Land and Environment Court New South Wales Medium Neutral Citation: Vigor Master Pty Limited v Warringah Council [2011] NSWLEC 1096 Hearing dates: 3 and 4 March 2011 Decision date: 07 March 2011 Before: Moore SC Decision: 1.The appeal is upheld 2.Development Application2010/0478 to subdivide Lot 8 DP 1035344 into two allotments is determined by the granting of development consent subject to the conditions in Annexure A; and 3.The exhibits, other than Exhibits A, C and 4, are returned. Catchwords: Subdivision; consistency with Locality statement in Warringah Local Environmental Plan 2000; role of draft Warringah Local Environmental Plan 2009; amber light approach to consideration of development appeals; modified subdivision. Legislation Cited: Warringah Local Environmental Plan 2000 Draft Warringah Local Environmental Plan 2009 Cases Cited: Dem Gillespies v Warringah Council [2002] NSWLEC 224; (2002) 124 LGERA 147 Newbury District Council and Secretary of State for the Environment [1981] AC 578 Category: Principal judgment Parties: Vigor Master Pty Limited (Applicant) Warringah Council (Respondent) Representation: Mr J Johnson (Applicant) Mr A Hudson (Respondent) Wilshire Webb Staunton Beattie File Number(s): 10524 of 2010 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1The upper end of the Brookvale Valley is bounded by Warringah Road. Below Warringah Road, running down into the valley, is Greendale Creek. Although a portion of its catchment is to the north of (and some of it under) Warringah Road, below Warringah Road the creek passes through a substantial undisturbed and undeveloped bushland area. 2This area comprises, for the most part, one very large allotment of land having an area of approximately 98,000 square metres. On the map that attaches to the Warringah Local Environmental Plan 2000 (the 2000 LEP), this land is identified as being in the Brookvale Valley Locality, known as Locality F4 in the 2000 LEP and is marked, for the most part, with hatching to identify an area that is not, prima facie, intended for development. An extract from the zoning map appears below: 3The 2000 LEP is an unusual Local Environmental Plan in that, contrary to conventional zoning regimes, it includes a series of Localities with desired future character statements. It has long been held that, for the purposes of assessing development in proceedings in this Court, the desired future character statement, in the broad, is akin to a statement of objectives for a particular zone and, again in the broad, the permitted uses within a particular locality are to be regarded akin to the land use table in a conventional local environmental plan (see Dem Gillespies v Warringah Council [2002] NSWLEC 224; (2002) 124 LGERA 147). 4As part of the adoption by all local government areas in the New South Wales of templates based on the Standard Instrument, the council has prepared the Warringah Local Environmental Plan 2009 (the 2009 LEP) that will zone the particular parcel as Zone E2. It is agreed between the parties that the 2009 LEP is imminent and certain. 5Of the land that is incorporated in the hatched area within the F4 Locality is most of the site except for an area of some 4,200 square metres in the north-eastern corner - this is not hatched and is clearly identified for the purposes of permissible future development. It is clear, on a reading of the 2000 LEP, that there are a number of uses in the three categories of development specified as the structure of the land uses in the 2000 LEP that are permitted on the unhatched area of the land that is the subject of this application. I will return to what the meaning of the categories might be shortly. 6The site is known as Lot 8, Warringah Road, Beacon Hill and it has a frontage of approximately 120 metres to Warringah Road and a frontage, along its north-eastern side, of nearly 90 metres to Northcliffe Avenue. 7The area of the site that is the subject of this application comprises the unhatched area in the north-eastern corner together with a further area of nearly 7,000 sq m comprising an annulus around that 4,200 or so sq m that is unhatched. 8As part of the original development application that was lodged with the Warringah Shire Council (the council), the applicant provided a flora and fauna impact assessment for the then form of subdivision proposed which foreshadowed a number of other allotments. The other allotments are not a matter of concern to me in these proceedings. That impact assessment includes a plan that shows the vegetation patterns for that area (although in stylistic form for the boundary of the unhatched area - making it much more regular than is, in fact): 9It shows, in brown, the weedy areas that have been subject to an edge effect impact. They are along the portion of Warringah Road to which the frontage of the proposed Lot 1 in this subdivision would be adjacent and down in Northcliffe Avenue for the full length of the proposed Lot 1 and then by inference around the turning head of Northcliffe Avenue. The green areas shown on the vegetation plan are undisturbed ridge top woodland and, in pink, undisturbed gully forest extending into the green. 