Land and Environment Court of New South Wales CITATION : Neumann v Blue Mountains City Council [2007] NSWLEC 619 APPLICANT J A Neumann Pty Limited and ors PARTIES : RESPONDENT Blue Mountains City Council FILE NUMBER(S) : 11245 of 2006 CORAM: Brown C KEY ISSUES: Development Application :- demolition of an existing dwelling and the erection of a housing development for seniors or people with a disability - bushfire threat - streetscape - character - bulk/scale - access LEGISLATION CITED: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Seniors Living) 2004 DATES OF HEARING: 10, 11/09/07 DATE OF JUDGMENT: 12 September 2007 APPLICANT Mr J Atkin, barrister SOLICITORS McGrath Dicembre & Co LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsden Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 12 September 2007 11245 of 2006 J A Neumann Pty Limited and ors v Blue Mountains City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of DA XO5/0259 by Blue Mountains City Council (the council) for the demolition of an existing dwelling and the erection of a housing development for seniors or people with a disability at 94 Great Western Highway, Blaxland (the site). The site 2 The site is lot 1 in DP 790861. It has a frontage of 23.37 metres and depth of 53.63 metres and 65.63 metres, giving a total site area of 1,244 square metres. The site falls approximately 1 metre from front to rear. There are a number of trees on the site with the most significant being a liquidambar near the street frontage. 3 The existing development consists of a dwelling house, detached garage and garden shed. The proposal 4 The proposal provides for the demolition of the existing improvements and the erection of a housing development pursuant to State Environmental Planning Policy (Seniors Living) 2004 (SEPP SL). Two separate buildings are proposed, each with two units. The building closest to the Great Western Highway is two storeys and will contain 2 x 3 bedroom units. The rear building has 2 x 2 bedroom units in a single level configuration. Access is obtained directly from the Great Western Highway. Relevant planning controls 5 The site is currently zoned Living - General under Blue Mountains Local Environmental Plan 2005 (LEP 2005) although the proposed development is captured by the savings provisions in cl 6(4) having been lodged but not determined before the coming into effect of LEP 2005. Blue Mountains Local Environmental Plan No 4 (LEP 4) preceded LEP 2005 and cl 6(4) provides that the LEP 4 applies to the development although LEP 2005 should be considered as if the plan had been exhibited but not made. 6 SEPP SL is the principal planning instrument for the consideration of the development application. Clause 26 provides requirements for development on bushfire prone land and cl 29 requires consideration of the provisions of Seniors Living Policy, Urban Design Guidelines for Infill Development (the Guidelines) published by the Department of Infrastructure, Planning and Natural Resources in March 2004. Division 2 provides specific Design Principles and Division 4 provides requirements for self-contained dwellings. Schedule 3 provides specific requirements for development in the Blue Mountains. 7 The proposal is integrated development being development of bushfire prone land for a special protection purpose pursuant to s 100B of the Rural Fires Act 1979. The issues 8 The issues in the proceedings are: 1. whether the Asset Protection Zone (APZ) is adequate for the development considering the provisions of Planning for Bushfire Protection 2001 (PBP 2001) or Planning for Bushfire Protection 2006 (PBP 2006) . 2. whether there is an unacceptable impact on the streetscape and the landscape setting through the location of car parking in the front setback, the lack of deep soil landscaping to provide canopy trees at mid-block and at the rear, and the bulk and scale of the uncharacteristic roof form. 3. whether adequate access is provided in times of flooding and in general. The evidence 9 Evidence on the bushfire issue was provided by Mr Barry Eadie for the applicant and Mr John Delaney from the Rural Fire Service for the council. Mr Robert McGuiness provided evidence on the planning issues for the applicant and Mr William Langevad for the council. Mr Mark Relf provided evidence for the applicant on the access issues. Fire safety 10 Mr Delaney and Mr Eadie agreed on a number of matters. There was no dispute that the site was designated "bushfire buffer" on the Bushfire Prone Land Map certified by the Commissioner of the Rural Fire Service in October 2004. A bushfire buffer area typically suffers the impacts of bushfires from adjacent vegetated areas. As such, it is subject to an application for a bushfire safety authority under s 100B of the Rural Fires Act 1979. The Rural Fire Service has declined to issue the authority. 