Land and Environment Court New South Wales Medium Neutral Citation: Elzerman v Eurobodalla Shire Council (No 2) [2011] NSWLEC 1085 Hearing dates: 25, 25 November 2010, 8 April 2011 Decision date: 13 April 2011 Jurisdiction: Class 1 Before: Pearson C Decision: Parties directed to provide a copy of the final conditions of consent by 15 April 2011 following orders will be made in chambers Catchwords: Development application - dwelling house - endangered ecological community - whether species impact statement required - restrictive covenant - amendment of application - s97B costs Legislation Cited: Environmental Planning and Assessment Act 1979 Planning Appeals Legislation Amendment Act 2010 Conveyancing Act 1919 Threatened Species Conservation Act 1995 Cases Cited: Elzerman v Eurobodalla Shire Council [2011] NSWLEC 1036 SJ Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 Groenveld v Wollongong City Council [2009] NSWLEC 149 Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 Nanevski Developments Pty Ltd v Rockdale City Council [2009] NSWLEC 1423 Globe Capital Properties Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1415 MacDonald v Mosman Municipal Council (1999) 105 LGERA 49 PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41 Hockitt Pastoral Co Pty Ltd v Great Lakes Council [2007] NSWLEC 514 Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70 Category: Principal judgment Parties: Kim Elzerman (Applicant) Eurobodalla Shire Council (Respondent) Representation: Counsel Mr M Fraser (Applicant) Solicitors Ms J Wauchope, Gadens (Applicant) Ms N Simmons, Sparke Helmore Lawyers (Respondent) File Number(s): 10284 of 2010 Judgment 1This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (the Act) from the refusal by the respondent Council of development consent for the erection of a dwelling house and ancillary structures on lot 81 DP706528, located on George Bass Drive between Moruya and Broulee (the site). 2The site is 133.94ha and consists principally of Bangalay Sand Forest, which is an endangered ecological community (EEC) under the Threatened Species Act 1995. The proposed dwelling is to be located approximately 438m west of George Bass Drive, with primary access on an existing vehicle track along the northern part of the site, and emergency egress along an existing track. The proposed dwelling is to be located within an asset protection zone (APZ) of 1.065ha, which is to have a 40m Inner Protection Area and a 10m Outer Protection Area. The 3The background to the application, and the evidence, are detailed in my judgment delivered on 14 February 2011: Elzerman v Eurobodalla Shire Council [2011] NSWLEC 1036. In that judgment I considered the two issues in dispute between the parties, being whether the proposed development is likely to have a significant impact on the EEC on the site, and whether access to the site is adequate. 4At paragraphs [36] and [37] of those reasons I concluded that the proposed development was likely to increase the impact of a key threatening process, and that there was uncertainty as to the extent of indirect impacts attributable to permanent occupation of the site. At paragraph [38] I considered the ameliorative measures proposed by the applicant, which were the Bushfire Preparedness and Environmental Management Plan dated 9 September 2010 (exhibit K) and proposed conditions (Exhibit N) which included requirements to be incorporated into the Bushfire Preparedness and Environmental Management Plan. At paragraph [40] I concluded: ....in the face of the limitations on the environmental assessment surveys, and the uncertainty as to potential indirect effects of permanent occupation of the site, I am unable to conclude that the likely effect of the proposed development is not likely to be significant. I accept the evidence of Ms Hayes, which is supported by DECC, that with appropriate ameliorative measures the uncertainty as to indirect impacts could be reduced so that it could be concluded that there is not likely to be a significant effect on threatened species, populations or the EEC. It is for the applicant to decide whether to prepare a SIS, or to amend the application to include additional ameliorative measures. Ameliorative measures cannot be imposed after determination of the development application in the form of conditions of consent: Speleogical Society at [83]. 5At paragraph [42] I noted that the Council's position was that if I were to conclude that a species impact statement is required or that the applicant should have the opportunity to negotiate a vegetation management plan with the Council and the Catchment Management Authority, the proceedings should be adjourned to allow that to take place. 