10During the course of the site inspection, I had the opportunity to hear evidence informally from a number of residents, all of who objected to the development. For reasons that will be obvious from the terms of this decision, it is unnecessary to set out those objections in detail. 11In essence, however, the council's objections to the proposal boil down to a primary objection of the development being contrary to the desired further character and thus not capable of being given consent after a proper consideration of the 2000 LEP and after giving proper consideration to the terms of the draft 2009 LEP, the presumption of an inappropriate development under the 2000 LEP is not cured. 12It was also clear to me during the course of the hearing that the subdivision that is proposed is not the only option that is available to the applicant in these proceedings and that is consistent with the approach taken by the Court in recent years of seeking the best community outcome. 13It was also appropriate for me to consider whether what I have described in a number of judgments as the amber light approach, that is after asking myself the question, "Is the proposal as put to the Court capable of approval?" If the answer to that is no, I then proceed to ask myself the question, "Is the proposal capable of approval in some modified form, consistent with the original application? That is, does it get the amber light? And if so, what can be done to require those modifications?" If the amber light is satisfied, as in traffic lights, amber can change to green. If it is not possible to find an approvable development, then the answer must be the red light and the appeal refused. 14In these proceedings, it was clear to me (as I put to both the planning and bush fire witnesses) that there was a potential amber light outcome and that would be an outcome that has a subdivision that is proximate but not entirely equal to the unhatched area - it being the agreed evidence of both the bush fire experts and the planning experts that a subdivision that followed the slightly less than serendipitous boundary presently proposed on the southern face of the subdivision could be replaced with an equally but slightly curved serendipitous boundary that followed the 95 m contour on the survey plan of the site. 15Having set out that background to the matters that require to be considered dealing with the principal aspects of the proposed subdivision, and noting that there are proposed conditions of subdivision to which I will return, I proceed to deal with the matter on the basis agreed between the parties, as I understood it, that if I were not to approve the subdivision as proposed, the applicant should achieve an outcome from these proceedings that granted a subdivision based on a southern boundary along the 95 m contour with the western boundary as presently marked on the map. 16There is as a consequence, no doubt that the appeal will be upheld. The question that arises is what should be the terms upon which it is upheld and upon what conditions (that also being a matter to which I need to turn my attention). 17The starting point, therefore, in my view, is the relevant element of the Brookvale Valley Locality desired future character statement. The second sentence of the opening paragraph of that is in the following terms: In order to protect the bushland and scenic quality of the Valley and to maintain the water quality of Greendale Creek, the head of the Brookvale Valley, as shown cross-hatched on the map, will remain as undeveloped bushland except for the land at Lot 7 DP 236335 where a maximum of one dwelling may be erected provided the design and construction of that development has regard to the topography, potential slip and sensitive visual character of the land as well as potential loss of views to adjoining or nearby properties. 18The permitted development that is allowed within the Brookvale Valley Locality falls into three categories. Relevantly, for the purposes of these proceedings, the sole item of development within Category 1 is housing, that being a matter that is relevant to my consideration of matters contained in cl 12(3) of the 2000 LEP, whilst development for the purposes of bush fire hazard reduction, it seems to me, also falls within the permitted development and is, at least from those land use table elements, uncategorised. 19However, subdivision in itself is also categorised, by virtue of cl 14(2), as being Category 2 development. For the purposes of cl 12(3), for Category 3 development or Category 2 development (Category 2 being the subdivision element), I must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement (but noting that nothing in a description on desired future character creates a prohibition on the carrying out of development). 20The relevant desired future character statement refers to a wish to have significant portions of the valley shown in the crosshatched area remaining as undeveloped bushland. Although there were submissions made to me by Mr Johnson, valiantly in my view - but unsuccessfully, that "undeveloped" did not mean not having any of the developments that have been permitted in Categories 1, 2 and 3. I reject that submission. 