11 Cl 26(1) of SEPP SL provides that a consent authority must not consent to a development on land identified as bushfire buffer unless the development complies with the requirements of PBP 2001. There was some disagreement by the parties on the status of this document as it had been effectively replaced by PBP 2006. While the reference to PBP 2001 remained in cl 26(1), references to this document have been replaced in other legislation. Mr Delaney and Mr Eadie prepared their evidence on PBP 2006 although reference was made in their oral evidence to PBP 2001. 12 I am satisfied that the primary approach to the bushfire assessment should be through the requirements in PBP 2006 as it represents the most recent approach to bushfire assessment and management notwithstanding the reference to PBP 2001 in cl 26(1). Importantly, it was the basis for consideration and assessment by both Mr Delaney and Mr Eadie. 13 PBP 2006 provides aims and objectives, specific objectives for development types and performance criteria for various bushfire protection measures. The proposed use is defined as a "special fire protection purpose" as it involves individuals that may be more vulnerable to bushfire attack. Other uses that fall within the same definition are schools, hospitals and childcare centres. 14 The performance criteria in PBP 2006 can be satisfied in one of two ways. Firstly, the use of an acceptable solution or, secondly by demonstrating another solution that satisfies the specific objectives and performance criteria. In this case, the applicant has chosen the latter course, as the acceptable solution requires an asset protection zone of 100 metres based on the table in A2.5 in Appendix 2. Even though Mr Delaney said that this could be reduced to 82 m based on the particular characteristics of the nearby land, the proposal would still not satisfy this reduced APZ. 15 Clause 4.2.7 of PBP 2006 provides a performance criterion of radiant heat levels of no greater than 10 kilowatts per square metre (kW/sq m) that would be experienced by occupants or emergency services workers entering or exiting a building. The intent of the performance criteria would be satisfied if the radiant heat level were below 10 kW/sq m at the proposed building. 16 Mr Delaney and Mr Eadie agreed that the maximum attainable APZ was 70 m from the proposed dwelling. This area included three residential properties to the north of the site but stopped at the property at 102 Great Western Highway because of its heavily treed and undeveloped nature, although the 70 m APZ did include a small area within this property as it had been disturbed by the construction of a drainage line. 17 For the purposes of calculating the radiant heat levels, Mr Delaney and Mr Eadie agreed on the flame height of 32 m and the flame front of 100 m, but disagreed on the appropriate flame temperature and the reduction in radiant heat through shielding by existing buildings and vegetation. 18 Based on their own assumptions, Mr Delaney calculates the radiant heat level at the proposed buildings at 15.8 kW/sq m and Mr Eadie at 9.7 kW/sq m. For flame temperature, Mr Delaney adopted 1,200 degrees Kelvin (K) whereas Mr Eadie adopted 1,090 K. 19 Mr Delaney explained that the flame temperature of 1,200 K was used in the determination of the minimum APZ in Table A2.6 of PBP 2006. This table relates specifically to special fire protection purposes and the protection of individuals rather than the protection of buildings. In his opinion, a higher flame temperature provides the necessary cautious approach compared to Tables A2.4 and A2.5 that specifically address the protection of buildings and use a lower flame temperature. 20 Mr Eadie relies on Table A3.1 in Appendix 3 that has a note under the table that states "assess flame temperature of 1,090 K for all scenarios." 21 On the matter of flame temperature, I accept the evidence of Mr Delaney. While there was originally some confusion over the use of 1,200 K when compared to the note to Table A3.1, the explanation of Mr Delaney is consistent with the consistent approach adopted by PBP 2006 where additional caution is required for special fire protection purposes. Also I am not convinced that any significant reliance can be placed on Table A3.1 in the determination of an appropriate APZ for the site. The introduction to Appendix 3 states that the words that are italicised, "are commentary and do not form part of the requirements for site assessment or the provision of a deem to satisfy solution under the BCA." Table A3.1 and the note are italicised. I also accept Mr Delaney's explanation that Table A3.1 is simply a means of identifying the likely effects of different levels of radiant heat rather than a component of the calculation of radiant heat levels. I also note that Mr Eadie accepted that 1,200 K was within the range of reasonable flame temperatures. 22 Mr Delaney and Mr Eadie saw the issue of shielding by existing buildings and vegetation as a valid consideration in assessing the radiant heat levels. However, they disagreed on the extent of the reduction. Mr Delaney described the shielding by the existing dwelling at 100 Great Western Highway as minor and not significant enough to challenge his calculations on radiant heat levels. He rejected the use of existing vegetation as providing any shielding. 