6The proceedings were adjourned to allow the applicant to provide to the Council details of proposed amendments to the conditions and to the Bushfire Preparedness and Environmental Management Plan. The Council provided a response to those proposed amendments (exhibit 13). On the resumption of the hearing on 8 April 2011, the applicant sought leave to amend the application in accordance with the amendments specified in the Applicant's Revised Without Prejudice Conditions of Consent dated 30 March 2011 (exhibit P). The Council did not oppose the amendment of the application, and leave was granted. 7The amendments can be summarised as follows: 1. Amendments to the proposed conditions of consent (1) Condition 3 amended: Condition 3 as initially proposed listed environmental management actions to be inserted into the Bushfire Preparedness and Environmental Management Plan, and compliance with that plan. Condition 3 now reads: The development shall be carried out and maintained in accordance with the Bushfire Preparedness and Environmental Management Plan dated March 2011 prepared by Ecological Australia. (2) Conditions 3A and 3B inserted: 3A The applicant is to enter into a positive covenant pursuant to s88E Conveyancing Act 1919 with Eurobodalla Shire Council to the effect that the development is to be maintained in accordance with the Bushfire Preparedness and Environmental Management Plan, for the life of the development, unless otherwise varied, as set out in Annexure A to this consent . 3B The s88E instrument is to be registered on title prior to the issue of the occupation certificate. 2. Amendments to the Bushfire Preparedness and Environmental Management Plan (1) addition of new section 2.2.4 Environmental Management of Development with requirements for the construction phase and ongoing maintenance and use, and identifying specific requirements for the area within the APZ (Area A) and outside the APZ (Area B) (2) amendment of wording of previously proposed requirements to clarify those requirements or incorporate the Council's response to proposed 2.2.4 (3) inclusion of objectives at 2.1 (f) to manage the environmental impact of the construction of the dwelling (g) to manage the environmental impact of the occupati8on of the dwelling (4) amendments to Table 1: Summary of recommended tasks, actions, objectives and timing: -insertion of task "Manage impacts of construction and use of the dwelling" requiring action "Ensure strategies and actions outlined in section 2.2.4 are adhered to during and post construction", with detail of objectives, timing and priority -amendment of task "Maintain the existing vehicle tracks within the subject land" to "Maintain the main access and emergency egress tracks within the subject land" (5) addition to 3.1.1 Monitoring: Minimal indirect impacts on the area of land outside the APZ from residential occupation, through the restriction of activities as identified in section 2.2.4 Area B. 8The Council submits that the amendment is not a minor amendment and that an order for costs must be made under s97B(2) of the Act. The Council further submits that the application as amended does not overcome the uncertainty as to indirect impacts of permanent occupation of the site. Whether the amendment is a minor amendment: s97B 9The development application was lodged before the amendment to s97B of the Act made by the Planning Appeals Legislation Amendment Act 2010, and the applicable provision is as follows: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal. (3) The regulations may provide for circumstances in which subsection (2) does not apply. (4) This section has effect despite the provisions of any other Act or law. 10The Council submits that the amendment is not minor, on the following grounds. The amendment addresses an issue that was raised throughout the proceedings. The effect of the amendment is to change the nature of the physical activities which can occur on the land, and those activities have a significant role to play in the development and how it is assessed. The Council acknowledges that there is no change in concept, however that is not determinative. To the extent that it is relevant whether or not any reassessment of the application is required as a consequence of the amendment, the Council submits that reassessment has been required in the context of the significance of the issue. The intention of the amendment is to overcome the barrier to consent and it addresses the jurisdictional fact threshold issue, potentially moving the application to one for which consent could be granted. 