Land and Environment Court New South Wales

• Medium Neutral Citation: Landmark Group Pty Ltd v Lane Cove Council [2011] NSWLEC 1245
• Hearing dates: 2, 3 August 2011
• Decision date: 22 August 2011
• Jurisdiction: Class 1
• Before: Hussey C

Decision

1 The appeal is allowed.

2 Development consent is granted to D198/10 for the demolition of 4 dwellings and construction of a 4 - storey residential flat building containing 58 dwellings at 554 - 560 Mowbray Road, Lane Cove subject to the conditions in Annexure A.

3 The exhibits may be returned except 2, 10, 11, A, B, C, D and H.

• Catchwords: Residential Flat Building; Bushfire risk, adequacy of road system
• Legislation Cited: Environmental Planning and Assessment Act 1979; Lane Cove Local Environmental Plan 2009; SEPP No 19 - Bushland in Urban Areas; SEPP No 55 - Remediation of Land; SEPP No 65 - Design Quality of Residential Flat Development
• Cases Cited: Dames and Moore Pty Ltd v Byron Council [2000] NSWLEC 46
• Category: Principal judgment
• Parties: Landmark Group Pty Ltd (Applicant); Lane Cove Council (Respondent)
• Representation: Counsel; Mr I Hemmings (Applicant); Solicitor; Mr A Seton (Respondent)
• File Number(s): 10412 of 2011

Judgment

Background

1 This appeal was lodged against council's refusal of a development application for the construction of a 4 storey residential flat building (RFB) and ancillary facilities at 554 - 560 Mowbray Road, Lane Cove.

2 The site is located within an area that was recently rezoned to permit this form of development. However, it is also within a designated bush fire prone area and the council has initiated steps for a review of this zoning. According to the Fact Sheet issued by the NSW Planning & Infrastructure in August 2011 the strategic review is to:

• Identify the opportunities and constraints to medium or high density development in the precinct;
• Examine the existing LEP controls to determine the likely dwelling yield of the precinct; and
• Identify any necessary infrastructure works to support the precinct's development.

3 The Fact Sheet notes that a number of applications have been made and states that development applications for residential flat development in the area will continue to be assessed in accordance with the provisions of the EP & A Act.

4 Notwithstanding that the review was announced after the appeal was lodged, the council identified one contention for this appeal, which is:

The development application should be refused because inadequate information has been provided to demonstrate that the existing road network in the Mowbray Road Precinct is able to adequately and safely cater for emergency vehicle ingress and evacuating vehicular egress in a bush fire emergency in circumstances where the cumulative effect of the proposed development and likely future development, in terms of increase in population density, will result in an increase in vehicle movements and reliance on the existing road infrastructure.

The site

5 The development site comprises Lots 2, 3 and 4 in DP 10892, and Lot 1A in DP 411031. It is located on the south - eastern corner of Girraween Avenue and Mowbray Road, Lane Cove.

6 The total site area is 2762.2 sq m. It has a 60.96 m frontage to Mowbray Road and a secondary frontage of 46m to Girraween Ave. The site falls from Mowbray Road to the south by approximately 8 m.

7 The surrounding area comprises a 2 - storey dwelling to the east and fronting Mowbray Road. To the west and across Girraween Ave is a 4 - storey RFB located at 562 Mowbray Road. Towards the south are 4 dwelling houses (No's 46, 48, 50 and 52 Gordon Crescent).

8 Further to the south across Gordon Crescent is a bushland area known as Batten Reserve.

The proposal

9 This proposal involves the demolition of the 4 existing houses on the site and the removal of a number of trees and vegetation to permit the erection of the 4 - storey RFB containing 58 dwellings and basement car parking for 93 cars. The building configuration is for:

• 25 x 1 bedroom dwellings
• 28 x 2 bedroom dwellings
• 5 x 3 bedroom dwellings

Planning controls

10 The primary control in this matter is the Lane Cove LEP 2009 under which the site is zoned R4 - High Density residential. The LEP came into effect in February 2010 and the proposed development is permissible with consent.

11 Clause 2.3(2) requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The R4 High Density zone objectives are:

· To provide for the housing needs of the community within a high density residential environment.

