The Land and Environment Court has dismissed an appeal against the refusal of a development application for a new house that would have placed an area containing Blue Gum High Forest at risk of destruction. The case, Johnson v Hornsby Shire Council (2014) NSWLEC 1215 (decided 21 October 2014) is of particular interest because it illustrates how the recently (1 August 2014) enacted Rural Fires Amendment (Vegetation Clearing) Act 2014 (NSW) can influence the determination of planning decisions. The case also demonstrates that if thoughtful, ecologically conscious design choices are made, new development can be carried out in proximity to environmentally sensitive remnant bushland. The Court's decision, handed down by Commissioner O'Neill, can be referenced at the following link:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174853
The background to the case was that the proposed development site, located in the suburb of Beecroft, had been the subject of a previous subdivision approval that had been granted by the council which had required the preservation of Blue Gum High Forest located at the rear of the property. This type of forest is listed as a "critically endangered ecological community" under the NSW Threatened Species Conservation Act 1995 and is thus protected. The subdivision approval included a condition which required that a restriction be placed on the use of the part of the land where the Blue Gum High Forest is situated under the Conveyancing Act to require retention of significant trees and to prohibit building works which could adversely impact on the forest area.
Notwithstanding the restriction that was provided for by the subdivision proposal, the remnant Blue Gum Forest was placed at risk due to the operation of the Rural Fires Amendment Act. The Act provided for the addition of a new section 100R to the Rural Fires Act which allows for the removal of any trees located within 10 meters of an external wall of a house in any area that is designated as a "10/50 vegetation clearing entitlement area" and dispenses with the requirement that approval for such tree removal be obtained under the Environmental Planning and Assessment Act, the Native Vegetation Act, or any other legislative regime. As the property that was the subject of the development proposal is in a "10/50 vegetation clearing entitlement area", the grant of consent would have had the effect of allowing the removal of more than half the remnant Blue Gum High Forest on the property (as trees characteristic of such forest would have been located within 10 metres of the building envelope of the proposed new house.
Commissioner O'Neill concluded that the grant of a development consent that would subject such a large part of the Blue Gum Forest to likely removal was unacceptable. She found that a more "economical layout" of the site than was suggested in the development application would have provided for a greater setback between the proposed new house and the area of remnant Blue Gum Forest, thus keeping the significant trees in the forested area more than 10 metres from the house and protecting them from possible removal under the "10/50" provisions of section 100R of the Rural Fires Act.
The outcome in this case shows that the "10/50" rules can actually be an impediment to a development proposal, and that in circumstances where ecologically significant trees are growing within 10 metres of a planned new house or other residential building, the interest in protection of those trees may outweigh the interest of the proponent of the development application, and can result in the failure of the application.
Consequently, the message to be "taken away" from this case is that following ecologically careful design principles, by providing a sufficient buffer area between proposed new residential buildings and environmentally important trees, is also a conservative approach which will enhance the likelihood that a development application will gain approval.
Addendum 3 November 2014: Coverage of this case has appeared in today's on-line edition of The Daily Telegraph, but Concordia Pacific & The Daily Planet had the scoop first!!!! The link to the Daily Telegraph's story is at http://www.dailytelegraph.com.au/newslocal/news/land-and-environment-court-rejects-da-in-beecroft-out-of-fears-for-blue-gums-under-1050-legislation/story-fngr8gwi-1227108405347
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