Land and Environment Court New South Wales

• Medium Neutral Citation: Urban Link Pty Limited v Lane Cove Council [2011] NSWLEC 1279
• Hearing dates: 25, 26 & 31 August 2011
• Decision date: 27 September 2011
• Jurisdiction: Class 1
• Before: Hussey C

Decision

Appeal upheld, development consent granted subject to conditions

• Catchwords: Development application - capacity of road system to cope with traffic in a bushfire emergency.
• Legislation Cited: Environmental Planning and Assessment Act 1979; Lane Cove Local Environmental Plan 2009
• Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; 138 LGERA 237
• Category: Principal judgment
• Parties: Urban Link Pty Limited (Applicant); Lane Cove Council (Respondent)
• Representation: Ms S Duggan SC - Barrister (Applicant); Mr A Seton - Solicitor (Respondent); Gadens Lawyers (Applicant); Marsdens Law Group (Respondent)
• File Number(s): 10431 of 2011

Judgment

Background

1 This appeal was lodged against council's refusal of a development application for a four storey residential flat building (RFB) containing 46 dwellings over basement parking for 80 vehicles, located at 532 - 534 Mowbray Road with connection to 72 - 74 Gordon Crescent, Lane Cove.

2 The site is located within a residential precinct 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 Department of Planning & Infrastructure (DPI) 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 Environmental Planning and Assessment Act 1979 .

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.

5 Another matter referred to in the appeal concerns the Urbanhorizon's " Lane Cove Bushfire Accessibility " report dated March 2011. This was commissioned by the DPI to review the existing road infrastructure in the precinct for its ability to cater for vehicular movement during a bushfire, resulting from the planned increase in density of the area.

6 The review found that there would likely be an increase in the order of 1200 - 1500 potential dwellings, which could be accomodated subject to some road improvements. They include the option of widening perimeter roads such as Gordon Crescent to an 8 m carriageway. The report also noted council's preference for a "comprehensive traffic study" and suggested that this could be best achieved as part of council's update of their Displan. This could incorporate any changes to government policy, account for take up rates of development and any appropriate s 94 contribution plans.

The site

7 The site comprises Lot 2A DP 400225, Lot 3A DP 396637 and Lot 14 and 15 DP 27911. It is situated on the southern side of Mowbray Road with a 36.58 m frontage and it extends through to Gordon Crescent where it has a 43.125 m frontage. The total site area is 3110.58 sq m. There is a fall of approximately 17.8 m from Mowbray Road to Gordon Crescent.

8 There are four existing dwelling houses on the site that are to be demolished. There is a drainage easement through the site.

9 The locality comprises a four storey brick RFB to the east of the site with frontage to Mowbray Road and a two storey dwelling adjoining in Gordon Crescent. Other dwelling houses adjoin the western boundaries. To the south of Gordon Crescent is a bushland area, known as Batten Reserve.

The proposal

10 This proposal involves the demolition of the four existing houses and the construction of a four storey residential flat building containing 46 dwellings. The unit mix is:

• 8 x 1 bedrooms,
• 35 x 2 bedrooms,
• 3 x 3 bedrooms.

11 The development profile steps down along the contours from Mowbray Road to Gordon Crescent. It includes basement parking for 80 vehicles, which access the site via Gordon Crescent. The proposal also includes the provision of appropriate landscaping.

Planning controls

12 The primary control in this matter is the Lane Cove Local Environmental Plan 2009 ( the LEP ) 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.

13 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.

14 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).

15 The other relevant controls identified for the appeal include:

• Lane Cove Development Control Plan 2010;
• State Environment Planning Policy No 19 - Bushland in Urban Areas
• State Environment Planning Policy 55 - Remediation of Land.
• State Environment Planning Policy No 65 - Design Quality of Residential Flat Development;
• State Environment Planning Policy - (Building Sustainability Index) 2004;
• Planning for Bushfire Protection 2006 (PBP).

The evidence

16 Detailed evidence in this matter was presented in the form of a joint report by:

Mr A Darroch	applicant's planning consultant
Mr M Bridgman	council's traffic consultant
Dr D Wotherspoon	council's consultant for ecology and bushfire issues
Mr C Hazell	applicant's traffic consultant
Mr W Tucker	applicant's bushfire consultant

17 Mr L Short, the Rural Fire Service - Group Manager Community Resilience, also gave oral evidence, in addition to his correspondence with council. A number of residents also expressed objections to the development and these have been considered along with written objection contained in council's bundle of documents.

18 Apart from this, the development application has been assessed and considered by Council and the Joint Regional Planning Panel (JRPP), who refused the application predominantly on the basis that:

"in order to approve development in the Mowbray Road Precinct, the Panel needs credible independent opinion that provides confidence that the roads in the Precinct are able to cope with likely evacuation traffic in a bush fire emergency after the precinct is developed under the current zoning".

Planning

19 The applicant responded to the sole contention by firstly engaging Mr Darroch to assess the potential increase in population density for this Mowbray Road Precinct. From this, Mr Hazell used the population projections to model future traffic flows, including inputs from Mr Tucker regarding various evacuation scenarios.