· To provide a variety of housing types within a high density residential environment.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· To provide for a high concentration of housing with good access to transport, services and facilities.

· To ensure that the existing amenity of residences in the neighbourhood is respected.

· To avoid the isolation of sites resulting from site amalgamation.

· To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

12 Part 4 of the LEP contains the principal development standards, which allows for a maximum building height in accordance with the Height of Buildings Map i.e. 12m in this case. It also specifies the allowable floor space ratio (FSR).

13 The other relevant controls identified for the appeal include:

• Lane Cove DCP 2010;
• SEPP No 19 - Bushland in Urban Areas
• SEPP No 55 - Design Quality of Residential Flat Development;
• SEPP - (Building Sustainability Index) 2004.
• Planning for Bushfire Protection 2006.

The evidence

14 The evidence presented to the Court indicates that this application has been subject to detailed council planning assessment, which has encompassed:

• Referral to the Sydney East Joint Regional Planning Panel (JRPP), where it was initially deferred, and
• Referral to NSW Rural Fire Service (RFS) for comment.

15 This process has resulted in a number of detailing amendments being undertaken to the design as required by JRPP. However on 18 May 2011 JRPP refused the application on the grounds that there was no expert opinion providing satisfaction that the roads in the Mowbray Road Precinct are adequate to cope with likely evacuation traffic in a bush fire emergency.

16 Notwithstanding this decision, the Court was informed that there is agreement by the parties that the overall design of the building is acceptable, apart from the bushfire access issue. Consequently, no expert evidence was presented relative to building design matters and I therefore rely on the aforementioned agreement.

17 In response to the identified issue, joint evidence was presented by:

• Mr B Eadie; Applicant's bushfire consultant;
• Dr D Wotherspoon; Council's ecology/bushfire consultant;
• Mr R Dowsett; consulting traffic engineer;
• Mr M Bridgman; consulting traffic engineer.

18 A number of neighbours gave evidence at the view and this has been considered together with the numerous objections contained within council's bundle of documents. The scope of these objections can summarised as follows:

• Dissatisfaction with the current zoning provisions that allow the high density residential flat buildings in the precinct.
• Adverse amenity impacts on adjoining properties and public space areas.
• Development will have an adverse impact on the Batten Reserve, which contains various threatened flora and fauna species. Likely adverse impacts on the reserve from altered ground water flows.
• The area has a high bush fire risk classification and the existing roads in the area will be unable to cope with the intensification of development.
• The frightening experience of the 1994 bush fire in this area.
• The traffic report commissioned by the Department of Planning is unreliable because it does not consider the ultimate development scenario under bush fire threat.

Bushfire Risk

19 As noted, the site is mapped as being Bush Fire Prone Land - Vegetation Buffer 100m and 30m . The bush fire experts initially qualified their assessment on the basis that it only deals with the subject site as they did not have access to sufficient data to assess the capacity of the precinct to cope in a bush fire emergency.

20 Consequently Mr Eadie and Dr Wotherspoon agreed on the following matters:

(a) Asset protection zones

(i) The building is close enough to Batten Reserve that flame length (<35.81 m sustained, 71.62 m flaring) is going to impact the building, even with shielding provided to the building by other buildings between the development and Batten Reserve.

(ii) Radiant heat is 16.3kW/sq m at the corner of the site (52 m) and 13.8kW/sq m at the entry/exit of the building (58 m).

(iii) Flame length and radiant heat are likely to affect the entry and exit point for the building on Girraween Ave.

(iv) Fires in Batten Reserve or bushland to the north have the potential to create a smoke plume and ember shower in the Girraween Ave Area.

(b) Access for fire fighting operations

(i) Planning for Bushfire Protection 2003 considerations (section 4.1.3 (1) page 20, 21) relates to design requirements for new residential/rural residential subdivision of land and is an appropriate guide for assessment of this site.

(ii) Road width Girraween Ave is 7 m.

(iii) The effective width of the street is 3 m with parking on both sides. Turning curves are less than those specified by PBP 2006 for new subdivisions. Notwithstanding, these do not constitute an unreasonable impedance to emergency vehicle access if kept clear of parked cars.

