Land and Environment Court New South Wales

• Medium Neutral Citation: Sternhell v Warringah Council [2014] NSWLEC 1168
• Hearing dates: 14-15 August 2014
• Decision date: 22 August 2014
• Jurisdiction: Class 1
• Before: Morris C

Decision

Appeal dismissed

• Catchwords: Development Application: subdivision; lot size; bushfire risk
• Legislation Cited: Warringah Local Environmental Plan 2011; Environmental Planning and Assessment Act 1979; Rural Fires Act 1997; State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
• Cases Cited: Botany Bay City Council v Premier Customs Service Pty Ltd [2009] NSWCA 226
• Texts Cited: Generic Bushland Reserves Plan of Management; Warringah Development Control Plan 2011; Warringah Pittwater Bushfire Risk Management Plan; 10/50 Vegetation Clearing Code of Practice for New South Wales; Planning for Bush Fire Protection; AS/NZS 2890.1:2004 Parking facilities - Off-street car parking
• Category: Principal judgment
• Parties: Roger Sternhell (Applicant); Warringah Council (Respondent)
• Representation: Mr J Cole; HWL Ebsworth Lawyers (Applicant); Mr S Patterson; Wilshire Webb Staunton Beattie Lawyers (Respondent)
• File Number(s): 10194 of 2014

Judgment

1 Mr Sternhell lodged Development Application DA 2013/1382 with Warringah Council on 15 November 2013 seeking consent to demolish existing structures and subdivide the site into four lots.

2 The council refused consent and Sternhell is appealing that decision. The main contentions in the case are whether the development standard for minimum lot size should be varied, if the proposed development results in an overdevelopment of the site and is consistent with the character of the area and whether the adjoining public reserve should be used for bushfire protection works.

The site and its context

3 The site is legally described as Lot 1 in Deposited Plan 8438 and is known as No 87 Lantana Avenue Wheeler Heights. It has a frontage of 20.055m, depth of 123.925m, area of 2481sqm and is located on the southern side of Lantana Avenue at the western extremity of its made section. The unmade road continues to the west through a council reserve, Lantana Avenue Reserve (Lot 108), part of which adjoins the site to the northwest of its frontage with Lantana Avenue. That reserve comprises a more open grassed area in the vicinity of the site with denser vegetation towards the gully area to the west. It is categorised as a Bushland Reserve under Warringah Council's Generic Bushland Reserves Plan of Management (PoM).

4 The site contains a single storey brick and tile dwelling house with detached garage and carport. A number of trees are also located on the site.

5 The War Veterans Retirement Village is located immediately opposite the site to its north with detached housing to the west fronting Ennerdale Crescent. To the east and south are detached houses, the majority of which are sited on battleaxe allotments created by subdivision of the original large lots.

Background and the proposal

6 The application proposes the subdivision of the land into four allotments, all accessed by a proposed 3.5m wide right-of-carriage way to be constructed along the site's western boundary. The application includes building envelope and footprint restrictions in accordance with detailed dwelling design plans provided. The precise dwelling detail however does not form part of the application. Those footprints and building envelopes would be registered on the title of the lots by way of a restriction to user.

7 The front lot, proposed Lot A would have a frontage of 16.49m, depth of 32.304/32.305m and site area of 532.7sqm. Proposed Lot B, to the immediate south of Lot A, comprises a battleaxe handle 1.1m wide along the western boundary of lot A continuing along the western boundary of Lot B. A passing bay is proposed within the lot and coincides with the proposed driveway to the garage of the dwelling. The passing bay results in a loss of area of approximately 12sqm. The dimensions of the lot excluding that handle are 16.49m x 32.31m, which results in an effective site area of 532.8sqm or, excluding the passing bay of 520.9sqm. Including the passing bay and the handle, Lot B would have an area of 603.9sqm.

8 Lot C has dimensions of 32.31m x 16.49m plus the access handle. The usable area is 532.8sqm and the area including the handle is 675.4sqm. Lot D is an irregular shaped allotment at the rear of the site with a 4m x 3.5m nib adjacent to the end of the proposed right-of-way. That nib is required for vehicular and pedestrian access to the lot. The lot has dimensions of 27m x 20.055m plus the nib, resulting in a site area of 555.5sqm or 667sqm including the 1.2m wide handle.

