Elzerman v Eurobodalla Shire Council [2011] NSWLEC 1036

Land and Environment Court New South Wales

Medium Neutral Citation: Elzerman v Eurobodalla Shire Council [2011] NSWLEC 1036 Hearing dates: 25, 26 November 2010 Decision date: 14 February 2011 Jurisdiction: Class 1 Before: Pearson C Decision: The matter is listed for mention at 4pm on Wednesday 2 March 2011 Catchwords: DEVELOPMENT APPLICATION - Dwelling house - Endangered ecological community - whether species impact statement required - access Legislation Cited: Environmental Planning and Assessment Act 1979 Native Vegetation Act 2003 Threatened Species Conservation Act 1995 State Environmental Planning Policy No 14 Coastal Wetlands Eurobodalla Rural Local Environmental Plan 1987 Cases Cited: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121 Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 Category: Principal judgment Parties: Kim Elzerman (Applicant) Eurobodalla Shire Council (Respondent) Representation: Counsel: Mr M Fraser (Applicant) Solicitors: Ms J Wauchope, Gadens (Applicant) Mr P Marincowitz, Sparke Helmore (Respondent) File Number(s): 10284 of 2010

Judgment 1Commissioner : This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (the Act) from the refusal by the respondent Council of consent for the erection of a dwelling and ancillary structures on lot 81 DP706528 (the site). 2The site is located on the western side of George Bass Drive between Moruya and Broulee, 3.5km south of Broulee, and is 133.94ha. The site forms part of the coastal plain and is bordered on the southern side by vacant Council owned land. The land to the west is privately owned land occupied by a residence with access from Percy Davis Drive. The adjoining land to the north is privately owned land. 3The site consists principally of Bangalay Sand Forest, which is an endangered ecological community (EEC) under the Threatened Species Act 1995. A small wetland, which is subject to State Environmental Planning Policy No 14 Coastal Wetlands , extends into the western part of the site from the adjoining land. 4The proposed dwelling is to be located on the northern side of the site approximately 438m west of George Bass Drive. A steel clad shed of 70sqm is proposed within 10m of the dwelling. On site effluent disposal is proposed. Access to the dwelling is proposed along an existing track next to the fence line on the northern boundary of the property. A strip of land 3m wide between George Bass Drive and the boundary of the site is owned by the Council; the Council is proposing a condition of consent that a Right of Carriageway be obtained over that land before the issue of an Occupation Certificate. 5The issues between the parties are whether the proposed development is likely to have a significant impact on the EEC and threatened species on the site, and whether access to the site is adequate. 6The land is identified as being bushfire prone land for the purposes of s79BA of the Act. The proposal includes an asset protection zone (APZ) of 1.065ha, with a 40m Inner Protection Area (IPA) and a 10m Outer Protection Area (OPA). The applicant proposes to manage the IPA so that no tree or tree canopy occurs within 2m of the dwelling roofline, there is at least a 2m separation between tree canopies, and the IPA has no more than 15 percent tree canopy cover. By letter dated 4 November 2010 the NSW Rural Fire Service advised the Council that the proposal complies with acceptable solutions for a single dwelling in accordance with Planning for Bushfire Protection 2006. The letter notes that the acceptable solution for property access roads greater than 200m is that an alternate access is provided, and that in this development an alternate access has been provided. The Council did not press its contention that bushfire safety measures are inadequate.