Land and Environment Court New South Wales

• Medium Neutral Citation: Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC 1248
• Hearing dates: 1, 8 August 2011
• Decision date: 23 August 2011
• Jurisdiction: Class 1
• Before: Morris C

Decision

The matter is listed for mention at 4pm on Wednesday August 31 2011

• Catchwords: Residential Flat Building; Bushfire risk, traffic; impact on road infrastructure; ability to evacuate.
• Legislation Cited: Environmental Planning and Assessment Act 1979; Rural Fires Act, 1997; Lane Cove Local Environmental Plan 2009; State Environmental Planning Policy No 65 - Design Quality for Residential Flat Development.
• Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321.
• Texts Cited: Planning for Bushfire Protection 2006; AS 3959-2009 Construction of buildings in bush fire prone areas; Lane Cove Development Control Plan; Building Code of Australia; State Disaster Plan; the Hunters Hill, Ryde, Lane Cove, Willoughby Bushfire Management Committee's Bushfire Risk Management Plan; Hunters Hill, Ryde, Lane Cove, Willoughby Bushfire Management Committee's Bushfire Risk Management Plan - Operations.
• Category: Principal judgment
• Parties: Hinset Pty Limited (Applicant); Lane Cove Council (Respondent)
• Representation: Counsel; Mr P Tomasetti SC (Applicant); Solicitors; Maddocks Lawyers (Applicant); Mr A Seton; Marsdens Law Group (Respondent)
• File Number(s): 10465 of 2011

Judgment

1 This is an appeal against the refusal by Lane Cove Council (the council) of Development Application No. D266/10 (the application) which proposed demolition of three existing dwelling houses and the construction of a four storey residential flat building containing 32 dwellings with associated two level basement car parking for 53 cars, 4 motor cycles and 7 bicycles at Nos. 9-13 Mindarie Street, Lane Cove North (the site).

2 There is only one contention in the case and that is whether the applicant has provided sufficient information 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 bushfire 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 and its context

3 Mindarie Street runs south off Mowbray Road West and turns in a westerly direction towards Willandra Street, which connects in a northerly direction back onto Mowbray Road West. The site is located on the northern side of Mindarie Street, is irregular in shape, falls from the rear to the street, and has a frontage of 50.29m and site area of 1839sqm. Three dwelling houses and associated outbuildings currently stand on the site and are proposed to be demolished to allow the proposed development.

4 Single storey brick/tile dwelling houses dominate the vicinity of the site with the exception of one two storey dwelling located immediately to the east of the site and a small seniors living development (8 units) opposite.

5 To the south of the site fronting Kullah Parade is Batten Reserve, a bushland area.

Background and the proposal

6 The application proposes the construction of a four storey residential flat building over a two level basement car parking area. A total of 32 units are proposed comprising 13 x one and 19 x two bedroom dwellings, of which 7 are adaptable units.

7 The application was assessed against the council's planning controls and a report regarding the application by the council's Executive Manager, Environmental Services Division, found it to be compliant with the council's local environmental plan and the 10 design principles of State Environmental Planning Policy No 65 - Design Quality for Residential Flat Development (SEPP65). It was also compliant with the council's development control plan with the exception of one matter, which was deemed acceptable and not pressed by the council.

8 Accordingly, the council does not raise as a contention any design or amenity issues.

9 The council refused consent to the application on the following ground:

1. Issues with regard to bush fire evacuation are outstanding. The traffic report prepared by Urbanhorizon is inadequate and unsatisfactory. Council does not endorse any of the "options for amelioration" or any of the suggestions such as reducing the tree canopy of Batten Reserve to 15-30%. Council is not satisfied that satisfactory evacuation can occur in case of a bushfire emergency situation.

10 The Urbanhorizon traffic report is a report that was commissioned by the Department of Planning in response to concerns raised by the Rural Fire Service (RFS) through the Joint Regional Planning Panel's consideration of a number of development applications for larger scale developments within the precinct in which the site is located. It is not a report that was prepared on behalf of the applicant. It is however, a report relied upon by the RFS in providing its comments to the council in relation to the application, and in particular its initial concern in relation to whether the existing road infrastructure in the area can handle the increase in usage brought upon by the entire rezoning process. The RFS requested that it be provided with an assessment of the impact of this development on the surrounding road infrastructure in an emergency situation whilst taking into account existing and future road users on surrounding properties.