9 The plans provide for the removal of 13 trees within the driveway or building footprint area with the footprints designed to provide for the retention of the remaining 20 trees on the site and part of a rock outcrop. All of the trees to be retained are within 10m of the proposed building footprints.

The planning controls

10 The site is zoned R2 Low Density Residential under Warringah Local Environmental Plan 2011 (LEP). Clause 2.3 requires the consent authority to have regard to the zone objectives when determining a development application. The objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

11 Development consent is required for the proposed subdivision and demolition in accordance with the requirements of clauses 2.6(1) and 2.7 of the LEP.

12 Part 4 of the LEP contains Principal Development Standards and clause 4.1 is relevant to the application and is in the following form:

4.1 Minimum subdivision lot size

(1) The objectives of this clause are as follows:

(a) to protect residential character by providing for the subdivision of land that results in lots that are consistent with the pattern, size and configuration of existing lots in the locality,

(b) to promote a subdivision pattern that results in lots that are suitable for commercial and industrial development,

(c) to protect the integrity of land holding patterns in rural localities against fragmentation,

(d) to achieve low intensity of land use in localities of environmental significance,

(e) to provide for appropriate bush fire protection measures on land that has an interface to bushland,

(f) to protect and enhance existing remnant bushland,

(g) to retain and protect existing significant natural landscape features,

(h) to manage biodiversity,

(i) to provide for appropriate stormwater management and sewer infrastructure.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(3A) For the purposes of subclause (3), in calculating the size of a lot the area of any access corridor (including any right of carriageway, access way or other area that provides for vehicle access) is to be excluded, whether the access corridor is to be created or is in existence at the time of the application for development consent for the subdivision.

(4) This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.

13 A minimum lot size of 600sqm applies to the site and, in accordance with clause 4.1(3A), the area of any access corridor is excluded from the area calculations. As detailed above, all of the proposed lots are less than 600sqm so do not meet the requirements of clause 4.1(3).

14 Clause 4.6 provides for exceptions to development standards and the following sections are relevant considerations as the applicant has included a written objection to the development standard for minimum lot size:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Director-General has been obtained.

(5) In deciding whether to grant concurrence, the Director-General must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.

15 Warringah Development Control Plan 2011 (DCP) also applies to the site and contains controls that provide additional details to that contained in the LEP. Part C1 applies to subdivision and Part E7 to development on land adjoining public open space.

16 The development is Integrated Development for the purposes of Section 91 of the Environmental Planning and Assessment Act 1979 (EPAAct) due to the fact that it is identified as bushfire prone land under the council's Bush Fire Prone Land Map. In Warringah Pittwater Bushfire Risk Management Plan (WPBRMP), the site is located between asset areas 11 and 133 and is in proximity to an Asset Protection Zone that connects those areas.

17 In addition to a development consent, authorisation under section 100B of the Rural Fires Act 1997 (RFA) is required in respect of bush fire safety for subdivision of land that could lawfully be used for residential or rural residential purposes or development of land for special fire protection purposes. Section 100B is in the following terms:

100B Bush fire safety authorities

(1) The Commissioner may issue a bush fire safety authority for:

(a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or

(b) development of bush fire prone land for a special fire protection purpose.

(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.

(3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1).

(4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations.

(5) Development to which subsection (1) applies:

(a) does not include the carrying out of internal alterations to any building, and

(a1) does not include the carrying out of any development excluded from the operation of this section by the regulations, and

(b) is not complying development for the purposes of the Environmental Planning and Assessment Act 1979, despite any environmental planning instrument.

18 The application was referred to the Rural Fire Services (RFS) seeking the necessary approval however this was not obtained. The most recent advice received by the council from the RFS in relation to the approval was correspondence dated 19 February and contained behind Tab 4 of the Council's Bundle of Documents, Exhibit 1. That letter states in part:

The NSW Rural Fire Service has undertaken an assessment of the proposal and advises that the development will rely on the on-going vegetation management within the adjoining Council reserve located west of the site. It is considered that a minimum 20 metre inner protection area (IPA) immediately adjoining the western boundary of the site is necessary to meet the requirements of Planning for Bushfire Protection 2006. This is in addition to the existing level of maintenance.

In this regard the RFS is seeking confirmation from the Council that it is prepared to accept the on-going maintenance within the reserve. If agreed, a Bush Fire Safety Authority with conditions can be issued for the proposed subdivision.