(iv) First response by NSW F&R will be by large pumpers.

(v) The public road is all weather, two wheel drive.

(vi) Public roads >6.5 m to locate hydrants outside parking reserves.

(c) Water supply for fire fighting operations

Hydrants in Gordon Crescent are available in the road verge for water supply for fire appliances.

Installation of fire fighting water supply to the building is in accordance with AS2419.1 2005. This includes a hydrant booster valve at the footpath adjacent to the main entry of the building.

(d) Bushfire construction standards

The design compliances with relevant BCA requirements including construction to BAL19.

(e) Emergency management

A bushfire emergency management plan or bushfire survival plan for each dwelling unit has not been prepared to educate the building occupants to evacuate or remain in the building. An emergency management plan is to be prepared as part of the conditions of consent prior to occupancy of the building.

(f) Other issues

Residents will evacuate by car.

Evacuation by foot is not likely due to smoke and ember attack.

21 The principal point of disagreement raised by Dr Wotherspoon concerns the potential requirement for evacuation of the building, which he says could occur in the following ways:

(a) Individuals will decide to leave of their own accord, in response to RFS encouragement to have a plan prepared in advance.

(b) Emergency services personnel may order an evacuation in a catastrophic event. Residents will evacuate by car. Evacuation by foot is not likely due to smoke and ember attack. The rest of the precinct in its existing form is such that some evacuation will occur.

22 On the basis of this worst case scenario, Dr Wotherspoon says that emergency services personnel will not have a safe operating environment. Also that residents moving in or out of the building at the driveway, while waiting for a break in the traffic, will be exposed to an unsafe environment i.e. Radiant heat> 10 kW/sq m.

23 Against this, Mr Eadie adopts a different approach whereby it should recognised that the building is to be designed and built to Bush Fire Attack Level (BAL - 19) AS 3959 2009 standard. This means that it should be safe for residents to remain in the building as the fire front passes. Likewise the basement should also be relatively secure from fire damage so that vehicles and equipment do not require shifting in emergency situations.

24 Notwithstanding that there will be other issues arising from smoke impacts in a bush fire event, Mr Eadie says that:

"With the implementation of an Emergency Management Plan (EMP) there would be minimal evacuation at the height of a bushfire impacting upon the proposed building. Any evacuation should be early in accordance with the recommendations of the RFS and following the recommendations of the Victorian Royal Commission. Evacuation during a bushfire event would be controlled by the Police and/or emergency services personel".

25 From my consideration of these disparate opinions, it seems to me that in the subject circumstances, Mr Eadies opinion has merit, taking into account the location of the building with its direct frontage to Mowbray Road and its BAL - 19 building classification. The cross examination of the witnesses revealed that:

• The assumed bush fire event was modelled for a fire front approaching from the south from Batten Park direction.
• There would be a fire front in the order of 14 kW for about 2 minutes.
• The heat would then diminish to less that 10 kW.
• The orientation of the building has its front door sheltered away from the direction of the fire front.
• It is not usual practice to direct people to evacuate do to smoke presence. Although if this is necessary, it can be undertaken in an orderly way under the provisions of some emergency plan.

26 After having raised the evacuation scenario, Dr Wotherspoon agreed that the following 3 options would likely trigger evacuation procedures and he subsequently conceded that:

(i) Radiant heat: this would not cause evacuation considering the BAL - 19 building specification;

(ii) Ember shower: this could cover a wide area/distance but would not cause evacuation in the subject context;

(iii) Smoke: this would not cause evacuation.

27 When further examined on his experience in bush fire management issues, Dr Wotherspoon admitted to very limited experience and that he had never prepared a bushfire evacuation plan. When tested further, he admitted to having little, if any knowledge of DISPLAN, Sydney North Emergency Management District Disaster Plan (DPLoc), NSW State Bush Fire Plan (A Sub Plan of DISPLAN).

28 Whilst these documents were not particularised in the SoFC or specifically referred to in the joint statement, nevertheless Mr Eadie seemed more aware of the provisions and indicated that they formed the basis for his approach. These documents were admitted into evidence and from the submissions I am satisfied they are relevant documents.