11The applicant submits that the amendment is minor. The concept of the application is the same, and the plans for the dwelling house and ancillary structures are the same. No reassessment of the application by Council is required, and no further expert evidence is required. The applicant acknowledges that the amendment has a significant legal consequence, being potentially to enable a development that would otherwise be refused to be approved. The restriction of activities outside the areas of direct impact imposed by the amendment is insignificant apart from the legal significance, and nothing changes what the applicant proposes to do. There is separately power for the Court to award costs thrown away by the timing of the amendment. The intention of the applicant in making the amendment is not relevant, and the appropriate focus is on the development application, and the actual change being made. Findings 12The approach to be adopted to the determination of the question of whether the amendment made to the application is "a minor amendment" has most recently been considered by Biscoe J in SJ Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167, where his Honour referred to the decisions in Groenveld v Wollongong City Council [2009] NSWLEC 149 (Preston CJ), Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 (Pepper J), Nanevski Developments Pty Ltd v Rockdale City Council [2009] NSWLEC 1423 (Acting Registrar Gray), and Globe Capital Properties Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1415 (Tuor C and Dixon C). 13Those authorities confirm that consideration of whether the amendment is minor or not must be undertaken having regard to the context of the development and its location ( Groenveld at [29]), and that regard must be had to the cumulative or overall effect of the amendments in that context, and not simply the number of amendments ( Futurespace at [42]). The amendments to the application in this matter include amendments to the Bushfire Preparedness and Environmental Management Plan to incorporate matters previously addressed in conditions proposed by the applicant (which are not substantive changes), and the addition of matters identified by Council in the form of the Management Action Plan prepared by its expert ecologist, Ms Hayes (exhibit 12). The amendments to the proposed conditions include the addition of a requirement that the applicant register a s88E instrument. The plans for the proposed dwelling and ancillary structures, the main access and emergency egress tracks, and the proposed clearing for the APZ, have not changed as a consequence of the amendments. 14The amendments make concrete restrictions on activities associated with permanent occupation of the site identified by Ms Hayes as potentially giving rise to adverse impacts on the area of the site outside the APZ. While the applicant's position has been that some of those activities, such as location of additional ancillary structures outside the APZ, or collection of fallen timber, were never intended to be undertaken, the inclusion of the additional requirements in 2.2.4 of the Bushfire Preparedness and Environmental Management Plan is responsive to the issues raised by the Council. The amendments do not raise an entirely new issue, as the question of both direct and indirect impacts on the EEC has been an issue throughout the proceedings. The amendments have not required provision of further expert evidence. The concept of the proposed development has not changed. However, none of those factors are of themselves determinative: Futurespace at [9] (e), (f) and (h); Groenveld at [30], [31]; SJ Connelly at [16]; Globe Capital Properties at [50]. 15It was common ground between the parties that the determination of whether the amendment was minor or not should be made at the time the amendment is made, and not after consideration of whether the application as its stands after amendment is one for a development that is, or is not, likely to significantly affect threatened species, populations or ecological communities or their habitats. The most significant change made by the amendment is, in the context of the findings made in my earlier decision, to render the application potentially one for which consent could be granted. The potential legal consequence of the amendment is a factor in common with Globe Capital Properties , where the amendments appeared to avoid the need for objections under State Environmental Planning Policy No 1 - Development Standards and thus move the development from a prohibited development to a permissible development: Globe Capital Properties at [16], [17]. I note that the amendments in Globe Capital Properties included design changes that required further assessment by Council officers. I agree with the applicant's submission that every amendment is designed to make an application one which is more likely to be approved. However, the legal consequence of the amendment is only one factor in consideration of whether the amendment is minor. The substantive amendments to the Bushfire Preparedness and Environmental Management Plan add an entirely new series of measures relating to ongoing management after the construction phase of the area outside the APZ. The amendments have required further assessment by the Council, in responding to the substantive changes made to the Bushfire Preparedness and Environmental Management Plan, and in responding to the proposed conditions 3A and 3B which represent a departure from the security mechanisms recommended by Ms Hayes. Having regard to the overall effect of the amendments and applying the principles in the authorities noted above, I am not satisfied that the amendments constitute a minor amendment to the development application. 