20 Accordingly, Mr Darroch considered the following matters within the precinct:

• The effect of bush fire constraints, particularly any likely restrictions on land being designated for asset protection zones.
• Any topographical constraints, particularly the slope.
• Existing levels of development (and ownership) patterns that could influence future development, particularly the reduced likelihood of development of the existing RFBs in the precinct.

21 To assess the bush fire constraints , Mr Darroch referred to a Position Paper by the bush fire experts Mr S McMonnies and Mr W Tucker, which responded to the provisions of Planning for Bushfire Protection 2006 . From this the required Asset Protection Zone (APZ) is 25 m consisting of a 15 m Inner Protection Zone and a 10 m Outer Protection Zone.

22 An analysis of the vegetation structure, vegetation width and slope together with detailed site investigation and ground truthing was also undertaken to determine the required asset protection zones for the various properties in Gordon Crescent, Kullah Parade, Pinaroo Place and Merinda Street, which ranged from 25 m to 50 m depending on the slope and vegetation composition. These APZ's were then mapped on the precinct topographic map showing that significant areas of the rezoned land would be restricted from residential development.

23 The planning constraints for the precinct were examined by consideration of the total number of separate allotments (196) in the R4 Precinct. From this a number of existing strata plan sites were identified and assumed to be unlikely to be redeveloped.

24 By superimposing the APZs and the other constrained land (e.g. existing reserves) on the rezoned area, Mr Darroch estimates that the remaining area of developable land is in the order of 78,250 sq m. Assuming then that this area could be fully developed at the maximum density of 2.1:1, this would potentially yield 164,325 sq m of gross floor area (GFA), resulting in a maximum yield of about 2700 new dwellings.

25 However Mr Darroch then says that it is reasonable to assume that some 10% - 15% of the GFA would be consumed by access, lobbies and communal areas (i.e. efficiency allowance), which would reduce the development potential to 147,892 sq m. Therefore on the highest yield scenario of 2 bedrooms @ 100 sq m, the result would be about 1478 dwellings. However he says that allowance should also be made for the 119 (176 dwellings less 57 constrained) lost in the redevelopment.

26 Consequently, he concludes that the overall development in the precinct would provide around 1359 new dwellings as a maximum. Mr Darroch then compares this with the predicted yield of 1200 - 1500 estimated in the Urbanhorizon's accessibility report. In terms of the traffic issue he notes, that a significant consideration is that 35% or over 400 of these dwellings do not rely on Gordon Crescent or Kullah Parade but have frontage to Mowbray Road or Mindarie Street with a choice of travel direction.

27 However, he was challenged on this overall assessment because Mr Bridgman's instructions from council officers that the potential yield would be 2357 dwellings, based on a review of the (8?) actually seven DA's received to date, which supposedly indicates a dwelling yield of 1/47 sq m of site. This method consequently equates to a developable area of 110,779 sq m.

28 Mr Darroch reviewed this approach calculating the unit density per site area (i.e. unit/sq m). For the seven applications, the unit density varies from 1/44.9 sq m to 1/67.6 sq m. In a cumulative sense, the total site area of the 7 DA's is 17,022 sq m, which yields 333 units, resulting in a density of 1/51.1 sq m. Mr Darroch notes that this does not accord with council's 1/47 sq m instructions. Consequently, he calculates that this approach could result in 2167 dwellings in the precinct based on a council's developable area of 110,779 sq m, not the 2357 figure.

29 But Mr Darroch then says that allowance should be made for the allotments sterilised by development, which would result in his assessment of a unit density in the order of 1/85 sq m.

30 Therefore, applying this 1/85 sq m rate to the precinct results in:

Total area of precinct by title (allowing 15% efficiency)	139,072 sq m.
Less strata area by title	22,661 sq m
Developable area by title ignoring bushfire constraints	116,441 sq m
Apply yield of 1/85 sq m	1369 dwellings
Assuming likely unit density of 1.6:1 and 10% efficiency (but ignoring bushfire constraints)	1676 dwellings

31 Apart from this, in his analysis, Mr Darroch notes that the subject development achieves an FSR of 1.5:1 in order to comply with the remaining development standards and controls. He observes that this is consistent with the other submitted DA's where the actual FSRs are in the range of 1.5:1 to 1.6:1, which is well below the maximum allowance of 2.1:1. Therefore, applying this actual rate together with an 85% efficiency allowance and assuming 2 bedroom units @ 100 sq m, the yield would be 945 dwellings, which includes an allowance of 119 for the dwellings demolished.

32 In summary then, Mr Darroch acknowledged that a number of development scenarios could occur depending on various development decisions, including ease of site acquisition and site development suitability. He concludes that for traffic modelling purposes the following would be appropriate:

• High yield 1500 new dwellings,
• Middle 1200 new dwellings,
• Low 945 new dwellings.

33 In terms of the traffic modelling, he says these conclusions should be considered in the context of the precinct where the number of dwellings most exposed to bush risk fire that rely on Gordon and Kullah Parade is in the order of 40% of the total, which he estimates as 380 dwellings.