19 The council has advised the applicant that it does not accept the need for the use of the land for the IPA and requires the subdivision to address all necessary bushfire protection works within the site.

20 As this issue remained outstanding at the commencement of the hearing, the applicant had lodged without prejudice correspondence to the council's legal representatives requesting consideration of an offer to obtain an easement for access to carry out vegetation management/asset protection works on the adjoining Lantana Avenue Reserve, Lot 108 DP 209117 (Tab 12, Exhibit B). Mr Patterson, for the council, advised the Court that the council would not be prepared to grant any easement over the reserve.

The issues

21 The contentions in the case were detailed in the Statement of Facts and Contentions filed with the Court on 14 May 2014. Following a conciliation conference before another Commissioner of the Court, the contentions were reduced with contentions 5, 10, 11 and 12 resolved through the provision of additional information.

22 The remaining contentions are overdevelopment, in particular the non-compliance with the minimum lot development standard; bushfire; landscaping; privacy and public interest. Those contentions regarding the natural rock outcrop and tree retention are capable of resolution through consent conditions.

The evidence

23 The hearing commenced on site with evidence heard from the owner of adjoining land No 28 Ennerdale Crescent and two community representatives. The neighbour did not object to the proposed subdivision and explained to the Court how he and his immediate neighbour to the west, mowed that portion of Lantana Reserve (Part of Lot 108) as an extension of their backyards with a star picket delineating the location where he stops maintenance and the contractors for the retirement village assume responsibility for the remainder of the unmade roadway. It was his evidence that the mowing had occurred for as long as they had occupied their dwellings and was conducted with council's knowledge and on only one occasion had the council undertaken any management of the area.

24 Ms J Marlow spoke of her concerns in relation to the impacts of the development on nearby bushland, the loss of trees from the site which she says forms part of a designated wildlife corridor that needs to be protected and enhance and is a foraging area for the Powerful Owl, a threatened species know to nest in the locality. Her other concern was the added sediment that could flow from the site impacting on the Narrabeen Lagoon.

25 Ms A Sharp spoke on behalf of the Friends of Narrabeen Lagoon Catchment and objected to the development due to its impact on the wildlife corridor, non-compliance with minimum lot size, need for landscaped open space within the lots, concern of the impacts of development permitted as exempt or complying development on any of the four lots that would add to the built form despite the proposed restriction to user, need to protect the rock outcrop, loss of trees due to proximity to proposed building footprints, impact of stormwater runoff on the adjoining reserve and downstream waterways including the Lagoon.

Bushfire

26 Expert evidence on Bushfire issues was heard from Mr T O'Toole for the applicant and Mr L Short for the council. Their expert report, Exhibit 2 and evidence provided during the hearing was particularly helpful to the Court.

27 They agree that the recently introduced NSW RFS publication 10/50 Vegetation Clearing Code of Practice for New South Wales which took effect on 1 August 2014 would permit the removal of all trees from the site if dwellings were constructed in accordance with the building footprints proposed.

28 It is also agreed that an Asset Protection Zone (APZ) is required under the provisions of Planning for Bush Fire Protection (BFBFP). Mr O'Toole had prepared a detailed analysis of the likely fire front within the adjoining public reserve including an assessment of transects taking into account survey details obtained on behalf of the applicant to determine slope characteristics. Mr Short had reviewed this assessment. The area of disagreement between the two experts is the appropriate classification of the predominant vegetation class within that area of the reserve immediately adjacent to the site. They agree that the area west of the RFS fire front is dry sclerophyll forest. Mr O'Toole has characterised the immediate area as a rainforest whereas Mr Short says that it is more characteristic of a wet sclerophyll forest. The difference between the two experts in their approach is the extent of the APZ that needs to be provided off site and whether the area would classify as a remnant.

29 Mr O'Toole says that the area would extend 6.2m into the reserve whereas Mr Short says that it would extend to 20m. The extent of the difference is shown on the plan provided as Exhibit K. The area of the APZ is contained within that section of the reserve that is currently maintained by the adjoining landowners and both experts agree that as the area was observed during the site view, no further maintenance regime would be required to meet the APZ requirements. The area would have to be continually maintained in that condition to ensure compliance.

