summary of the council's and the objectors' concerns are: o Although the official opinion is that the stormwater creek is NOT a "watercourse", no-one can deny that it acts as a creek, and flows almost constantly with volumes changing with the rainfall. It obviously plays a significant role in the life of the rainforest and the faunal habitat. o One of the proposed house sites is very close to the storm water creek. o The site is landslip-prone, and boulders have rolled down the hill onto Falconer's land in the past. Development of the land would de-stabilise it further. o Hillside Rd is a narrow street with embankments on the uphill side and steep slopes on the downhill side. Most houses have little on-site parking for guests or extra cars owned by family. They have to park on the street, and the narrowness plus parked cars makes it one-way in many places. The end of Hillside Rd is frequently congested from existing traffic and parking. The dead-end without a proper cul de sac makes turning difficult for cars, and very difficult for trucks or service vehicles. This existing situation occurs with the 3 lots at the dead-end of the street more or less vacant. It will be much worse with 7 additional houses plus the existing house, and eventually another house on the vacant lot, making 9 houses. The proposal does not appear to have any visitor parking, nor space for more than 2 family cars. o The natural amphitheatre already amplifies noise and reduces privacy/amenity for existing residents. The 7 additional houses and activities of the proposal would increase this. Two examples: the garbage truck frequently cannot turn at the dead-end due to parked cars and the driver sits on the horn until someone comes to move a car. Parties at any of the houses keeps all the neighbourhood awake. o The area has the highest bush fire hazard category, putting houses in it would be unwise. o Putting driveways and houses and the associated yards and ancillary structures on the site will destroy natural existing rainforest that covers almost the whole of the site. The rain forest is highly valued and a habitat for fauna, and a faunal corridor between the coastal flat and the plateau, and it should be preserved. o This is one of the few remaining significant rain forests in Pittwater and should not be lost. It is visually prominent as a coastal landscape feature being seen from public areas such as Barrenjoey Rd and Porters Reserve, and elsewhere. o The proposal shows a stormwater collection drain 350 m long around a contour at the top of the site. It is needed according to the proposal as part of the landslip prevention engineering, and will concentrate all water into the creek. Collecting the overland flows will cut off existing water supply to the parts of the rainforest said to be preserved by the proposal. Apart from the impact of clearing for subdivision and construction of services, driveways, houses, ancillary buildings and yards on land that is around 30 degrees slope the loss of overland water supply will mean the rainforest will not survive. 26 Dr Robertson said that almost all of the site is Littoral Rainforest and it is classified as an endangered ecological community under the Threatened Species Conservation Act 1995. At the end of all the expert evidence, it was agreed by both sides that a proportion of littoral rainforest would be destroyed, but the amount was in dispute. 27 Of the 1.06 ha site it was agreed the Littoral Rainforest (LRF) occupied 0.9 ha. Mr Fanning said that 0.02 ha of the 0.9 ha was poor LRF; and another 0.12 ha was either not LRF or already disturbed by existing house & shack and drive. He said, of the "good LRF" about 17.5% would be lost. This figure came from: o the evidence of Dr Martens in terms of ground water maintenance to counter the effect on LRF of the uphill collection drain needed for landslip prevention; and o Mr Swain on the extent of clearing needed for bushfire hazard, and o the landscape works proposed by Site Image Landscape Architects around the houses and driveways etc using endemic rainforest species. 28 Dr Robertson said these figures are misleading because the proposal destroys the heart of the LRF and preserves or re-creates rainforest-like landscaping around the perimeter of what was LRF. 50% of what the applicant says is "preserved LRF" is actually bushfire Asset Protection Zone (APZ). The existing closed canopy of the rainforest HAS to be opened to one extent or another depending on how one interprets the Rural Fire Service requirements to qualify as APZ. The very nature of LRF is a closed canopy of trees that provide the micro-climate for the LRF under storey vegetation. In this proposal, the rainforest understorey vegetation species have to be located in garden beds around driveways or around houses or ancillary facilities or lawn areas but cannot have the closed canopy environment needed for full LRF. It may be "rainforest-like" landscaping, but it will not be LRF. 29 The Pittwater 21 Development control Plan cl B4.15 says in part: o Development shall not remove or significantly impact on areas of LRF. o Development shall restore and regenerate areas of LRF. o Development shall not result in a significant loss of canopy cover or a net loss in native canopy trees. o Variations may be considered for activities listed in adopted Plans of Management and for development on parts of sites that do NOT contain LRF provided it does not impact on LRF, or, where development is in the area of LEAST impact on LRF and where there will be no net loss of native vegetation. 30 The applicant suggested what is, in effect, a trade-off for those planning controls. 31 The rain forest of the site overlaps onto Attunga Reserve to the east, but the heart of the rainforest is centred on the subject site, with the creek running down through the centre to Porters Reserve at the foot of the hill. The reserve is largely playing fields on level ground, whereas the subject site and Attunga Reserve are forest of one kind or another. 32 Attunga Reserve is Crown land with Council currently having grants and permission to do environmental management works in Attunga, but having no formal interest in the reserve such as being appointed Trustee. The reserve covers most of what is called the Newport Headland that stands out above the houses to the north of the town and beach. For the reader's orientation, Barrenjoey Road as it curves around the headland enters the section of road known as the Newport Bends above Bilgola Beach. 33 The applicant made an offer to enter into a planning agreement with Council under the Environmental Planning and Assessment Act 1979 for an offset arrangement to compensate for the loss of that part of the rainforest its experts agreed would be lost on the site. The agreement would endow funds of $100,000 in a trust for the maintenance and environmental management of Attunga. The applicant said the Court had the power in this hearing, standing in the shoes of the Council, to require such an agreement. 