16The authorities relied on by both parties acknowledge that s97B in the form applicable in these proceedings has the potential to mandate a costs order disproportionate to any costs thrown away or additional costs incurred by the council as a consequence of the amendment, in circumstances where the amendment may produce a better community outcome or be responsive to the council's contentions: SJ Connelly at [5]; Futurespace at [46]. However, there is no discretion, and s97B requires that there be a costs order in the terms set out in s97B(2). 17The parties have reached agreement as to the quantum of costs to be ordered under s97B(2) which will be reflected in the final orders. I note their agreement that there shall be no other orders as to costs. Whether a species impact statement is required 18The applicant submits that the application as amended provides controls on activities outside the APZ, deals with key threatening processes, and addresses the uncertainty about indirect impacts of the development, leading to the conclusion that the proposed development does not have a significant impact and a species impact statement is not required. 19The Council submits that the amendments to the Bushfire Preparedness and Environmental Management Plan and the imposition of conditions 3A and 3B do not overcome the uncertainty as to indirect impacts of the proposed development on the site. The Council submits that there is still a lack of survey data, and no assessment of indirect impacts. There is a need for adaptive management in the form of additional requirements for monitoring and reporting, and the amendment of part 3.1.1 of the Bushfire Preparedness and Environmental Management Plan is not sufficient. A Property Vegetation Plan or one of the other mechanisms as proposed by the Council would require the provision of benchmark data. The Council submits that the amendments to the Bushfire Preparedness and Environmental Management Plan do not address the likely impacts of key threatening processes or overcome the uncertainty. 20In relation to the proposed s88E instrument, the Council submits that a restrictive covenant is required, and proposes condition 3A in the following form: 3A The Applicant is to enter into a Restrictive Covenant pursuant to s88E of the Conveyancing Act 1919 with Eurobodalla Shire Council which restricts the use of the building for residential purposes unless the occupants of the development comply with the bushfire and environmental management requirements under this consent and the Bushfire Preparedness and Environmental Management Plan dated March 2011. The covenant is to be registered on title and maintained for the life of the development the subject of this consent, unless otherwise varied. 21The Council submits that a restrictive covenant is required because of the sensitivity of the site, and because the Bushfire Preparedness and Environmental Management Plan restricts certain uses of the land. A restrictive covenant is also required because of the need to warn prospective purchasers and because it is consistent with the provisions of the Act, in particular s81A(1) and s76A. Findings 22The application now before the Court includes the amended Bushfire Preparedness and Environmental Management Plan, which includes at part 2.2.4 provisions applying in both the construction phase and for ongoing maintenance and use. Separate provision is made for ongoing maintenance and use for Area A (the house and the area inside the APZ) and Area B (all parts of the land outside the APZ). Hollow bearing trees in the APZ are to be retained, and protected during construction; no other hollow bearing trees outside the APZ are to be removed except with consent; and fixed light and noise sources from or associated with the dwelling are not to be directed at hollow bearing trees inside or outside the APZ. Provision is made for protection during construction of remnant vegetation to be retained, including temporary fencing to avoid encroachment during construction. During the ongoing maintenance and use phase restrictions are imposed on exotic perennial grasses in the APZ, and obligations to eradicate exotic weed and invasive plant species outside the APZ. The Plan prohibits in Area B clearing of vegetation for the purpose of creating new walking, bike or vehicle tracks for residential or residential recreational use, or for the purpose of ancillary building or structure, and collecting of fallen timber (other than as required to comply with the Bushfire Management Plan). There are restrictions on dogs, and a prohibition on keeping cats; and provisions requiring a feral animal eradication program where feral animals are living on the land. Part 2.2.5 of the Plan contains provisions for weed control. 