Planning

30 Expert planning evidence was provided by Mr J Vescio for the applicant and Ms D Laidlaw for the council. Their joint report is Exhibit 3. They agree that the proposed lots meet the minium width, depth and building area requirements of the DCP, that a Lot Area Assessment plan prepared by Proust and Gardner (P&G Plan) provides an appropriate cadastral representation of the relevant context of the site and the locality in terms of identifying the subdivision pattern of the allotments between Lantana Avenue and Rose Avenue however Ms Laidlaw notes that the whole of the block bounded by Rose Avenue, Lantana Avenue and the rear boundaries of properties fronting Ennerdale Crescent and Veterans Parade is the more appropriate reference point since this whole block differs from the surrounding locality in terms of the predominance of battleaxe development compared to conventional lots as indicated by the zoning plan includes as Figure 1 in Exhibit 3. Mr Vescio says the area should extend to Veterans Parade.

31 The experts agree that within the area covered by the P&G Plan there are 21 lots that are less than 600sqm which represents approximately 29%. Ten of those lots are conventional lots facing Ennerdale Crescent. The inclusion of the lots fronting Veterans Parade would, according to Mr Vescio, add a further 15 conventional lots which he says are less than 600sqm however Ms Laidlaw has no evidence that this is the case and says those lots are not particularly relevant to the contentions because battleaxe subdivided lots raise different planning issues to conventional lots.

32 It is common ground that within the P&G Plan area all of the original lots except for the subject site have been subdivided at some stage to create 2-4 lots in a battle-axe arrangement of which two are 4 lot subdivisions (9%), two are 3.5 lots (9% aggregated over two allotments) and six are 3 lot (26%) subdivisions. Excluding the subject site, approximately 82% of the original lots are either two or three lot subdivisions.

33 It is also agreed that the site is surrounded by conventional lots to the west, by a two lot battleaxe division on the eastern side and a three lot battleaxe subdivision to the rear. In terms of describing generally the subdivision pattern, the predominant character is of battleaxe style subdivision of two and three lots.

34 Ms Laidlaw notes that the council officer's assessment report (Tab 6, Exhibit 1) states that the subdivisions that created more than three lots were approved prior to the current planning regime and the making of the LEP. Mr Vescio says there is no consistent rhythm in the existing subdivision pattern in the locality particularly with regard to lot sizes or alignments and that the "pattern" can be described as a random configuration of rectangular shaped battel-axe lots, two to four deep.

35 They do not agree on the manner in which the applicant has calculated the area of the lots. The differences between them are detailed in the table on Page 4 of Exhibit 3 with Ms Laidlaw referencing the provisions of clause 4.1(3A) of the LEP and the DCP requirements (C1 Subdivision) for the provision of passing bays within the battleaxe handle every 30 metres and says that these areas and the "nib" to Lot D would form part of the accessway or other area that provides for vehicle access and are excluded from the lot area. Accordingly, she says the lots sizes range from 517.7sqm to 543.6sqm, a variation of 9.4% to 15.8% from the 600sqm development standard.

36 Mr Vescio includes part of the passing bay in Lot B and excludes all others and the nib and prefers to apply the provisions of clause 3.2.2 of AS/NZS 2890.1:2004 Parking facilities - Off-street car parking that requires, where a driveway caters for 30 or more vehicles, passing opportunities at least every 30m. The length of driveway to Lot D is 92.918m and to the northern boundary of Lot C is 64.60m. Mr Vescio says only one passing bay is required and that it within Lot B, with informal use of the driveways that service the garages to Lots A and C also available if required. He says this is consistent with a recent subdivisions approved by the council at 73 Lantana Avenue. For that reason, Mr Vescio says the areas of the allotments are between 521sqm and 557.6sqm with the variation from the development standards being between 7% and 13.2%.

37 The experts agree that the council's contention of overdevelopment is the principal planning contention and that the suitability and acceptability of the proposal is whether the Clause 4.6 Objection to the minimum lot size development standard is supportable in the circumstances of the case. Mr Vescio prepared the written objection to that standard (Tab E, Exhibit 3) and concludes that the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development within the zone in which the development is proposed to be carried out and there are sufficient environmental planning grounds to justify infringing the development standard as it would still allow for the orderly and economic development of residential land while maintaining the local character. He considers that the development of the site with four dwellings of the size and shape proposed in the building envelope/footprint is a better outcome than a three lot subdivision with dwellings constructed under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP2008) as those dwellings could occupy a greater portion of the site, be higher, incorporate less parking and landscaped area and be constructed closer to boundaries.