29 Accordingly, the relevant sections brought to the Court's attention in DISPLAN are:

• Par 114 clearly includes "bush fire emergency" and prescribes control measures. Par 223 refers to Standard Emergency Warning Signal (SEWS), which details the manner in which the public is to be alerted so as to reduce potential loss of life and property. Par. 513 recognises that evacuation is a possible strategy in combating a particular hazard. It states that:

514. The decision to evacuate persons or animals is not a decision which should be taken lightly. Evacuation necessitates a coordinated approach to ensure that all of the evacuees needs are met. In some circumstances, it may be more appropriate for people to remain in place and take other measures to ensure their safety.

515. The requirement to evacuate or stay should ideally be identified during the planning process and be included in Agencies' Sub Plans or Standing Operating Procedures as necessary. However on occasions immediate evacuation may become necessary.

516. The Agencies with the authority to order evacuation are to ensure that the affected community is informed, through a public information programme, of the proposed evacuation.

(i) The Controller responsible at the time (Combat Agency Controller or EOCON) will determine the need for evacuation.

517. If evacuation is the preferred option, the controller is to consult with:

(a) the Welfare Services Functional Area Coordinator to identify a safe and suitable Evacuation Assembly Area or Welfare Centre.

(b) consult with the Transport Services Functional Area Co-ordinator to arrange suitable transport from and return to the affected area.

(c) consult with the Agricultural and Animal Services Functional Area Coordinator to arrange safe and suitable animal evacuation areas / centres.

30 The details in the Sydney North Displan provide more local initiatives. At Par 302 it refers to the responsibilities of local bush fire committees to prepare and implement bush fire risk management plans. Evacuation is dealt with at Par 619 whereby this is considered a possible strategy. Details for implementation are then included.

31 Reference to the NSW State Bush Fire Plan (Ex G) requires councils to have regard to Planning For Bushfire Protection (2001) in assessing development applications and for some referrals to the RFS. Section 5.5 deals with evacuation, again on the basis that it is a possible evacuation and it states:

5.5.3 Evacuations should be carried out in accordance with evacuation plans. Generally, capable residents should not be evacuated from properly prepared dwellings likely to be impacted upon by bush fires. Last minute evacuations should be avoided.

32 In summary then, I rely on the agreement of the consultants that the proposed dwellings will be classified as "properly prepared dwellings" due to the required BAL - 19 construction. Accordingly, a bush fire event should not automatically trigger a major, chaotic evacuation procedure as suggested by Dr Wotherspoon.

33 Instead, if the comprehensive procedures are followed in the various parts of DISPLAN and applied to the local area, then I am satisfied the level of risk can be managed. Considering Dr Wotherspoon's obvious lack of knowledge on these "state wide" procedures, I do not consider his opinion is to be relied upon. Instead Mr Eadie presented a more compelling explanation of bush fire control measures.

34 In this regard, I note that there was some discussion about the behaviour of people in bush fire events but this was speculative and of little assistance to the Court. In any case, no specialist evidence on person behaviour was presented. However it does appear that in the circumstances there would be beneficial opportunities to inform new residents of the bush fire risk and any emergency procedures via the body corporate communication.

Traffic

35 The associated issue concerns the adequacy of the existing road network to accommodate vehicles in a bush fire emergency. However, the expert evidence is of little use in addressing this question because it did not involve an overall strategic review of the efficiency of the road network.

36 But the traffic experts did undertake an assessment of the subject development and found that due to the location of the site and the required standards; they had no issues with traffic impacts. On questioning, they agreed that there could be some benefit in restricted parking along the eastern side of Girraween Ave to allow better passing opportunities but this would need to be balanced against other considerations on the use of the road space.

37 Apart from this there was reference to the Urbanhorizons traffic report, which was prepared for the DoP in March 2011. The executive summary states:

This report details the findings of a review of the existing road infrastructure in the Lane Cove North precinct (study area) for its ability to cater for vehicular movement during a bushfire given planned increases in density provided for in the Lane Cove LEP 2010 (my emphasis) . The study area is bounded by Centennial Avenue, Mowbray Road West, Willandra Street and Batten Reserve. See aerial plan on page 9 . The residential properties north of Gordon Crescent and Kullah Parade are designated as bushfire prone land 'buffer area' in LCe's June 2010 Bush Fire Prone Land map. Batten Reserve is classed as ' high risk' on the same map.