23The applicant proposes to secure the measures intended to prevent or mitigate direct and indirect impacts of the proposed development both by condition 3, requiring compliance with the Bushfire Preparedness and Environmental Management Plan, and by the registration of a restrictive covenant under s88E of the Conveyancing Act 1919. The Court has been reluctant to impose conditions requiring registered restrictions as to user: see MacDonald v Mosman Municipal Council (1999) 105 LGERA 49 at [14]; PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41 at [40]; Hockitt Pastoral Co Pty Ltd v Great Lakes Council [2007] NSWLEC 514 at [34]. In Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70 Pearlman J held that there is power to impose a condition requiring a restrictive covenant, if the circumstances are appropriate. In these proceedings the condition as proposed by the applicant is intended to notify prospective purchasers of the obligation imposed by condition 3 to carry out and maintain the development in accordance with the Bushfire Preparedness and Environmental Management Plan. 24The development application, including the ameliorative measures contained in the amended Bushfire Preparedness and Environmental Management Plan and proposed conditions 3, 3A and 3B, must be considered taking into account the factors in s5A of the Act in order to determine whether the proposed development "is likely to significantly affect threatened species, populations or ecological communities or their habitats": s78A(8)(b) of the Act. In my earlier decision I set out my reasons for the findings relating to the direct disturbance attributable to the proposal, and for the remaining uncertainty as to the extent of indirect impacts attributable to permanent occupation of the site. The evidence provided at the hearing on behalf of the Council was that with appropriate ameliorative measures, including security of those measures, the uncertainty as to indirect impacts could be reduced so that it could be concluded that there is not likely to be a significant effect on threatened species, populations or the EEC. 25I am satisfied that the amendments made to the Bushfire Preparedness and Environmental Management Plan address the relevant key threatening processes included in Schedule 3 to the Threatened Species Conservation Act 1995 and identified as relevant for the site in Ms Hayes' evidence, being competition from feral animals, removal of dead wood and trees, invasion of certain plant species, loss of hollow bearing trees, and clearing of vegetation. The amendments specifically address activities, including recreational activities, identified in Ms Hayes' evidence as being likely to be associated with a permanent occupation of the land and which could impact on the vegetation or threatened species. The proposed conditions requiring compliance with the Bushfire Preparedness and Environmental Management Plan, and providing a mechanism for notification of the restrictions to prospective purchasers of the property, would commit the current, and any future, occupants of the site to compliance with those requirements. I am satisfied that the proposed development with the ameliorative measures proposed is not likely to significantly affect threatened species, populations or ecological communities or their habitats, and a species impact statement is not required. 26The Council's position as stated at the hearing on 8 April 2011 is that if I were to reach the conclusion that a species impact statement is not required, there are no remaining merits issues in contention other than matters to be addressed by conditions of consent. Conditions 27The Council presses for condition 3A to require the registration of a s88E instrument in the form set out at [20] above. The applicant proposes condition 3A in the form set out at [7] above. The parties agreed, relying on Fortunate Investments , that there is power to impose a condition requiring the registration of a covenant. As was the case in Fortunate Investments , such a condition would serve the function of notification to prospective purchasers of restrictions imposed on the use of the dwelling house and the land by the provisions of the Bushfire Preparedness and Environmental Management Plan. In the context of a site that is principally comprised of an EEC, where those restrictions are part of the ameliorative measures to minimise direct impacts and prevent or mitigate potential indirect impacts of the development, I am satisfied that a condition requiring registration of a covenant would relate to the matters referred to in s79C(1)(b) of the Act, and can properly be imposed under s80A(1)(a) of the Act. The condition would not attempt to limit the ability to obtain development consent in the future, as was the case in MacDonald and PDP , or duplicate the law providing for enforcement of the provisions of the Act: PDP at [40]. I am not persuaded that a restrictive covenant in the form proposed by the Council is required to achieve the notification function, or that it would be necessary to reinforce the Council's powers to compel compliance with the conditions: MacDonald . Condition 3A as proposed by the applicant should be imposed. 