38 Mr Vescio considers that if consent is granted in the circumstances it should contain a condition that the proposed covenants be imposed as this provides a degree of certainty about future development of the site. He relies on the fact that the adjacent reserve is maintained to a standard acceptable to act as an APZ and if the neighbours do not continue their current maintenance regime, the council has suggested it would add it to its mowing schedule of 10 cuts per year. He says that whether or not the site is subdivided into 2, 3 or 4 lots, the bushfire issue remains as the area affected by the APZ is the front lot which would be in existence in any of these scenarios and the location of a dwelling on that lot will always be in a similar position consistent with the prevailing alignment of buildings in the street.

39 Ms Laidlaw disagrees and says the objection to the development standards is not well founded because there are no special site circumstances that justify the variation sought. The site has conventional housing (lots with road frontage on one side) and a two lot subdivision on the other side with a three lot subdivision to the rear, with all of the adjoining battleaxe arrangements lots complying with the minimum lot size. The site adjoins a public reserve and includes bushfire prone land and the subdivision into four lots necessitates part of the adjoining public reserve to be managed in perpetuity as an APZ, contrary to the DCP control whereas a three lot subdivision would either avoid this imposition altogether or at least provide greater scope to minimise it. The application is not "at the margins" of compliance, all four lots are undersized and non compliant. The P&G Plan clearly show that the original lots have been subdivided into two or three lots and there are only two cases where four lots have been approved, both of which were under an earlier planning regime and not the LEP, a relatively recent plan. Approval of this application without proper justification of the development standard will inevitably give rise to other application requesting similar variation, noting that there are several large lots still remaining in the Wheeler Heights area.

40 In terms of the objectives of the development standard, Ms Laidlaw says those objectives are not met, particularly objectives a, d, e and f. She has reservations in relation to the proposed covenants and the ability to "opt out" of SEPP2008.

41 Ms Laidlaw says the proposed bamboo planting along the western side of the driveway is not appropriate, particularly adjacent to a reserve and whilst it will assist in softening the appearance of the driveway, there is no planting at all proposed on the front part of the site adjacent to Lantana Reserve nor does the extent of planting proposed address overlooking impacts from the two storey dwellings to the rear yards of those adjoining properties that front Ennerdale Crescent.

42 Mr Vescio says the proposed driveway is at the end of the street with minimal traffic and exposure and mitigated by the attention to the surface treatment that includes a break of materials and a combination of pebble with undulation and landscape treatment either side of the driveway including a green fence wall treatment. He says the bamboo species is entirely appropriate in the proposed location as it can grow within confined areas of only 150mm width and can achieve a height of 3m without encroaching within the driveway width and sufficiently addresses privacy concerns. He concludes the proposed driveway treatment is superior to that observed in the locality.

Conclusion and findings

43 For consent to be granted, I must be satisfied that the written request from the applicant to vary the development standard for minimum lot size adequately addresses the matters required to be demonstrated in Clause 4.6(3) of the LEP, that is, that compliance with the the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. In addition, I must be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. This is a condition precedent to the exercise of statutory power.

44 Having regard to the evidence, I am not satisfied that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case or there are sufficient environmental planning grounds to justify the lot sizes sought. That is because I do not consider the application is consistent with the objectives of the development standard. I accept that the development would satisfy the objectives of the R2 zone.

45 It is common ground that 82% of the original lots in the vicinity of the site have been subdivided into 2 or 3 lots with only two instances where consent has been granted for four lots, both prior to the making of the LEP. I do not consider that it is necessary for all of the lot boundaries to be in alignment for the pattern, size and configuration of the lots in the locality to be consistent. What is evident is that where lots have been subdivided, the majority comply with the minimum lot size, all are of battleaxe configuration and where only two lots have been created, and the majority of those rear lots are capable of further subdivision to be compliant with the development standard and pattern of development. I place little weight on the shape and size of the lots fronting Veterans Parade and Ennerdale Crescent due to the fact that they appear to form part of a separate original subdivision and are conventional lots with street frontage rather than battleaxe lots. They were also approved a number of years prior to the LEP, consistent with the neighbour's evidence who indicated he had lived at the site for some 30 plus years.

46 For these reasons, I do not consider that subdivision of the site into four lots is consistent with the pattern, size and configuration of existing lots in the locality.

