Land and Environment Court New South Wales Medium Neutral Citation: Ensile Pty Ltd v Wollongong City Council [2014] NSWLEC 1264 Hearing dates: 22 December 2014 Decision date: 22 December 2014 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld Catchwords: CONSENT ORDERS; subdivision; environmentally sensitive land Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Conveyancing Act 1919 Wollongong Local Environmental Plan 2009 Category: Principal judgment Parties: Ensile Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Applicant: Mr T Robertson SC (Barrister) Respondent: Mr J Reilly (Solicitor) Applicant: Burrell Solicitors Respondent: Wollongong City Council File Number(s): 10295 of 2014 Judgment 1COMMISSIONER: The applicant appeals Wollongong City Council's refusal of Development Application DA-2012-121480 for the consolidation of 123 allotments and re-subdivision into 8 lots with associated subdivision works including road works, and provision of utility services and drainage. 2The appeal is made under s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3The matter commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act). The conciliation was adjourned and during that time the parties resolved the matter and now ask the Court to grant consent orders upholding the appeal. Pursuant to s 34(4)(b), the conciliation conference was terminated and the matter proceeded to a hearing. 4The applicant was granted leave to rely on amended plans. As the amendments are more than minor, in accordance with s 97B(2) of the EPA Act, the Court ordered the applicant to pay the council's costs in the agreed sum of $5,500.00 within 28 days. 5The amended plans reduce the number of allotments to be consolidated by 19. The proposal now seeks seven new allotments, four dwelling sites, modifications to the access roads and the provision of drainage and utility services. The site and its locality 6The site comprises three separate properties: Otford Valley Farm, Lilyvale Road, Lilyvale (the majority of lots); Lot 7 Private Road [paper subdivision road], Helensburgh (part of one lot); and 53 Lady Carrington Drive, Otford (one lot). The combined area is approximately 338 hectares. 7Most of the site is heavily forested and contains a range of key habitats and vegetation communities. The topography is undulating and dissected. There are some cleared areas in the eastern portion of the site in the vicinity of Otford Valley Farm and on the western portion to the east of Helensburgh. The farm is currently occupied by an equestrian centre and two dwellings. Some of the lots are used for cattle grazing. 8Council's records list the site as being affected by instability, flooding, and bushfire. The site contains Aboriginal heritage items, riparian zones, endangered ecological communities and threatened species, has natural resource sensitivity and provides key fish habitat. 9The site is located between the western edge of the Helensburgh township and the Illawarra railways line to the east. The Royal National Park and Garrawarra State Recreation Area are located to the north and east. The site is located in the Hacking River Catchment area. 10The site surrounds a parcel of land identified on the plans as 'Thompson land' which is excluded from the proposal; it too is also heavily vegetated. The proposal 11The amended plans show 7 lots. Lots 1 and 2 are to the southeast; no building envelope is sought on either of these lots. 12Lots 3 and 4 traverse the site from east to west to the north of the Thompson land. Building envelopes are shown on the western extremity of these lots on cleared land close to the eastern edge of Helensburgh on a number of small allotments created as part of a paper subdivision extension of Helensburgh. 13Lot 5 is on the western side of the Thompson land. The building envelope is on partly cleared land near the eastern edge of Helensburgh. 14Lot 6 is an irregularly shaped lot on the south-western/ southern portion of the site. The building envelope is on the north-western corner of that lot. 15Lot 7 is best described as a residual lot of about 90 ha, mostly to the north of Lilyvale Road. There is one 2.12 ha portion on the north-eastern part of the site to the south of Lilyvale Road. Part of Lot 7 is an isolated pocket of 6.38 ha to the north and adjoining the Illawarra railway. No building envelope is proposed on this lot. 16The four proposed building envelopes are located on the western and most disturbed portion of the site, close to existing infrastructure. The plan shows a continuous 25m wide asset protection zone to be created around the four building envelopes. 