38 In response to concerns raised in the hearing about the reliability of this study, it appears that the author was clearly aware of the requirement to assess traffic impacts during bush fire events. Consequently, the report concluded with a number of road improvement measures, none of which directly affect the subject site. Another conclusion was that the RFS and council should development an updated DISPLAN, which was integrated with a comprehensive traffic study.

39 In addition to this, the report also recommended some works in Batten Reserve to improve RFS accessibility as follows:

• Removing lower limbs of trees abutting the southern side of Gordon Crescent and Kullah Parade up to a height of 4m above the ground.
• Reducing the tree canopy cover in Batten Reserve to between 15 and 30%.
• Moving the understorey of Batten Reserve along the southern side of Gordon Crescent and Kullah Parade.

40 Whilst these measures would have some impact on the reserve, it seems that in light of the bush fire evidence, they would probably be sensible options to consider in reserve management so that the existing residents a afforded a reasonable level of protection.

41 Insofar as the credibility of this report was challenged, the CV of the author Mr P Brogan was tendered. It shows that he is highly qualified and experienced in undertaking traffic modelling assignments such as this. The council presented no compelling evidence that would warrant setting this report aside.

42 As I noted previously, the application was referred to the RFS, which resulted in various correspondence including the following RFS response of 21 March 2011:

From the outset of the rezoning of the Mowbray Precinct allowing high density development within the locality, the NSW Rural Fire Service (RFS ) ha s worked with Lane Cove Council in appreciating their concerns regarding the preservation of the environmentally significant bushland of Stringybark Creek Reserve and in ensuring any new development in the rezoned area can be afforded appropriate bush protection measures for compliance with Planning for Bush Fire Protection 2006. This was reinforced from our meeting of 22 July 2010, where potential constraints and parameters were explored and incorporated into future design considerations within the precinct, with the aim of council forwarding this advice to applicants at the prelodgement stage .

43 Insofar as the RFS referred to a recommendation that council consider a traffic report, this was qualified by the comment that:

"It was not based on any identified deficiency by the RFS , rather the need for council to be satisfied with access and egress when considering increased residential density when approving development within the precinct."

44 Accordingly the RFS is satisfied with the development proposal providing its conditions are imposed on any consent.

Conclusions

45 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this application merits conditional consent. The site is situated within the R4 High Density Residential zone under LEP 2009 and is a permissible development. The details of the development design have been subject to careful assessment resulting in no substantive issues regarding the building design. I also understand that it comfortably satisfies the requirements of SEPP 65.

46 Whilst it is obvious council objects to the zoning, nevertheless this is the current zoning under which the application is to be determined. Considering that the LEP has been in existence since early 2010, there is no action that would warrant setting the LEP aside, including the proposed strategic review, which acknowledges that current applications will be determined on the basis of the existing provisions.

47 Insofar as submissions were made regarding the adequacy of the LEP, I assume it was made with regard to due process. That would include consideration of the provisions of Planning for Bush Fire Protection , as outlined in chapters 1 and 2.

48 The main issue raised then concerns the adequacy of the existing road network to cope in a bush fire evacuation event. However the evidence shows that the building will be built to a BAL - 19 standard, which classifies the units as "properly prepared dwellings", where residents would most likely be encouraged to remain in the dwelling until any fire front has passed.

49 Importantly, under this classification, the comprehensive disaster planning measures consider evacuation as a possible option and one that should not be made lightly. As previously mentioned, Dr Wotherspoon did not demonstrate any specialised knowledge of bush fire emergency control and I give his evidence focussing predominantly evacuation in this regard, diminished weight.

50 Instead, it seems more appropriate to rely on the greater experience of Mr Eadie who says there is reasonable opportunity to prepare a satisfactory Emergency Management Plan (EMP) that provides a reasonable level of bush fire protection to the residents in this development.