Traffic

34 Mr Hazell prepared a Position Paper in response to the identified traffic contention. In it he refers to the evidence of Mr Darroch regarding the potential development yield of 945 to 1500 dwellings in the precinct and inputted the high yield of 1500 into the traffic model to estimate the traffic movements, involving the following criteria and assumptions:

• Utilisation of the traffic generation rates in the RTA's 'Guide to Traffic Generating Developments, Section 3 - Landuse Traffic Generation' of October 2002.
• Collection of existing levels of traffic activity in the area, including independent surveys and peak hour counts at the intersections of:
• Mowbray Road West with Willandra Street, Kullah Parade and Girraween Avenue,
• Centennial Avenue and Elizabeth Parade,
• Elizabeth Parade and Gordon Crescent,
• Willandra and Mindarie Street,
• Kullah Parade and Mindarie Street,
• Girraween and Gordon Crescent.

35 Based on a development density of 1500 dwellings and the assumed retention of 57 existing dwellings, the estimated traffic generation is in the order of 484 vehicle trips in the peak hours. By reference to the RTA ' Guide ' in consideration of the Level of Service (LOS), Degree of Saturation (DS) and Average Vehicle Delay (AVD), the model for 1500 ultimately indicates a very good level of service 'A' for the roads in the precinct. In addition to this, Mr Hazell modelled the intersections using the SIDRA model, which also resulted in a satisfactory outcome:

36 Mr Hazell concludes that the road network serving the subject Lane Cove Precinct is sufficient to serve the potential redevelopment for the R4 zoning without further improvements. Furthermore, after assessing the widths of the existing access roads, he says that in an emergency situation, the SES and Police have power to control and move traffic and he therefore considers the existing minimum road width of 7.3 m is sufficient for emergency vehicles to pass. However two way flows could be improved by imposing parking restrictions on one side.

37 In response to the issue of evacuating vehicle access, Mr Hazell again notes that in an emergency situation the SES and Police have power to control traffic movements, particularly at intersections. However he also notes that it is RFS policy to " leave early or stay and defend" and in these circumstances considers it is unlikely there should be a mass evacuation shortly before the impact of any fire front.

38 Mr Hazell acknowledged that there is a lack of reliable data on the behaviour of residents in bush fire situations. However he considers an appropriate reference is the Victorian Bushfires Royal Commission, which apparently found in that situation:

• 56% of residents stayed at their property.
• Of those that left before the fire, 32% left the area more than 2 hours before the fire arrived.
• The remaining 23% left in the last hour.
• Of these, 8.8% of these decided to leave when the fire hit.

39 Applying these results to the subject situation, then arrangements for the orderly departure of residents would be required for approximately 14.2%.

40 Notwithstanding this, Mr Hazell says that if there was a fire event in the Lane Cove Precinct and the same evacuation percentages repeated, then 23% of the (upper estimate) of 1557 dwellings would mean the occupants of 358 dwellings would leave in the last hour before the fire. If this departure was by car, it would still be less than the estimated peak hour traffic generation rate of the area (434 trips), even though they would be leaving the area.

41 Accordingly, he modelled the intersections on the following basis;

	Table 1 - SIDRA ANALYSIS - Forecast operation of key intersections during a fire event with 23% of 1500 dwellings in AM Peak (I.e. 358 vehicles).
	Mowbray Rd W and Willandra St	Mowbray Rd W and Kullah Pde	Mowbray Rd W and Girraween Ave	Centennial Ave and Elizabeth Pde
Level of Service	B	B	B	B
Degree of Saturation	0.370	0.349	0.378	0.186
Average delay per movement in side street in sec/veh and 95th percentile queue length in side street
Left turn	15.9s (1)	19.4s (1.3)	10.8s (0.3)	11.7s (0.3)
Through	n/a	18.2s (1.3)	n/a	n/a
Right turn	16.2s (1)	19.5s (1.3)	24.3s (0.9)	22s (0.8)
Total Average Delay (sec/veh)	1.4s	2.5s	1.2s	2.5s

	Table 2 - SIDRA ANALYSIS - Forecast operation of key intersections during a fire event with 50% of 1500 dwellings in AM Peak (I.e. 750 vehicles).
	Mowbray Rd W and Willandra St	Mowbray Rd W and Kullah Pde	Mowbray Rd W and Girraween Ave	Centennial Ave and Elizabeth Pde
Level of Service	B	B	C	B
Degree of Saturation	0.486	0.599	0.452	0.388
Average delay per movement in side street in sec/veh and 95th percentile queue length in side street
Left turn	19.2s (2.8)	25.0s (3.6)	11.0s (2.1)	11.9s (0.7)
Through	n/a	23.8s (3.6)	n/a	n/a
Right turn	19.5s (2.8)	25.1s (3.6)	28.9s (2.1)	25.4s (1.9)
Total Average Delay (sec/veh)	2.8s	4.3s	2.5s	3.7s