34 Dr Robertson considered such an agreement may be appropriate provided it was calculated on an area double the size put by the applicant's expert. This related to his assessment that the area said to be "retained LRF" will not really be LRF but will be "LRF-like landscaping". Also his understanding of other offset arrangements is that they worked on a two for one approach. 35 The respondent submitted that the council having no interest or title in the land could not enter into an offset arrangement even if it wanted to. In this case the council would not agree to an offset because it was proposed, really, as a justification for destruction of LRF. The real purpose of an offset where it has been used by other Authorities has been as a tool to get a managed result in circumstances envisaged under cl B4.15 above. In that clause it preserves the LRF or at least a major part of it especially the "heart". This proposal destroys the "heart" and most of the LRF, it is only the perimeter that is said to be preserved. The part of the LRF in Attunga Reserve is in good condition and that is the area council has grants for maintenance. However that area is still on the perimeter of the LRF. 36 There is no replacement or regeneration of the lost LRF possible, its micro-climate, soil, water supply, exposure and topographical requirements are so specialised one cannot just expand the LRF on Attunga, or, go out and plant a new LRF in the same way one can find new sites for and plant other forms of bushlandt. 37 In tacit recognition of this the applicant has offered to condition the endowment to allow council to spend offset funds on other LRF areas. Once again this belies the fact that the subject LRF is destroyed and there is a net loss to the existing reserves of endangered ecological community LRF in the region. 38 Whilst the applicant submitted that none of the experts had suggested a reduction of lot numbers to retain a substantial amount pf the LRF, I cannot presume that meant that the proposal is acceptable. The assessment process has been of the subject proposal, not an alternative. Nevertheless Dr Robertson did observe at one point that the minimum impact would be had if proposed lots 1, 2, 7 and 8 were to be developed. It seems to the respondent that comes closest to dealing with the natural constraints the topography, landslip potential and littoral rainforest impose on this property. 39 The letter in Exhibit 18 from the Dept of Environment and Climate Change does not favour an offset and sees the subject LRF as being in good condition. Conclusions 40 One matter that is a consideration, but not necessarily fatal to the appeal is the observation by objectors on site that car ownership locally is usually more than 2 per house if there are children of driving age. The plans appear to allow for 2 cars per house and no visitor parking. Photos in evidence show existing trailer boats parked in the Hill Side Road. If any of the potential 9 houses at the dead-end of the street have extra cars or trailer boats, where would they be parked? They would all end up on the street except perhaps for proposed Lot 1 and the currently vacant but level neighbour Lot 1 DP 1036400. This would add to the conjestion and reduce amenity of the locality as predicted by the objectors. The dead-end of Hillside Road has little capacity for parking as attested to by the residents from their own experiences. 41 The applicant said that under the Local Government Act 1993 s 48, the council does have de facto control of Attunga. Even if that is true I do not believe an offset arrangement is justified in this case for the reasons given above by the respondent. 42 The applicant put at one point that the council must have taken into account the potential impacts of development of the land when it was all zoned Residential 2(a) and therefore the destruction of the LRF and other impacts should be seen in that light. Throughout NSW there would be many such parcels where a broad zoning was applied in times past. But, for instance if the land has a river through it, or is flood prone, or has a cliff, those matters have to be taken into account when further subdivision or development is proposed. That often results in further subdivision being refused or large lots being required well above the minimum statutory area, or other remedial works being required on site. The minimum standards are not "as of right", they are only possible on land that has minor constraints. The more detailed knowledge of various constraints and environmental controls that have evolved over the years has enabled better management of development under the Environmental Planning and Assessment Act 1979. 43 Under that statute the council has prepared its local environmental plans and control plans. 44 The applicant contended that part B4.15 of Pittwater 21 DCP does not apply. However the respondent showed that Part A Table 2 applies Part C4. In C4 Subdivision Design requires that future buildings on any subdivision must be considered at the subdivision stage to assess whether the other controls of the DCP will be able to meet compliance. Particular attention is drawn to slope, topography, natural features, trees (particularly those worthy of retention), visual impact of built development as a result of the subdivision, vehicular access, on-site carparking, provision of emergency services including bushfire. 45 This brings into consideration inter alia part B4.15. The documents tendered including plans of driveways, houses, ancillary facilities and yards construction with related ares of site disturbance, rainforest clearing, bushfire hazard, protection zones etc have significant impacts. 46 The outcome of this subdivision is undoubtedly the loss of an important littoral rain forest endangered ecological community that would be contrary to B4.15. The Local Government Act 1993 s 48 may give de facto custody of Attunga to the council, but not any ownership. For the reasons given above, the offset proposal does not achieve the objectives of B4.15, and Sanctuary Investments V Baulkham Hills Shire Council [2006] NSWLEC733 is distinguishable on the grounds put forward by the respondent. 47 As the respondent observes, a lesser development may be able to achieve compliance with the applicable statutes and controls. Overall the facts and merits of this appeal reveal that the subject subdivision must be refused. 48 Therefore the Orders of the Court are: 1. The appeal is refused. 2. The exhibits are returned to the parties except Exhibits 1, 2, 5, 10, 11, 12, 19, 21 and B, C, D, E, F, Z, EE, GG, PP. ___________________ 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.