28The Council presses its proposed condition 3B requiring registration of the s88E instrument before the issue of a construction certificate. The applicant submits that it is not necessary at that stage, and that it should be required before the issue of an occupation certificate. In submissions the applicant foreshadowed the possibility of a s96 application to modify details of the proposed dwelling. It may be some time before the development proceeds to the point of issue of an occupation certificate, and I agree with the Council that it would be appropriate to have the positive covenant registered on title at the earlier stage. Condition 3B should be in the form proposed by the Council. 29The parties disagree as to proposed condition 8. The applicant proposes: 8 Commencement of construction A Construction Certificate is required for the buildings approved by this consent prior to commencement of construction. 30The Council proposes: 8 Commencement of Construction A Construction Certificate is required for the buildings approved by this consent prior to commencement of any clearing, construction or other associated activities. 31The Council submits that clearing is an inherent part of the proposed development. I agree with the applicant that the only clearing, including removal of trees, that could lawfully be undertaken at any stage of the preparation of the site for the erection of the proposed dwelling and ancillary structures would be that authorised by the development consent. Section 81A(2) of the Act requires that a Construction Certificate be issued before the erection of a building in accordance with a development consent commences. That would include any structure, including any temporary structure, erected on the site: s4. I am not persuaded that it is appropriate to require a construction certificate before commencement of clearing in accordance with the consent, and impose condition 8 in the form proposed by the applicant. 32In relation to condition 3, the parties agree to its imposition in the following form: 3 The development shall be carried out and maintained in accordance with the Bushfire Preparedness and Environmental Management Plan dated March 2011 prepared by Ecological Australia, as varied from time to time in accordance with that plan. 33The Bushfire Preparedness and Management Plan provides at 3.1.1 for monitoring by the owners at least annually, and at 3.1.2 for review on an annual basis by the owners and modification of the plan as necessary to achieve the plan objectives with the approval of the Council. In my view, a requirement for the owners to report to the Council the outcome of the annual monitoring would assist in implementing those provisions of the plan, as a form of adaptive management as submitted by the Council, and assist the Council in ensuring compliance. I am satisfied that such a condition could properly be imposed under s80A(1)(a) of the Act, rather than needing to be included in the ameliorative measures proposed by the applicant as part of the application. The parties have agreed on an appropriate wording of condition 3 to reflect the reporting obligation, but disagree as to whether the first report should be provided 12 months from the date of the issue of an occupation certificate, or from issue of a construction certificate. The monitoring requirements in 3.1.1 relate to both the construction phase and the ongoing management and use phase of the development, and I agree with the Council that the reporting requirement should commence 12 months from the date of the issue of a construction certificate. Conclusion 34I am satisfied, having regard to the evidence addressing the relevant matters arising under s79C of the Act and the contentions raised by the Council that the development application can be approved, subject to the conditions as agreed by the parties and in accordance with my determination in paragraphs [26]-[33] above. 35The parties are directed to provide a copy of the final conditions of consent by 15 April 2011, following which I will make the following orders in chambers: 1.The appeal is upheld. 2. Leave is granted to amend the application in accordance with the amendments specified in the Applicant's Revised Without Prejudice Conditions of Consent dated 30 March 2011 (exhibit P). 3. In accordance with s97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent $15,000 agreed costs being the costs incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal, within 60 days. 4. Development application 1172/2002 for the erection of a residential dwelling and associated shed, effluent disposal area, access and egress and clearing for an asset protection zone on Lot 81 DP706528, George Bass Drive Broulee is approved subject to conditions in Annexure A. 5. The exhibits may be returned except for exhibits A, B, C, H, P, 13 and 14. Linda Pearson Commissioner of the Court 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. Decision last updated: 01 June 2011