47 Objectives b, c, d and i are not relevant to the case. Objective e requires that appropriate bush fire protection measures are provided on land that has an interface to bushland. The site has an interface with bushland, that being Lantana Avenue Reserve, a reserve identified within the council's Generic Bushland Reserve Plan of Management. The proposed development does not make provision on the land to which the application relates but rather relies on the use of an adjoining public reserve for that purpose. The fact that the area required may currently be mowed by neighbours to a state that would meet the RFS requirements of an APZ does not mean that the objective is achieved. It would be possible to subdivide the land in a different manner and achieve the objective with the bushfire protection measures provided within the land. Whilst I accept that a four lot subdivision would not be possible, I consider the fact that the APZ cannot be contained within the site as a reason not to depart from the development standard for minimum lot size.

48 Whilst relevant to the application, objectives f and g could be better addressed through the redesign of the subdivision allowing for retention of existing trees 10m clear of any dwelling to protect the trees that are contiguous to the bushland reserve so as to retain the natural landscape features on the site. There is no consistent building line along Lantana Avenue so 3 lots would provide for a larger front lot, greater setback and contain the APZ on the site. I have bot been satisfied that there are sufficient environmental planning grounds to justify contravening the development standard.

49 Having found that the objection to the development standard is not well founded, the precondition to the grant of consent is not met and the application must be refused.

50 If I am wrong in the conclusion that I have reached on the jurisdictional test arising under clause 4.6 of the LEP, I should proceed to a merit assessment so that, if there were to be a successful appeal on my jurisdictional assessment, the parties could consider the outcome of that merit assessment to assist in ensuring that there could be a just, quick and cheap resolution of the matters as might arise on the remitter so as to facilitate achievement of the objectives of s 56 of the Civil Procedure Act 2005.

51 In relation to the manner in which the areas of the allotments have been calculated, I do not consider that it is appropriate to exclude the nib at the tip of proposed Lot D. That nib is required to provide for vehicle access to the allotment and therefore is excluded from the calculation consistent with the terms of clause 4.1(3A) of the LEP.

52 Mr Vescio prefers to apply the provisions of the Australian Standard for passing bays rather than the DCP. Whilst I accept that the standard is a relevant planning consideration, the DCP should be a focal point of my assessment. Consistent with the decision of the Court of Appeal in Botany Bay City Council v Premier Customs Service Pty Ltd [2009] NSWCA 226, it is not appropriate to apply an alternate view as to the appropriate general policy rather than that embodied in the DCP. For the laybacks adjacent to the proposed garages to be taken into consideration as passing bays, they too would be deleted from the site area calculations because they are required for vehicle access.

53 Accordingly, I accept the areas as calculated by Ms Laidlaw.

54 I agree with the experts that the proposed building envelope and footprints to be protected by covenants would provide certainty in terms of built form and that form would be satisfactory however, I have not been satisfied that the provisions of SEPP2008 would not override those covenants. The parties had requested that if the appeal turned on this issue they be provided an opportunity to further address it however, given my decision in relation to the jurisdictional issue, this is not required.

55 The primary difference in the evidence of the Bushfire experts is the extent to which an APZ is required within the adjoining reserve. They both agree that the location of the proposed building footprint on proposed Lot A necessitates the APZ to extend beyond the site. Mr O'Toole says the area only extends some 6.2m into the reserve and occupies an area of approximately 57sqm. Mr Short says the zone extends 20m into the reserve and therefore occupies a considerably larger portion of the reserve.

56 Appendix 2 of PFBFP includes assistance in determining APZs and establishes a procedure to be followed. Mr O'Toole applies that procedure to his assessment, adopting the rainforest category. Both experts agreed that ground truthing the vegetation is preferred over using vegetation databases however they have drawn different conclusions. I have particular regard to the provisions of A2.3(a) of Appendix 2 which states: Where a mix of vegetation types exist the type providing the greater hazard is said to predominate......Consideration is to be given to the understorey as this may contain the greater mass of fuels.

57 Having regard to the evidence and the site view, I consider that the most eastern portion of the reserve does not precisely fit either the definition of Rainforest or that of Wet Sclerophyll forest. That is because the area does not comprise a close and continuous tree canopy (rainforest) and whilst its canopy is open, it is not dominated by tall eucalypt species. The understorey conditions are common to both. For that reason, as required by the procedure, the category of greater hazard should be applied and therefore an APZ of 20m would be required to extend within the council reserve.