11 The Urbanhorizon report included a series of options for amelioration as it identified that the existing road widths and some turning areas within the precinct do not comply with RFS Planning for Bushfire Protection 2006 (PBP2006). Those options are:

• Ensure the parking needs of higher density development are met entirely within the confines of the development sites and restrict on-street parking to one side of particular streets (Gordon Crescent, Kullah Parade, Pinaroo Place, Merinda Street and part of Willandra Street);
• Provide a rollback mountable kerb along the Batten Reserve side of Gordon Crescent and Kullah Parade and at other appropriate locations to facilitate RFS vehicle access and operations in a fire event;
• Impose a setback requirement on new higher density development to enable road widths and turning areas to be increased over time in Gordon Crescent, Kullah Parade, Pinaroo Place, Merinda Street and Willandra Street;
• Undertake works to increase road widths and turning areas funded through contributions for higher density development in the precinct.

12 The report also concluded that the RFS and Council should develop an updated Displan for the area along with the Council's Emergency Management Committee and that a comprehensive traffic study would best be integrated with the update of that plan.

13 The council has advised the RFS that it does not endorse any of the recommendations of the Urbanhorizons report. Despite this fact, the RFS has advised the council that it has endorsed all the findings and recommendations of the report, which it says, will provide a better outcome to the existing road infrastructure in the event of a bush fire. It has recommended that any approval of the application should include conditions that require asset protection zones and design and construction standards to accord to the requirements of AS 3959-2009 Construction of buildings in bush fire prone areas.

The Planning controls

14 The site is zoned R4 High Density Residential pursuant to the provisions of Lane Cove Local Environmental Plan 2009 (the LEP) in an area known as the Mowbray Road precinct (the precinct), an area bounded by Mowbray Road West, Willandra Street, Batten Reserve and Centennial Avenue. The LEP was made on 2 February 2010 and, according to the information contained in a report to council included within the council's bundle of documents, Exhibit 7, the rezoning of the area was performed by the Department of Planning contrary to the resolution of the council.

15 It is clear that the council does not agree with the R4 zoning of the land and has in fact resolved to seek approval of the Minister to make a new plan that would downzone the area. Exhibit 16 provides details of a decision by the Department of Planning and Infrastructure (the Department) to prepare a joint strategic review of the Mowbray Road precinct with the council. According to a Fact Sheet issued by the Department, the review will:

• Identify the opportunities and constraints to medium or high density residential 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 future development.

16 As this review is the beginning of a process that may or may not lead to the preparation of a draft local environmental the application must be determined on the basis of consideration of the current planning controls.

17 Residential flat buildings are permitted with consent in the R4 zone and the council is satisfied that the application meets the objectives of the zone and the relevant development standards.

18 SEPP65 and the Lane Cove Development Control Plan (the DCP) also provide controls relevant to the application and the council's assessment against those controls has found the application to be satisfactory.

19 The site is partly mapped Bushfire Prone Land - Vegetation Buffer and is within approximately 73 metres of Batten Reserve, an area identified as Bushfire Prone Land - Vegetation Category 1.

20 The application was lodged with the council on 11 November 2010 and at that time the provisions of s79BA of the Environmental Planning and Assessment Act 1979 (the Act) included matters to be considered in relation to bushfire prone land as follows:

79BA Consultation and development consent-certain bush fire prone land

(1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land unless the consent authority:

(a) is satisfied that the development conforms to the specifications and requirements of Planning for Bushfire Protection , ISBN 0 9585987 8 9, produced by the NSW Rural Fire Service (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document), that are relevant to the development, or

(b) has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire.

(2) In this section:

special fire protection purpose has the same meaning as it has in section 100B of the Rural Fires Act 1997 .

21 The development is not Integrated Development in accordance with s91 of the Act.

The issues

22 Whilst there is only one contention raised by the council (refer para 2), it requires consideration of three distinct matters:

(1) Whether the existing road network in the Mowbray Road precinct can adequately and safely cater for emergency vehicle ingress and evacuating vehicular egress in a bushfire emergency.