42 In addition to this, he also modelled the council's estimate of 2357:

	Table 3 - SIDRA ANALYSIS - Forecast operation of key intersections during a fire event with 50% of 2357 dwellings in AM Peak (I.e. 1179 vehicles).
	Mowbray Rd W and Willandra St	Mowbray Rd W and Kullah Pde	Mowbray Rd W and Girraween Ave	Centennial Ave and Elizabeth Pde
Level of Service	B	D	C	C
Degree of Saturation	0.766	0.933	0.708	0.607
Average delay per movement in side street in sec/veh and 95th percentile queue length in side street
Left turn	27.2s (6.6)	53.5s (12.6)	11.6s (1.1)	12.7s (1.2)
Through	n/a	52.2s (12.6)	n/a	n/a
Right turn	27.5s (6.6)	53.6s (12.6)	37.8s (4)	30.5s (3.5)
Total Average Delay (sec/veh)	5.3	10.8	4.5	5.3

43 From this, he concludes that:

• All the roads in the subject precinct will operate at a satisfactory LOS with the forecast peak flows during a fire event when the area is fully developed.
• This modelling is based on the morning traffic peak but in the more likelihood of an afternoon fire, the traffic departures would be better.
• The roads and intersections serving the R4 zone in this precinct can adequately cater for the estimated departure of traffic generated, 1 hour prior to the fire event arriving.

44 Mr Hazell's methodology was discussed in joint conferencing with Mr Bridgman. Insofar as Mr Bridgman expressed some reservations about the extrapolation of the Victorian bush fire information, some uncertainties about evacuee behaviour and also suggested options for enhancing the safe access from the precinct, nevertheless the traffic experts agreed that:

(a) In the event of an evacuation emergency each dwelling that evacuates is likely to generate 1 vehicle trip in the critical one hour period.

(b) Based on a. future infill development level of +1500 new dwellings and up to 23% of dwellings generating one evacuation trip in the critical one hour AM/PM and Saturday/Sunday, see Table 1, we agree that the area has acceptable traffic service levels (LOS) delay times and intersection queue lengths.

(c) Based on a future infill development level of +1500 new dwellings and up 50% of dwellings generating one evacuation trip in the critical one hour AM/PM and Saturday/Sunday, see Table 2, we agree that the area has acceptable traffic service levels (LOS) delay times and intersection queue lengths.

(d) Based on a future infill development level of + 2,357 new dwellings and up 50% of dwellings generating one evacuation trip i.e. 1179 vehicles in the critical one hour AM/PM and Saturday/Sunday, see Tables 3 and 4, we agree that the area 1 intersection (Mowbray Road (W) and Kullah Parade) is at capacity in the AM peak hour.

45 It appears to me that on these scenarios, there should be reasonable level of traffic service and safety in the precinct when it is substantially developed. This outcome then satisfactorily addresses the sole contention.

Bush fire

46 Dr Wotherspoon and Mr Tucker assessed and agreed on certain details of the development including:

• The land is mapped a s Category 1 on the Lane Cove Council Bushfire Prone Land Map.
• A fire is likely to be i gnited by either arson or spotting from a wildfire in nearby bushla n d . They note there is recorded history of a fire of 0 . 6 ha during the 1994 fires and anecdotal evidence of an additional spot fire within the western area of the Reserve.
• The proposal complies with asset protection zone requirement under PBP 2006.
• The degree of threat posed to this development is adequately addressed by the specified protection measures.
• The design is required to comply with relevant BCA requirements including construction to BAL40 for the south east and west facades and BAL29 for the northern faade as per the letter from RFS dated 8 April 2011. The design is capable of complying with these conditions.
• An emergency management plan should be required to be prepared as part of the consent prior to occupancy of the building (PBP 2006, Section 4.2.7). In addition, each resident should be encouraged to prepare their own "Bushfire Survival Plan".
• The proposed access within the subject site complies with the requirements for PBP 2006.

47 Insofar as the proposal does not involve any works in Batten Reserve, the experts agree that the reserve is subject to the provisions of the Hunters Hill, Ryde, Lane Cove, Willoughby Bushfire Risk Management Plan and the fire risks involve:

(i) Lane Cove Municipality is considered as " low risk " under the BFRMP.

(ii) Batten Reserve is mapped as a bushfire hazard Land Management Zone and Strategic Fire Advantage Zone .

(iii) Land Management Zone objectives include " to undertake mosaic burning".

(iv) Strategic Fire Advantage Zone characteristics include " Management practices should aim to achieve mosaic fuel reduction patterns so that the majority of the SFAZ has an OFH (Overall Fuel Hazard) of less than high" (8-12 tonnes/ha).

(v) Fire threshold values for forest such as in Batten Reserve include Dry Sclerophyll Fo r est 7 - 30 years and Rainforest as fire exclusion (page 23) .

(vi) Batten Reserve is not able to be used as an asset protection zone for the purposes of gaining a development consent . This proposal does not rely on any asset protection zones w i thin Batten Reserve. Land Management Zone management does not constitute asset protection zone works .