17The civil works plan shows the extension and sealing of Lilyvale Road; the road is to be kerbed and guttered. A standard residential cul-de-sac is to be constructed to council's standards. An easement for a gross pollutant trap and bio-retention area is to be created off the cul-de sac. 18A private road and right of way (ROW) is to be constructed off the cul-de sac to provide access to the four lots on which building envelopes are located. The first 10 metres will be sealed and the remainder of the ROW is to be gravel in keeping with the rural character of the area. Stormwater works include swales and stabilised outlets with spreaders are proposed. The assessment framework 19The site is zoned E3 Environmental Management in Wollongong Local Environmental Plan 2009 (WLEP). The objectives of the E3 zone are: * To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values. * To provide for a limited range of development that does not have an adverse effect on those values. 20Clause 2.6 WLEP permits subdivision with development consent. Clause 4.1 requires a minimum lot size of 40 ha in the E3 zone. 21As the site is mapped as being of Natural Resources Sensitivity - Biodiversity, cl. 7.2 WLEP requires the consent authority to consider the impact of the development on the environmental and ecological value of the land. 22According to the applicant's Statement of Environmental Effects, Draft Wollongong Local Environmental Plan 2009 seeks to amend WLEP 2009 and includes a review of lands formally zoned 7(d) at Helensburgh, Otford and Stanwell Tops and is relevant to the site and the proposal. The draft plan proposes to rezone the land E2 - Environmental Conservation. (New) dwelling houses would not be permitted in this zone. The rezoning is yet to be gazetted. 23Council's amended Statement of Facts and Contentions lists the relevant parts of Wollongong Development Control Plan 2009 (WDCP) that apply to the site. Objectors' evidence 24The amended plans were notified to objectors who had made submissions in regards to the original proposal. In accordance with clause 36 of the Court's Practice Note - Class 1 Development Appeals, the objectors were notified of the content of the proposed orders and the date of the hearing. Two residents gave oral evidence and a number of written submissions were tendered as exhibit 1. 25Mr Ian Hill considers that the majority of the site was proposed by council to be zoned E2 Environmental Conservation (see [22]). Because of the significance of the site as a wildlife corridor, the proposed zoning is supported by many residents and local environmental groups. Mr Hill maintains that the matter was referred to the Joint Regional Planning Panel who supported the rezoning of the bulk of the site to E2 with some development allowed on some parts. 26In Mr Hill's view, the proposed location of the building envelopes and the development that will eventually ensue will reduce what he describes as the 'wet wildlife corridor' by 25%. In addition, the development occupies the flatter section of the site, an area much easier for wildlife to traverse. He maintains that the erection of fences and the introduction of domestic animals will also place wildlife at risk. 27Mr Hill is also concerned that development will lead to soil compaction which will increase run-off and potential soil erosion. He says this, as well as the installation of on-site sewerage systems, could compromise the Hacking River catchment. 28Ms Jenny Sherratt also gave oral evidence in support of her written submission. In her view there should be no development of the site but rather the site should be revegetated and incorporated into the National Park reserve system so as to reduce the impact of siltation and erosion on the Hacking Catchment. 29Ms Sherratt reiterated Mr Hill's views on the zoning and the significance of the wildlife corridor. Ms Sherratt also raised concerns over the potential impacts arising from bushfire, in particular the additional clearing that may take place given the government's 10:50 rule, the characteristics of the soils and potential structural problems for future dwellings, and possible financial claims against council in the event of development on flood prone land. 30Other written submissions reinforce residents' concerns in regards to bushfire, threats to wildlife from domestic animals, additional clearing and the spread of weeds, and the proposed rezoning to E2. Consideration 31In determining the development application, the Court must take into consideration the relevant matters is s 79C of the EPA Act. 32Notwithstanding the proposed rezoning of the majority of the site to E2 - Environmental Protection, the site is currently zoned E3 - Environmental Management under WLEP and subdivision is permitted with consent. No evidence was adduced indicating that the rezoning was imminent or certain. 33The proposal complies with the minimum lot size - all lots are in excess of 40 ha. Amongst other things, dwelling houses are permitted with consent. However, this application is for subdivision and associated works. Any future dwelling or any other development will be subject to a new development application and assessment process. 