(2) The cumulative effect of the proposed and likely future development in a bushfire emergency on the existing precinct.

(3) Whether the development will increase vehicle movements and reliance on the existing road infrastructure.

The contention is framed around the issue raised initially by the RFS (refer para 10) but now resolved to its satisfaction on the basis on the Urbanhorizons report. The RFS response was made with the knowledge that the council did not endorse any of the findings of that report.

The evidence

23 The hearing commenced on site when evidence was heard from a number of residents and a representative of the Stringybark Creek Resident's Association who objected to the proposal. The matters raised by them can be summarised as:

• Concerned about the impact of this and future developments within the precinct in the event of a bushfire due to increased population, vehicles and traffic impacting on the ability to evacuate the precinct.
• Design of the building is out of character with the area due to its bulk, causes overlooking and overshadowing of properties and loss of privacy as well as overshadowing of the public domain.
• Development would isolate site from future development due to minimum lot sizes.
• Zoning of the precinct is inappropriate and council has resolved to back-zone it.
• Scale of development will adversely affect the local road and infrastructure and roads are too narrow, have poor sightlines and steep inclines which make it unsafe to carry the additional traffic.
• Inadequate public transport and facilities in the area to cater for increased population.
• Development will have adverse impacts to the threatened species in Batten Reserve and the provision of detention tanks will alter the natural flow regime within the reserve.
• Noise, pollution and brown water discharge.
• Development is contrary to Metropolitan Strategy.
• 1994 bushfire in Batten Reserve saw traffic congestion at Gordon Crescent and Elizabeth Parade roundabout, which prevented access by the fire brigade so concerned that additional population within precinct will mean that it is not safe to evacuate the precinct in the event of a bushfire.
• No consideration of smoke impacts.
• There was no environmental study undertaken prior to the Department of Planning rezoning the land for high density development.
• The traffic report prepared for the Department of Planning is flawed and does not take into account the likely density of the area if all sites are redeveloped.

24 The council does not press any of the design or merit issues raised by the residents.

25 Expert evidence was heard from Mr Swain and Mr McMonnies (bushfire) and Mr Marshall (traffic) for the applicant and Mr Bridgman (traffic) and Dr Wotherspoon (Ecology/bushfire) for the council. All five experts had participated in joint conferencing and had prepared the only expert report tendered in evidence. The report provided little detail to assist the Court in resolution of the contention and therefore, it was necessary for the experts to respond to questioning during the proceedings to ensure that an informed consideration of the matter could be made.

26 The experts agree that they had inadequate data and information to enable them to make a reasonable assessment of the capacity of the precinct to cope with increased development density in the event of a bushfire when all land within the precinct is redeveloped for high-density housing. They also agree, pursuant to s79C(b) and (c) and s79BA of the Act, the relevant issue on which they provide evidence is whether the application can be approved in the light of the bushfire risks to which the development can be exposed and that those risks are to be considered under the criteria of PBP2006 and the Building Code of Australia (BCA).

Areas of agreement - bushfire

Asset protection zones

27 It is agreed that the proposed building is far enough from Batten Reserve that flame length (<32m sustained) is not going to impact the building with shielding provided to the building by other buildings between the development and Batten Reserve. The radiant heat is less than 12.5kW/m 2 at the face of the building and potential smoke plumes may affect the site with ember attack also possible.

Access for fire fighting operations

28 The experts agree that PBP2006 considerations for design requirements for residential/rural subdivision of land are found in s 4.1.3(1) of the document and that the width of Mindarie Street pavement is 7.3m which provides the capacity for parking on both sides and an effective trafficable width of 3.3m if cars are parked on both sides.