(vii) The red hatching around Batten Reserve i dentifies assets at risk and does not e x tend across the subject land .

48 Notwithstanding this, Dr Wotherspoon is dissatisfied with the proposal because Gordon Crescent and other internal roads are less than the 8m width stated in PBP, which he considers could impact of the ability to access and fight any fires. In this regard he considers there should be an assessment of the cumulative effect of traffic and fire fighting capacity that shows the ability of the roads in the precinct to cope with likely evacuation and relocation traffic as well as emergency services traffic.

49 Against this, Mr Tucker says that PBP allows for two methods of achieving compliance, firstly by a performance based approach or secondly by meeting the prescribed acceptable solution . Accordingly he refers to the traffic consultant's report where they agree that under a performance based approach and with no parking on one side of Gordon Crescent, the existing road width is sufficient to allow passing at low speeds, facilitating reasonable fire truck access.

50 The other significant issue discussed concerned the likely evacuation responses. As noted, in the absence of accepted and reliable local data on this matter, Mr Tucker prepared a detailed position paper dealing with this issue based on the Victorian bush fire experience.

51 Accordingly, I consider his following comments of interest in the current matter:

A number of comments on development in this precinct have questioned evacuation in a bushfire emergency. The term evacuation often infers the rapid movement of persons in times of a direct emergency where little time is available. In terms of bushfire emergencies this action is against all current teachings and policies. Where I refer to evacuation within this dialogue I draw a distinction between the coordinated relocation of residents by emergency services ( evacuation ) and not rushed late and last minute movement of people during or at times of imminent bushfire impact (late evacuation) . The term relocation of occupants occurs where there is adequate time to calmly prepare and remove occupants to predetermined safer locations.

Considerable review and critique has been documented on human behaviour, fire services response, evacuation attempts, and the "Stay or Go" policy over many years and by many agencies. Most recently these matters have been significantly reviewed during and following the Royal Commission into Victoria's 2009 bushfires. Without oversimplifying my research and these detailed reports the general thread is that last minute late evacuation is dangerous, not recommended, and not the promoted policy or procedure of fire authorities.

"Here are some deadly facts about evacuation: The majority of people who lose their lives in bushfire do so directly because of poorly timed and poorly planned last-minute evacuation. The problem with evacuation and bushfires is that it is a paradox: the only guaranteed, and the only RIGHT time to evacuate is to go when the fire is so mild that there is little or no danger." (http://www.bushfireinfo.com) .

"Last-minute evacuation is dangerous; it is better for people to remain with adequately prepared homes than to be relocated; and large-scale evacuations are problematic" (2009 Victorian Bushfires Royal Commission-Interim Report).

Last minute evacuation in front of a fire is likely to lead to loss of life. Predestination evacuation in a smoke and ember filled environment is dangerous. The only safe place to stay if there is the sudden and rushed onset of a wildfire is in your home. Should building be ignited then relocation outside the dwelling after a fire front passes may be considered.

52 Associated with this, Mr Tucker addresses "Pre Incident Planning" and says:

Policies have been revised to advocate Leave early or stay and defend, and in NSW the states fire weather prediction scales have been overhauled to include a Catastrophic forecast rating. On days of 'Catastrophic' fire weather with a Fire Danger Index in excess of 100, bushfires are documented by the NSW Rural Fire Service as likely to be uncontrollable, unpredictable and very fast moving.

The whole idea of forecasting a Catastrophic day has not been for building codes or planning policies to design and construct to higher levels. It is targeted as a means to forewarn individuals and communities of predicted adverse bushfire conditions in time for them to implement their own Bushfire Emergency Management Plans. The Catastrophic rating has been implemented with renewed vigour on encouraging residents in bushfire prone areas to have and practice their own Bushfire Emergency Management Plans.

Strong emphasis in the Bushfire Emergency Management Plans should consider relocation the day before or early the morning of a forecasted FDI over 100, especially if fire activity is already being experience in the local area or surrounding suburbs. Public education and awareness by fire authorities is centred upon the stay or leave early options. Only the fit, capable, and mentally prepared people should remain with well-prepared properties.

53 Consequently, he supports the subject proposal on the following basis:

The building will be constructed to the bushfire requirements specified within the BCA and BAL 40 under AS 3959 - 2009 (as recommended by the Rural Fire Service), resulting in "well prepared building and property".

Onsite access, services and local water supply comply with the requirements of Planning for Bushfire Protection 2006 (this is not in contention).

The building will have internal fire separation (compartmentisation) and even if one or more units are compromised there will remain safe refuges inside the units until the fire passes and the outside area becomes tenable.

Strata managed development has advantages over sole occupancy subdivision in that occupants can be regularly informed and educated, Bushfire Emergency Management Plans can be enforced and regularly reviewed, training and evacuation drills can take place and the grounds/landscaping management can be formalised by a plan of management including regular inspections for compliance with Asset Protection Zone requirements.

54 Notwithstanding this, Dr Wotherspoon maintains his concern that PBP in s4.2.7 nevertheless contemplates that evacuation may be required in some circumstances. Therefore he disagrees with the proposition that forced evacuation of the site would never be required because it can be directed by the relevant fire control officer.