58 I accept the evidence of Mr Short that the reserve is not a remnant as it is appropriate to take into account the whole of the reserve, not just that portion required for the APZ.

59 Having regard to the provisions of PFBFP, I note that the general principles of the document include that the bush fire protection measures are to be contained within the overall development and not on adjoining lands, other than in exceptional circumstances. It also recognises that consideration of such measures are most appropriate at subdivision and construction stages. The exceptional circumstances for APZ are detailed at Part 3.3 of the document and for those circumstances to apply, the following principles should be demonstrated:

• The existing form of development will obtain a better bush fire risk outcome than if the development did not proceed (eg through increased construction standards);
• The building line should be no closer to the hazard than neighbouring properties;
• The extensions should be no closer to the hazard than the existing building footprint;
• An upgrade of existing facilities may be required; and the proposal is an infill arrangement and site constraints do not allow APZ requirements to be met.

It goes on to say an increase in residential densities is not, by itself, considered an exceptional circumstance.

60 Consideration is also given in PFBFP of the use of adjoining land for APZs. On page 13 it states:

Easements should not be considered where the adjoining land is used for a public purpose, where vegetation management is not likely or cannot be legally granted (eg National Park, council bushland reserve, SEPP 14 or SEPP 26, critical habitat). Existing easements for power and other services will be considered on their merits.

61 I am not satisfied that the fact that the reserve in the location of the necessary APZ is currently mowed by owners of adjoining land is an exceptional circumstance for allowing the APZ to extend onto council land. Whilst I accept that the council has some form of obligation to carry out works required under the WPBRMP, it is clear from the PoM that the area is a medium priority in terms of budget consideration and therefore no guarantee can be given that funds will be available to maintain the area as the APZ by the council.

62 Nor do I consider, given the council's planning documents and the PFBFP publication, that it is appropriate to grant an easement to ensure that the APZ is maintained for the life of the development. The development is capable of providing the requisite APZ within the site and that should occur even if that means that there are less lots created.

63 The council's planning documents are consistent in its case that the site must accommodate the necessary bushfire protection measures. I have addressed the objective of the minimum allotment size and determined that standard should not be varied. Part E7 of the DCP provides specific controls for development on land adjoining public open space and has the following objectives:

• To protect and preserve bushland adjoining parks, bushland reserves and other public open spaces.
• To ensure that development responds to its adjacent surroundings to preserve and enhance the natural qualities of the environment.
• Development on land adjoining open space is to complement the landscape character and public use and enjoyment of the adjoining parks, bushland reserves and other public open spaces.

64 The requirements of the clause seek to:

(1) Development on land adjoining public open space is to complement the landscape character and public use and enjoyment of the adjoining parks, bushland reserves and other public open spaces.

(2) Public access to public open space is to be maximised.

(3) Buildings are to be located to provide an outlook to public open space, without appearing to privatise that space.

(4) Development is to provide a visual transition between open space, bushland reserves or other public spaces and buildings, including avoiding abutting public open space with back fences.

(5) Development is to protect views to and from public open space.

(6) Development is to provide buffers for bushfire protection on private land, not on public land.

(7) If the adjoining parks, bushland reserves or public open space contain bushland, development is not to threaten the protection or preservation of the bushland.

(8) Development should be designed to maximise opportunities for casual surveillance of the public open space.

(9) Development is to utilise landscaping or existing landscape elements to screen development.

65 The proposal is inconsistent with the council's planning controls in relation to the use of public land for the private purpose of the APZ. It does not complement the landscape character and public use and enjoyment of the adjoining bushland reserve, the area currently mowed by neighbours and proposed to be the subject of the applicant's easement privatises that space and the driveway location does not provide a visual transition between the bushland reserve and buildings. Importantly, it does not provide buffers for bushfire protection on private land but relies on public land. It has been designed to maximise opportunities for casual surveillance of the reserve but does not utilise landscaping or existing landscape elements to screen the development.

66 For these reasons, the application does not warrant consent on a merit assessment, even when regard is had to the fact that the owners of adjoining property currently manage part of the reserve.

67 The Orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application DA 2013/1382 for demolition of existing structures and subdivision of Lot 1 in Deposited Plan 8438, No 87 Lantana Avenue Wheeler Heights into four lots is refused consent.

(3) The exhibits, other than exhibits A, H and K, are returned.

______________________

Sue Morris

Commissioner of the Court

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Decision last updated: 22 August 2014