Water supply for fire fighting operations

29 Hydrants in Mindarie Street 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.

Building construction standards

30 The design of the building complies with relevant BCA requirements.

Emergency management within the building

31 A bushfire emergency management plan has been prepared to educate the building occupants to remain in the building.

Areas of agreement - traffic

32 The rest of the precinct in its existing form is such that some evacuation may occur.

33 During cross examination, the traffic experts agreed that the quantum of parking to be provided on site would meet the parking needs of the proposed development and that it would be desirable that Mindarie Street was widened to provide a carriageway width of 8m so as to facilitate two way movement of vehicles in addition to two parking lanes. They also agreed that this widening could be accommodated within the existing road reservation with sufficient area retained for footpaths and that no part of the site would be required for road widening purposes.

Likely fire scenario

34 The evidence provided is that any fire within Batten Reserve is likely to burn west to east with any flames not reaching the building. All experts agree that, depending on wind direction and whether there is a fire in the Lane Cove National Park, smoke drift may affect the site. Mr Swain says that a smoke plume would last between 20-25 minutes if west to east but such a plume would not affect the site. If the wind was from the south-west, it would until the 50m run burns itself out and the impact of that smoke plume would be less than 10 minutes and more likely in the vicinity of 5 minutes.

35 Evidence of a number of emergency management plans that are relevant to bushfire considerations was tendered ranging from the NSW government's State Disaster Plan (Displan) to the Hunters Hill, Ryde, Lane Cove, Willoughby Bushfire Management Committee's Bushfire Risk Management Plan and Operations Plan. The two latter plans have been prepared in accordance with the requirements of Section 52 of the Rural Fires Act, 1997.

36 The Operations plan addressed the issue of evacuation in a bushfire event and the Co-ordinating Committee has considered this issue and adopted a policy on the evacuation of private homes during a fire. The committee does not favour the mass evacuation of local residents from properly prepared homes during a Bush Fire threat.

37 It is clear to me from the evidence provided that the management of bushfire emergency situations within the area of the site is well planned and accords with the relevant legislation.

The existing road network

38 Mr Bridgman had not undertaken any analysis of the existing road network. Mr Marshall had undertaken an assessment of the capacity of Mowbray Road East intersections and says that if the development is approved, there is sufficient capacity to cater for emergency vehicle ingress and evacuating vehicular egress in a bushfire emergency. His evidence is based on a number of assumptions in relation to the likely number of persons who would choose to evacuate and the car ownership, which he has ascertained from current census information for the precinct and says that this is likely to be relevant for higher density housing.

39 Mr Bridgman said that the likely impact of evacuation in a bushfire event should be based on a worst case scenario and whilst Mr Marshall accepted this, he did not agree that this would mean that 100% of residents would be home when a bushfire occurred. Accordingly, he said that his calculations were appropriate. His evidence on the performance of intersections was not contradicted.

40 Mr McMonnies says that the building has been designed so that it is safe to remain within it in a bushfire emergency and therefore, it would not be necessary to evacuate the site. He had prepared a Bushfire Hazard Assessment Report (Exhibit H) which considered the site specific bushfire risk and concludes that, incorporating the construction and safety measures recommended in that report, a reasonable and satisfactory level of bushfire protection will be provided and that it will satisfy the concerns of the RFS and council. For this reason, he says, and Mr Swain concurs, that residents of the proposed development should not evacuate the site but rather stay within their unit with all doors and windows closed and wait for the fire to pass. He says that as the building has been constructed to withstand ember attack and has reverse cycle air conditioning it will provide occupants with a safe environment in which they can remain.

41 Dr Wotherspoon says that there are two likely scenarios in the event of a bushfire, the first being that individuals would leave of their own accord and the second is that they would be ordered to leave in a catastrophic event by emergency personnel. He says that any evacuation would be by car.

42 He says that the 7.3m width of Mindarie Street requires no parking on one side of the street to ensure two-way vehicle movements along the roadway if vehicles are parked to ensure compliance with the provisions of s3.1.4 of PBP2006. Mr McMonnies and Mr Swain say that in practical application, two-way traffic flow can be achieved, as emergency vehicles will utilise driveways and gaps in car parking to pass in opposite directions.

43 Mr Bridgman does not support the imposition of no parking restrictions within the street as he says that this would have an adverse impact on residential amenity. Mr Marshall says that emergency vehicles would be able to negotiate parked cars.

Cumulative impacts

44 The council argues that the Court must take into account the ultimate development potential of the precinct and determine whether there will be adequate and safe access from the development in a bushfire event when the precinct is fully developed.