55 When questioned on evacuation responses, Dr Wotherspoon did not consider it appropriate to compare the present scenario with the fire event in a rural situation in Victoria, particularly as the sample size of one is significantly different. Furthermore, he does not consider it reliable to utilise the aforementioned evacuation rates because he considers it most likely that in a bush fire event 100% of residents will decide to evacuate and this could occur in the final 10 minutes prior to the fire front. But he was unable to produce any evidence to support this opinion.

56 Mr Short, the Group Manager Community Resilience at the RFS also gave oral evidence. He said that both he and Ms N Fomin (RFS) had provided advice to council regarding recommended conditions of consent, including requirements for APZs and new building standards to comply with AS 3959 - 2009.

57 In his letter of 10 May 2011, Mr Short referred to the Urbanhorizons ' Lane Cove Bushfire Accessibility Report', which presented a number of conclusions on the adequacy of the existing road system. It also commented on "possible improvements" to Batten Reserve, which were considered to assist with fire fighting access and operations. Whilst acknowledging that the RFS was not a traffic authority, he said the RFS would rely on the recommendations in the report, presuming that the report was based on appropriate modelling inputs.

58 When cross - examined, Mr Short admitted that he had not had the opportunity to read the current joint expert report. But when taken through the various aspects of the development, including that the proposal does not involve any works within Batten Reserve, it complies with the APZ requirements in PBP, the degree of threat is addressed by specified protection measures, he agreed that if the "possible improvements" to Batten Reserve were not undertaken, this would not result in the RFS withdrawing its support for the application.

59 With regard to the recommendations that the road width of 7.3 m in Gordon Crescent and other local streets is below the 8 m minimum carriageway width specified in PBP, Mr Short expressed concerns, notwithstanding the acceptance by the traffic experts. Even with no parking restrictions along one side of Gordon Crescent, he was still dissatisfied that fire trucks would able to safely and conveniently manoeuvre and said that as a matter of principle he would withdraw support for the application.

60 However, Mr Short was directed to Ms Formin's letter of the 8 April 2011 wherein she recommended on behalf of the RFS, five conditions to be imposed on any consent. These conditions refer to APZs, Design and Construction details so as to satisfy AS 3959 - 2009. Insofar as they do not require any road widening condition adjacent to the subject property, Mr Short agreed that adherence to the 8 m road width requirement was probably not universally shared across all officers of the RFS and various discretions exercised.

61 Mr Short was also questioned on the various references to PBP, which does not specifically deal with high-rise buildings at the interface with bushland. He acknowledged that this is a matter under internal discussion and the RFS is likely to give it further consideration. But at the present time, PBP is the appropriate control for high rise buildings

62 Ms Duggan also questioned Mr Short on likely evacuation procedures. This was based on the 2 bush fire scenarios for Batten Reserve that:

(1) The bush fire could occur a result of spotting from another fire further afield, or

(2) An arson attack in the reserve, which would likely result in less response time.

63 In response to Scenario (1) Mr Short said the RFS does not have a position in relation to whether or not all residents should be required to evacuate in any particular circumstances. With regard to a "well prepared dwelling" situation, Mr Short said the recent RFS policy has been changed to "prepare, act and survive". He explained that this means that:

"if you have a well - prepared house and you are physically and mentally able, the best thing for you to do is stay and defend your property".

64 Accordingly, prepare, act and survive is now considered the safest option. If people decide to leave, they should do so early, which is well before the fire is an immediate risk. However, by reference to a potential fire in Batten Reserve, Mr Short provisionally accepted Mr Tucker's assessment that such fire would likely be "low risk". Even so, with the dwellings being well - prepared, he considers that if evacuation is not undertaken early, it is safer to remain in the dwelling.

65 Mr Short said that one of the relevant findings of the Victorian Royal Commission is that regardless of engagement or education practices to build people's resilience and to assist them make informed decisions, still about 80% of residents will wait and see. He thinks this approach is likely to continue for some time.

66 In response to questions from Mr Seton, Mr Short was not aware of whether the rezoning proposal had been referred to the RFS before its approval. But he confirmed that the CSIRO is currently considering options to deal with high-rise buildings that could be incorporated into future revisions of PBP. If however any changes were proposed, this would involve public comment and then Ministerial approval, taking at least six months. Whilst he speculated on possible changes to the PBP, he admitted this was still only 'internal RFS discussion'.

Conclusions

67 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this application demonstrates reasonable compliance with the zone objectives, the Part 4 development standards and has also satisfied the traffic contention to merit conditional consent.

68 Insofar as the development application is for a four storey RFB within a recently zoned R4 Residential precinct, the only issue raised by council concerns the adequacy of information to assess whether existing the road system can cope with the cumulative effect of traffic in a bush fire event. Otherwise the merits of the application, particularly the urban design matters have been assessed in detail and considered by the Council and the JRPP as satisfactory for consent subject to the resolution of the traffic issue.