23 Mr Eadie disagreed and maintained that the dwelling at 100 Great Western Highway would reduce the radiant heat levels by 25% but only over approximately 25% of the 100 m flame front. He also maintained that existing vegetation would provide some shielding although I did not understand the potential shielding to have any meaningful effect on radiant heat levels. 24 Appendix 3 (at p 61) states that a building elevation is exposed to radiant heat if there is a direct line of sight from any part of that elevation to the source of the bushfire attack (excluding fencing and other minor obstructions). The evidence on the relative levels of the development on the site and the dwelling at 100 Great Western Highway (as shown in Exhibit C) indicate that this dwelling would shield the proposed buildings at the lower levels of the source of the bushfire attack. However, the height of the flame would be clearly visible above the roof from the proposed buildings. 25 Overall I agree with Mr Delaney that the potential shielding is relatively inconsequential in the overall area of the flame front. I also accept that existing vegetation would provide little, if any, shielding. The consequence is that the radiant heat level at the proposed building would be around 15.8 kW/sq m. This is well in excess of the 10 kW/sq m performance criteria in cl 4.2.7 of PBP 2006. 26 Assuming that a reference to PBP 2001 in cl 26(1) of SEPP SL is a reference to PBP 2006, I find that the proposed development does not comply with the requirements in relation to an appropriate APZ and as such development consent must be refused and the appeal dismissed. 27 If I am incorrect in relying on PBP 2006 then the provisions of PBP 2001 would offer little support to the applicant's case. PBP 2001 provides less flexibility in the determination of an APZ and compliance would require an APZ of a minimum depth of 100 m. Again, the application would fail if considered under PBP 2001. 28 For completeness I will briefly deal with the other issues. Streetscape/ character/ bulk 29 The streetscape issue centred largely on the location of two car parking spaces within the front setback area. Mr Langevad maintained that this had an unacceptable impact on the streetscape and Mr McGuiness stated that the spaces could be adequately screened by landscaping to an acceptable level on the streetscape. 30 With the benefit of a site view I agree with Mr Langevad's conclusions. Clause 31 addresses neighbourhood amenity and streetscape. I do not accept that the proposal recognises "the desirable elements of the location's current character" that generally provides for large landscaped setbacks. The fact that it the site is located on a major road is not a valid reason why the issue of streetscape should be given less attention in the overall design. 31 The provision of canopy trees at mid-block and at the rear of the site, in my view, is not a matter that would warrant the refusal of the application. While areas are limited at the rear and mid-block, I am satisfied that some landscaping could be provided in this location to contribute to the treed character of the area. Even though the site satisfies the minimum site area requirements in SEPP SL, it is still relatively small. I am also mindful of the significant contribution that the retention of the existing liquidambar makes to the character of the area at the property frontage. 32 I agree with Mr Langevad on the bulk and scale of the front building when viewed from the Great Western Highway. Much of this bulk and scale comes from the first floor level and the roof design. I am however satisfied that a two storey design could be appropriate in this location taking into consideration the range of building forms in the immediate area that includes two storey developments, some of which are located at the front building line. Accessibility 33 The issue of accessibility was addressed by Mr Relf, who maintained that access in times of flooding was acceptable taking into account the frequency of a 1:100 year storm event, the maximum ponding of 50 mm for a five minute duration, and the knowledge of occupants who would likely avoid any deeper ponding on the driveway. I accept his conclusions on this issue. 34 I also accept his evidence that the dual use of the driveways by car and potentially wheelchairs is acceptable, even though it is inconsistent with the Guidelines because of the small traffic generation from four units and the limited number of conflict points along the driveway. 35 For the reasons mentioned previously, the Orders of the Court are: 1. The appeal is dismissed. 2. DA XO5/0259 for the demolition of an existing dwelling and the erection of a housing development for seniors or people with a disability at 94 Great Western Highway, Blaxland, is refused. 3. The exhibits are returned. ___________________ G T Brown 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.