45 All experts agree that they do not have any information that assists in calculation of the ultimate development density of the precinct and none of them have attempted to quantify the likely dwelling yield under the current planning regime. A range of scenarios was suggested in the evidence provided varying from a figure of 1200-1500 dwellings based on the Urbanhorizons report to the council's estimate of approximately 2500 dwellings. From the evidence available, the higher estimate appears to be the more relevant outcome if all land zoned R4 was redeveloped to reflect the current planning controls.

46 At the present time, other than an existing 8 dwelling seniors living development opposite the site, there are no other high-density developments within the precinct. There have been six other development applications lodged with the council for such developments and the council has refused all of those on similar grounds to that of the application. I note that some of these matters are also subject of appeal to this Court. Two of those other applications are for properties in Mindarie Street, two in Mowbray Road, one with frontage to both Mowbray Road and Gordon Crescent and one in Gordon Crescent.

Whether the development will increase vehicle movements and reliance on the existing road infrastructure.

47 Mr Marshall says that the likely car ownership rate will be 1.1 vehicles per dwelling and this is similar to that of current ownership within the precinct based on the last census statistics. The quantum of parking to be provided on site exceeds this requirement and accordingly, he concludes that all parking needs generated by the application can be provided on site and therefore will not increase reliance on on-street parking. Mr Bridgman agrees however says that some residents may choose to park on the street rather than access the on-site parking.

48 Both traffic experts agree that there will be an increase in vehicle movements from the site. As stated above, Mr Marshall says, based on his analysis, that the existing road infrastructure can cope with the traffic generated by the development. No contrary evidence was provided.

49 It was agreed that it would be desirable to increase the width of Mindarie Street to 8m over time however it was not stated that this must occur before any development can take place within the precinct. Dr Wotherspoon said however, that this was the one area where the development did not satisfy the relevant requirements of PBP2006.

Findings

50 I must consider the application on the basis of the current planning controls and those controls permit the density of development as proposed. The council raises no objection to the design of the development and agrees that it is consistent with the aims and objectives of the LEP, the zone objectives and the DCP controls or, in the case of the DCP, where strict compliance is not achieved, that the variations are reasonable.

51 I have regard to BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 where, at paras 117-118, McClellan CJ says

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects ( Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

52 The zoning must be the primary consideration in this case. The site is zoned for high density housing and therefore there is an expectation that it can be developed for that purposes provided the relevant planning controls are met. In this case the council agrees that all of the relevant LEP controls are satisfied and accordingly, great weight can be given to that fact.

53 I have no evidence that the LEP was not properly made nor do I have evidence that the zoning of the land will change as a result of the recently announced review. The parties agreed that the review could result in a range of scenarios ranging from back zoning the precinct to increasing the density of residential development and could include maintaining the status quo.

54 The council's contention in this case is focussed on the ultimate development densities within the precinct and the ability of residents to safely evacuate in the event of a bushfire. At the present time, there is no evidence that the road network is inadequate to cope with an evacuation should a fire occur. I heard evidence from residents who had lived in the area during the 1994 fire in Batten Reserve however, whilst delays were experienced and access by emergency vehicles was hampered at one intersection, I have no quantifiable evidence that any person choosing to leave the site will not be able to do so in a safe manner.

55 The bushfire experts agree that the building is located so that it will not be impacted by flames and has been designed to withstand ember attack. They say that it would be safe to stay in the building in a fire and that this is different from the existing houses in the precinct, which would not be as safe.

56 The application includes a draft bushfire emergency management plan for the site and that would be used to educate residents within the proposed development of the options available in a bushfire emergency. The plan encourages residents to stay inside the building with all doors and windows closed. Mr Swain accepted that the behaviour of people in an emergency can be irrational however is of the view that people can and will stay within the building. For this reason, I am satisfied that whilst the R4 zoning of the precinct has the potential to increase the number of residents living within the area, there would not be a need for all of those persons to evacuate in the event of a bushfire.

57 In determining the application, I am bound by the provisions of s79C(b) of the Act, to consider the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. Mr Seton, for the council, argues that this extends to me considering the impacts of the development when the whole of the precinct is developed for high-density housing.