69 In this case, the applicant has responded to the sole contention by way of Mr Darroch's planning assessment, whose findings have been utilised by Mr Hazell to model traffic movements within the precinct. This has also involved bush fire input from Mr Tucker, thereby providing more planning details. The submission of these details addresses the concern identified by the JRPP.

70 The Mowbray Road Precinct is clearly defined in the planning controls and Mr Darroch has investigated the potential development yield. His methodology has involved a determination of the total area of the precinct (by title) being 139,072 sq m. If this land was unconstrained and capable of the maximum development at the permissible FRS of @ 2.1:1, the yield would be about 2700 dwellings. However, I accept from the evidence that there are real constraints that would preclude this maximum level of development.

71 I am satisfied to rely on the evidence of Mr Darroch that realistically deductions should be made for areas constrained by topographic features, the APZ areas and unlikely redevelopment of some sites such as the existing RFB sites. This results in the available area for development being 78,250 sq m. As the subject site constraints and compliance with the other development standards results in an FSR of 1.5:1, if a general allowance of 1.6:1 was made, together with an efficiency allowance (i.e. reduction for lobbies, communal space etc), then there would be a yield of approximately 1064 (two bedroom) units, which decreases to 945 dwellings by allowing for the 119 dwellings to be demolished.

72 I accept Mr Darroch's analysis that the development yields from the other 6 RFB's already lodged in the precinct is in the order of 1unit/51 sq m. Applying this to the developable area and ignoring bushfire constraints, then there could be a yield in the range of 1369 - 1676 dwellings, depending the actual yield.

73 But as part of his verification process, Mr Darroch's compared his estimated dwelling density to the council nominated estimate of a "development yield of 2357 dwellings", as stated by Mr Bridgman. However this figure could not be reconciled by reference to the other development applications, where the potential yield is likely to be 1/51sq m, resulting in a maximum of 2167 dwellings, which would then be reduced according to the constraints applying.

74 Considering that Mr Darroch presented the only expert planning evidence, I am satisfied that his approach in identifying and making allowances for the existing constraints on the land and resulting in a potential yield within the range of 945 -1500 dwellings is reasonable. The council's estimate of 2357 dwellings was not substantiated and I do not consider it reliable based on the detailed cross-examination of Mr Darroch. In this regard, I note there is a reasonable degree of consistency with the Urbanhorizon's estimation of a future population density in the order of 1200 - 1500 dwellings. However the applicant does not rely on those findings.

75 Insofar as Mr Hazell undertook detailed traffic modelling for the precinct roads and intersections, there was no objection from Mr Bridgman to this methodology. Instead, there was agreement by the traffic experts that under various traffic scenarios, the outcome would be reasonable.

76 The scenarios included modelling for the range of dwellings determined by Mr Darroch. Consideration was also given to the findings of Mr Tucker regarding the "late" evacuation in the last hour, whereby the figures of 23% and 50% were modelled. The council's figure of 2357 dwellings with 50% departure was also modelled, which resulted in all intersections performing satisfactorily except Mowbray Road and Kullah Parade. But I consider this outcome is most unlikely because the development density is over estimated.

77 In the circumstances of the agreement by the traffic experts at para 44, I am satisfied to rely on it that the cumulative traffic issue in a bush fire emergency event has been adequately addressed.

78 In reaching this conclusion I have considered the differing evidence before the Court on the possible reaction of residents to evacuating in a bush fire event. The only substantive evidence is that from the Royal Commission in the Victorian bushfires, which Mr Hazell and Mr Tucker considered reasonable to apply. Whilst I accept that there is a significant difference in context, I am nevertheless satisfied to rely on Mr Tucker's opinion concerning the rate of evacuation action because:

• The subject area including the primary fire source in Batten Reserve is well defined in an urban context, which is relatively small with a "low risk" category, and is reasonably accessible for bush fighting from the perimeter roads.
• The new dwellings will be built to the Australian Standard so as to be classified as "properly constructed dwelling" whereby most residents would be encouraged to remain in the building during a bush fire event.
• The new dwellings will be included in strata plans wherein conditions can be imposed for the preparation and communication of emergency planning procedures, including appointment of "fire wardens".
• There is the opportunity to update an appropriate Displan for this localised area.

79 The alternative evidence is that of Dr Wotherspoon, who considers that residents are most likely to "wait and see" and then 100% will evacuate in the last 10 minutes before a fire front. Whilst no substantive basis was presented to support this opinion, the overall evidence indicates to me this would be most unlikely.

80 In this scenario, the residents would presumably try to leave in their vehicles from the basement garage onto Gordon Crescent. But this could be directly into any fire front from Batten Reserve and the street is most likely to be filled with smoke with low visibility, which would make vehicle movement extremely hazardous. I do not accept that this 100% of residents in this situation would choose to drive in this fire event during the 'last minutes'. I note that the development contains internal site access whereby pedestrians could leave by foot to Mowbray Road. This procedure could be included in the site emergency plan. Therefore I do not rely on Dr Wotherspoon's opinion.