51 Based on the evidence, this would likely encourage residents to remain in the building and if required, they could be evacuated via Mowbray Road where they would be subject to the same level of risk to many other existing residents of the precinct. However, I am satisfied this could be done in an orderly way that would avoid the 'panic' traffic scenario suggested by Dr Wotherspoon.

52 I also take some comfort in this approach from reference to the council's Plan of Management for Bushland in Lane Cove (Ex H). I consider it relevant because the main fire source and direction of travel is from Batten Reserve. It is a comprehensive local plan that details bushland management (i.e. fire fuel sources) actions in conjunction with:

3.3.5 Bushfire Hazard Reduction

3.3.5.1 Objectives

1. To protect life, property and the environment from bushfire.

2. To specify and implement measures to reduce hazard from bushfire.

3. To undertake controlled burns for the sake of managing ecological diversity.

53 Section 3.3.5.2 then states:

Lane Cove Municipality has not been considered a bushfire prone area. The reserves are small and discontinuous . Hazard reduction, by the removal of weeds, dumped rubbish and other hazards, in the extensive areas of bushland under a regular regeneration program means that bushfire hazard has been reduced in many areas . The network of walking tracks and drainage lines through the reserves can act as fire breaks in the event of any wildfire. The proximity of neighbours to the reserves, the response time of the local Fire Brigade and the easy access to the reserves from roads or through properties means that any fires which do occur can be put out quickly.

54 Whilst this indicates some inconsistency with the Bush Fire Prone Land Map, I am satisfied that with the input of the various authorities that an appropriate emergency management plan can be prepared. This also incorporate safety measure for existing residents living in this precinct.

55 In summary, whilst I have considered the objections, I do not consider there was any substantive evidence that would lead to the refusal of the application. I am aware of the sensitivity of Batten Reserve but do not consider that the development will directly impact it. If some fire protection maintenance is required, that would be the case irrespective of the development so as to protect existing residents and property.

56 I have considered the zone objectives as required by cl 2.3 (2) of the LEP 2009 and am satisfied the proposal merits conditional consent. In this regard I note the submission regarding the findings of Bignold J in Dames and Moore Pty Ltd v Byron Council [2000] NSWLEC 46 where he stated:

48. Accordingly, in my evaluation of the proposed development required to be undertaken by the EP&A Act s 79C(1) , I have concluded that the likely environmental impact of the proposed development is sufficiently adverse as to be unacceptable, given the extreme botanic importance of the endangered flora located on the development site.

49. Moreover, if it is legitimate, as I consider it to be, that an assessment of environmental impact include any cumulative impact of other likely developments (cf the Environmental Planning and Assessment Regulation 1994 cl 82(2)(o) ) and most notably, the removal of most of the endangered vegetation in the carrying out of the 1995 approved development, then my conclusion on the unacceptability of the environmental impact is a fortiori, indeed on the undisputed evidence it is overwhelming.

57 However, I do not consider the evidence confirms that the approval of this development will result in any unacceptable environmental impacts. According to the contention, the main concern in this case is the cumulative impact of traffic in a bush fire event but this was not established by council. Instead it is probable that there would be no significant increase in traffic if residents are properly informed and stay in their dwellings as stated by Mr Eadie.

58 The conditions were mostly agreed except for the following determination:

• Condition 47; deleted as no compelling details were submitted to confirm its reasonableness.
• Condition 48; retain so as to keep record of truck movements.
• Condition 81; to be note only.
• Condition 90; condition to remain.

Court orders

59 The Court orders that:

1 The appeal is allowed.

2 Development consent is granted to D198/10 for the demolition of 4 dwellings and construction of a 4 - storey residential flat building containing 58 dwellings at 554 - 560 Mowbray Road, Lane Cove subject to the conditions in Annexure A.

3 The exhibits may be returned except 2, 10, 11, A, B, C, D and H.

R Hussey

Commissioner of the Court

Amendments

07 November 2011 - Typo - address changed from 544 - 560 to 554 - 560
Amended paragraphs: Para 1 and Order 2

Decision last updated: 07 November 2011