58 I accept that s79C is not an exhaustive list of considerations when determining a development application and that it does not limit me in considering other matters which are relevant to the application. In Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321, Preston CJ says:

55..... the obligation on the Commissioner was to determine the particular development application before the Court. The task involved assessing the impacts of the development proposed on the environment existing at the time of determination of the application. As noted, no work to reconstruct Governor's Road had been carried out pursuant to the 1995 consent. Hence, the vegetation in Governor's Road remained untouched. Consideration of the impact of the roadworks proposed in the current development application before the Court required the Commissioner to consider the existing vegetation in Governor's Road and the impacts that carrying out the roadworks would have on this existing vegetation. This task was in fact undertaken by the Commissioner.

59 Based on the evidence available to me, I am satisfied that the proposed development is consistent with the council's planning controls and will not have any adverse impacts on the natural or built environment or any adverse social and economic impacts on the locality. It is possible that, at some stage in the future, the density of development within the locality may reach a point when it is necessary to carry out works, particularly to roads within the precinct and perhaps to intersections and roads outside the precinct to ensure that a bushfire emergency can be satisfactorily addressed. I do not have any evidence as to if and when this threshold would be reached. I certainly do not have evidence that if consent is granted to the application, the road network is inadequate.

60 It is apparent from the evidence available that it is desirable to carry out interim works as development occurs. Consideration to the implementation of No Stopping zones adjacent to high-density development as it occurs could be an interim measure that would allow for passing bays to be in place in those streets that are below the 8m width until those roads are widened. Limiting the restrictions to new developments would not impact on the amenity of existing residents or change their ability to park outside their property and would be an appropriate short term planning outcome. I note that the experts agree that the total parking demands for the proposed development are provided for on site.

61 Mindarie Street is not one of the roads recommended to be widened in the Urbanhorizons report however, the experts agree that it would be desirable for the width of the carriageway to be increased over time. It is a matter for the council to determine the extent of works that will be required as redevelopment occurs and this is one matter that the recently announced review of the precinct should address. As the council has not prepared a s94 plan for the precinct, it is not possible to impose a condition of consent requiring payment of a contribution towards the cost of that roadwork however, it was agreed that a condition requiring payment of the costs of the work could be imposed. It was agreed during the hearing, that should the Court consent to the application, it would be appropriate to resolve the appropriate consent conditions to address this issue and the separate and distinct issue of waste management that was not agreed between the parties. This was because there were no experts available to discuss the conditions regarding waste management proposed by the council and it had not been a contention until the conditions were known. Other more general conditions have been agreed.

62 Subject to compliance with the above conditions and the other conditions recommended by the RFS in relation to construction standards, the evidence available allows me to conclude that it would be safe to remain within the development in the event of a fire and therefore evacuation would not be necessary. In addition, I am satisfied that the application would satisfy the requirements of s79BA of the Act and that the existing road network is satisfactory to allow safe evacuation of the development in the event of a bushfire should residents choose to evacuate.

63 It is apparent that the council will need to plan for the development of the precinct in accordance with it current zoning and ensure that similar interim measures to those suggested in this judgment for roadworks and widening are implemented as redevelopment occurs. The preparation of a s94 plan is one way to address the scope and extent of works ultimately required and provides for the payment of those works by persons carrying out the development that creates the demand for that infrastructure.

Conclusion

64 I am satisfied, having regard to the evidence addressing the relevant matters arising under ss 79BA and 79C of the Act and the contentions raised by the Council that the development application can be approved, subject to those conditions that are agreed by the parties and additional conditions that are required to reflect the works within the existing road reserve in accordance with my determination in paragraphs [60]-[61] above. Further consideration of conditions regarding waste management is also required however, on the basis of the documents in evidence, will not prevent consent being granted.

65 I propose to allow a period of time for the council to prepare conditions that address those matters raised in paragraphs [60]-[61] above and for the parties to discuss the remaining conditions in dispute. The matter is listed for mention at 4pm on Wednesday August 31, 2011.

Sue Morris

Commissioner of the Court

Decision last updated: 25 August 2011