81 As noted previously, this matter attracted considerable public interest both in the form of written and oral objections. In considering these objections I note that a universal concern is that the R4 Residential zoning is inappropriate and that a decision on the application should be deferred until the DPI enquiry into the planning issues is determined. However, the Fact Sheet acknowledges the existing development applications and states that they should be considered on the basis of the current controls. I have followed that path.

82 In addition to this, Ms Duggan's submissions refer to the findings in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; 138 LGERA 237 where McClellan CJ said:

[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.

[118] In most cases it can be expected that the court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

83 Following this authority, I considerate appropriate to determine the application on the basis of the current zoning. I note that had the DPI wanted to suspend consideration of development applications, other courses of action were available. I therefore consider the Enquiry is a neutral factor in the determination of this application

84 Insofar as some objections were lodged regarding the merits of various design aspects of development, council did not raise this as an issue. Instead the submissions for council were that it and the JRPP had considered a detailed planning assessment report resulting it being satisfied that the urban design considerations, including Part 4 development standard compliance, were acceptable subject to conditions.

85 In this regard, I particularly note the following reference in Part A of the DCP in section 1.4:

Nevertheless Council will assess development applications on a merit - based, flexible basis, taking into account factors including the realistic redevelopment potential/timeframe of other sites in the vicinity. A priority will be the achievement of the floor space in the LEP, notwithstanding the DCP's provisions and controls.

86 Accordingly, I do not consider there was any compelling evidence submitted that would result in the refusal of the application on urban design grounds.

87 The objectors expressed genuine concerns about impacts on Batten Reserve, which is an attractive bushland maintained by the community. But it is clear from the evidence that the approval of this development does not necessitate any direct works in the reserve. Even though Urbanhorizons made some suggestions about possible fire risk measures, these were discretionary and not essential in any consent. Having considered the RFS response, I am satisfied that the approval of the application does not require imposition of conditions requiring works in Batten Reserve. Under these circumstances there should be no direct impacts on the flora and fauna in the reserve.

88 Insofar as other objections were made about adequacy of infrastructure such the size of the trunk sewer in the reserve and stormwater discharges, this was not raised as an issue and there was no expert evidence presented to the Court that confirmed the speculation. Presumably the usual procedure of compliance with Sydney Water requirements addresses this. Therefore I do not consider this concern would result in the refusal of the application. It is however likely that the DPI enquiry would consider options for any expansion or upgrading of essential infrastructure to compliment the zoning.

89 A number of concerns were expressed about the capacity of the road system to cope in a bush fire event and I have considered these in conjunction with the aforementioned expert evidence. Other concerns were expressed about the capacity of the road system due to the increase in density, however I am satisfied to rely on the evidence of the traffic experts that there should be a satisfactory level of service.

90 Draft conditions were submitted in accordance with the Court's procedures with the applicant substantially agreeing to them. However, considering the differing views expressed about the road widths, it seems to me that a cautious approach is appropriate in the circumstances of this case. Accordingly I consider that endeavours should be undertaken to achieve a minimum carriageway width of 8 m, particularly on perimeter road Gordon Crescent, which borders Batten Reserve, so as to comply with PBP. It is apparent that there are options for the existing carriageway to be widened by. 0.7 m either on the northern or the southern side adjacent to the reserve, although this option involves undesirable environmental impacts.

91 The efficiency and safety of this local road system also depends on some existing parking restrictions adjacent to the reserve. Considering the uncertainty expressed about the extent of these restrictions, I consider it desirable for the parties to make further submissions about the most appropriate options for widening the road carriageway to 8m, so that reasonable conditions can be imposed.

92 The acceptability of this proposal is dependent on the approval of an effective emergency ( Displan ) for this precinct. In response to the disparate opinions on possible evacuations, I think it a priority for the emergency planning process to be instituted as soon as possible and in the circumstances, it could be reasonable for the developers to contribute towards the preparation this precinct emergency plan. The parties are invite to make submissions in this regard.

93 In the ultimate, this proposed development complies with the current R4 zoning to permit consent, it has been subject to thorough detailed planning assessment from which no urban planning issues were raised by the parties. Accordingly, the applicant has responded to the cumulative traffic issue by way of the planning and traffic analysis, which I am satisfied follows current practice and can be relied upon. Council provided no alternate expert evidence that in my opinion would warrant setting aside the applicant's traffic study.

94 Insofar as there were considerable public interest matters raised, I do not consider they should be given such weight so as to refuse the applicant, particularly considering its overall compliance with the planning controls. Another aspect of balancing the various public interest considerations is that the approval of this complying development will likely create additional housing in this attractive and convenient high amenity location.

Court orders

95 The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to D200/10 for the demolition of 4 dwelling houses and the erection of a four storey residential flat building containing 46 dwellings with basement parking at 532 534 Mowbray Road and 72 - 74 Gordon Crescent, Lane Cove subject to the conditions in Annexure A.

(3) The exhibits may be returned except for 1, 3, 9, A, D, E, H and N.

R Hussey

Commissioner of the Court

Decision last updated: 28 September 2011