21I am satisfied that, in the context of that critical sentence describing the desired future character, "undeveloped" means not having development or being without development. Therefore, the desired future character for the crosshatched area, with the exception of Lot 7, as earlier noted, is to have that area retained as undeveloped bushland. 22As a consequence, I am satisfied it is inevitable that development of any nature on the bushland hatched area, apart from that which is expressly permitted on Lot 7, is inconsistent with the desired future character set out in the relevant Locality Statement. 23While it may be appropriate for bush fire hazard reduction or the creation of asset protection zones to take place within the hatched area for the purposes of protecting existing development, for example, if it were to be necessary (a matter not observed during the course of the site inspection so merely noted as a theoretical possibility) to protect houses at the turning head of Northcliffe Avenue, by having hazard reduction works on the hatched area land, if it were necessary and permitted by the owners of that land or otherwise required under the Rural Fires Act , then that would not be inconsistent with the desired future character statement. 24However, I am satisfied that creating the proposed Lot 1, as it is now proposed, with some over 6,500 sq m within the hatched area, is inappropriate because it will create an expectation in the eyes of an owner that there might be future development of that area and that future development of that area for an asset protection zone would be inconsistent with the desired future character statement. 25However, that is not necessarily the end of the matter. Because of the imminence and certainty of the 2009 LEP, it is necessary for me to consider the terms of the permitted range of activities under that document; the zone objectives for the E2 zone; and whether anything that arises out of the imminence and certainty (and, therefore, the significant weight to be given to the 2009 LEP), outweighs anything that might stand in the path of the subdivision as proposed under the 2000 LEP. 26Critical to this is the fact that, in the E2 zone, the only works that are permitted with consent are environmental protection works and roads. As a consequence of a definitional trail, which is it is not necessary to set out in full, environmental protection works encompass a range of bush fire mitigation works. It is therefore necessary to set out in a little more detail than I did earlier, with respect to the F4 Locality Statement, the various agreements of the experts. 27The first is that the bush fire experts agreed - that is Mr Rose (for the council) and Mr Swain (for the applicant), that, if the boundary were to follow the 95 m contour, there would be sufficient area on the resultant allotment for a dwelling to be erected with its asset protection zone entirely within that allotment. They noted, however, that if it were appropriate to create a larger allotment, there would perhaps be a potential future for a greater scope of development on that allotment than would be the case if it were confined to the unhatched area. 28The planners' joint report also makes it clear that the area and configuration of the proposed Lot 1 accords with Mr Swain's estimation of the required APZ for a sixlot development on the unhatched land. They then noted, inter alia, it would also be possible to develop the unhatched land in proposed Lot 1 in accordance with the density provisions of minimum dimensions set out in the 2000 LEP for housing and that the proposed subdivision should realistically be viewed as a precursor of future residential development upon the unhatched land. 29I therefore turn to the question of whether incorporating part of what is now the hatched land (but is to be zoned E2) with the area that is presently unhatched (and is to be zoned for residential purposes) is consistent with the objectives of the zone for the E2 zone under the draft 2009 LEP. 30The first of the two objectives of the zone are: to protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values; and to prevent development that could destroy, damage or otherwise have an adverse effect on those values. 31The vegetation plan to which I earlier adverted shows the areas of degradation that are in the north-eastern corner of the site. A very small portion of these is contained in the currently hatched and to be E2 zoned area. It is proposed, as I was informed, that the proposed residual area to be known as Lot 2 would be used for the purposes of the biobanking. It is reasonable to infer that that would involve at least some remediation works and it was also the uncontradicted evidence of residents that they undertook bush regeneration works in those areas. 