34The physical works including road and drainage works are primarily confined to existing roads and tracks. The marked up aerial image shows the majority of the Asset Protection Zone (APZ) to be located on cleared land outside of dense bushland and along existing access tracks. While some tree removal is likely, the location of the APZ appears designed to minimise clearing and disturbance. 35Two of the four building envelopes are on cleared land and the indicative 10m extension for possible tree removal in accordance with the 10:50 code does not appear to include any trees. The building envelope on Lot 5 is primarily on cleared land; the additional 10 m buffer indicates some trees may be removed however the notation on the approved plans states that no smooth-barked trees are to be removed from that 10 m buffer. The building envelope on Lot 6 will require tree removal however the envelope appears to be on the most-disturbed portion of the lot. Of the four lots with building envelopes, Lot 6 will remain the most heavily vegetated. 36I note that the amended proposal reduces the number of building envelopes from six to four and there are no hollow-bearing trees shown in the immediate vicinity of the remaining building envelopes (Flora and Fauna Assessment Report, Conacher Environmental Group, December 2012). 37Apart from a small easement for drainage on part of Lot 7, the plans indicate no construction activities within, or any other disturbance of, the heavily vegetated and vast majority of the lots. 38Detailed conditions of consent (including conditions 22-27, 33, 35-37, 39, 43-47, 50, 55-56, 65-66, 86-90 and 99) have been imposed to minimise the impact of any drainage water/ sediment generally and specifically on the relatively undisturbed portions of the lots. 39Conditions of consent 41, 49, and 99.10 relate specifically to flora, fauna and bushland conservation management. The Provisional Bushland Conservation Management Plan prepared by Kevin Mills & Associates dated June 2014 (exhibit B) proposes a restrictive covenant under s 88E(3) of the Conveyancing Act 1919 with the aim of ensuring the protection of the site's conservation values. Condition 99.10 requires the submission of a final s 88B Instrument to Council or Principal Certifying Authority which incorporates, amongst other things, bushland conservation and management. Condition 100 requires Wollongong City Council to be the nominated authority for any variation in regards to the s 88B instrument. 40In regards to the submissions made by the objectors, little weight can be given to a prospective rezoning of the majority of the site; as the gazettal of the changes is neither imminent nor certain, the Court must consider the current zone and its objectives. As stated above, the development application is for subdivision and associated works, not for individual dwellings. Should a development application be made it will be up to the council/ consent authority to consider whether it should be approved and what conditions should be applied - for example in regards to domestic pets, fencing and so on. 41I note the council's submissions and a report prepared by the Council's City Wide Development Manager (exhibit 2) in regards to the amended proposal. The amendments reduce the number of lots. All except Lot 7 are contiguous and all are now of a compliant size. The council is also satisfied that the building envelopes are sited so as to minimise the loss of trees and any subsequent impact on fauna. The council considers that the development is unlikely to have any unreasonable impacts on the environment or amenity of the area. It is council's view that the proposal is appropriate given the current zoning and character of the area and is therefore in the public interest. 42On the basis of the evidence before me I am satisfied that the proposed development meets the objectives of the E3 zone and the relevant provisions of WLEP and WDCP. Conclusions and orders 43Having considered the proposal, the agreed conditions of consent, the submissions of the objectors and parties, and matters in s 79C(1) of the EPA Act, I am satisfied that the appeal can be upheld and the development approved. 44By consent, the orders of the Court are: (1)The appeal is upheld. (2)Development consent is granted to development Application No. DA2012/1480 for the consolidation and subdivision of land at Otford Valley Farm, Lilyvale Road, Lilyvale; Lot 7 Private Road, Helensburgh; and Otford Valley Farm, 53 Lady Carrington Road, Otford, subject to the conditions set out in Annexure "A". (3)The Court notes the agreement there be no orders for costs. (4)Exhibits 1 and B are returned. __________________________ Judy Fakes Commissioner of the Court Annexure A Amendments 02 January 2015 - Burrell Lawyers for the applicant corrected to Burrell Solicitors Amended paragraphs: Judgement Coversheet 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 January 2015