32I am satisfied that creating a possible expectation of future use of part of the E2 zone area for new asset protection zones to protect new assets is contrary to the first and second objectives of the zone. Whilst it might be elsewhere in the Shire (or, possibly relevantly, at the head of Northcliffe Avenue) consistent with those objectives for the purposes of protecting existing assets that does not, in my view, provide any appropriate reason to create an additional expectation given those first and second objectives for the zone. 33It also therefore necessarily follows that I cannot be satisfied that any provision in the draft 2009 LEP should outweigh and overcome the conclusions that I had drawn under the 2000 LEP, that the only subdivision that it is appropriate to permit is one which conforms in general terms to the area that is in the unhatched area but consistent with the evidence of the planners and the bush fire experts as to manageability and the like. It is appropriate to require that that allotment boundary follow the 95 m contour, a position that is reproduced below (with my marking of this contour): 34The consequence of all of that is that the appeal will be upheld subject to conditions but only to the extent of the smaller allotment that virtually entirely but not absolutely entirely constitutes the area that is currently unhatched on the 2000 LEP map. 35I make the following observation with respect to the conditions of consent (because I propose to require settled conditions of consent to be filed reflecting this decision before a consent is granted by orders to give effect to this decision). 36The first is that it is not appropriate purely for a subdivision application to include sweeping and wide-ranging conditions of consent. There are no works proposed pursuant to the subdivision and there are no matters that will require detailed conditions of consent. 37If biobanking does not require a development application to the council and is capable of being given effect without that, it may be appropriate for the parties to contemplate (and if an agreed position were reached), I would be prepared to make orders incorporating an agreement that deals with a weeding regime for the edge effects that are shown on the plan as being on proposed Lot 2, along Northcliffe Avenue. I have no evidence as to what might be the edge effects anywhere else on the site and it would be inappropriate absent such evidence, in my view, for there to be a general bushland rehabilitation requirement imposed on the applicant as I have no evidentiary basis upon which I could do so. 38I am satisfied that the creation of such a requirement for the areas along Northcliffe Avenue, shown in brown on the vegetation plan earlier reproduced, satisfies the relevant tests known as the Newbury tests (see Newbury District Council v Secretary of State for the Environment [1981] AC 578) for being imposed out of this decision but that to go beyond that would be unreasonable. Given that there is a development expectation for development on Lot 1 in some form, bushland regeneration requirements for proposed Lot 1 should, in my view, appropriately await the outcome of the determination of any development application for development on proposed Lot 1, as it would be reasonable to expect that such development application would be attended by a condition of that nature. 39Having made that observation, it would seem to me that there would be very little appropriate requirement for any conditions that went beyond that as, at least as I understand it, the question of the regulation of biobanking activities is something that is dealt with under a statutory regime, about which I have little information and into which I am not asked to venture. 40Therefore to give effect to the matters that I have determined, I give the following directions: (1)The applicant is to file and serve a revised plan of subdivision showing the southern boundary of proposed Lot 1 as following the 95 m contour; (2)The plan is to be for the full site and not merely confined to the north eastern area; (3)The plan is to be in A1 size and it is be filed and served by the close of business on 14 March. (4)The respondent is to file and serve revised settled conditions of consent, electronically by email, marked to my attention and by hand in hard copy by the close of business on 14 March; (5)The matter is listed for mention before me at 4.20pm on Wednesday 16 March 2011; (6)The parties have liberty to re-list on two days notice if there is any dispute about the conditions of consent; (7)If directions (1) to (4) are satisfied, I will make orders in chambers and vacate the mention on 16 March; and (8)If the applicant does not provide the revised plan of subdivision in accordance with direction (1), and does not exercise the liberty to re-list on two days notice, prior to the time for expiry of direction (3) - that is the close of business this coming Friday, the appeal will be dismissed without further recourse to the parties. 41The exhibits, other than Exhibits A, C and 4 are returned. Tim Moore Senior Commissioner 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: 02 May 2011