Easter Developments Pty Ltd v Shoalhaven City Council [2024] NSWLEC 1676

Easter Developments Pty Ltd v Shoalhaven City Council [2024] NSWLEC 1676

Consent for the proposed 3 lot Torrens title subdivision is refused principally because the required Asset Protection Zone is not wholly contained within the site. There is no guarantee or binding mechanism ensuring the adjoining Council land (comprising 6m of the APZ) will be appropriately managed or maintained as an Outer Protection Area for the lifetime of the development. Consequently, exposure to bushfire risk for dwellings is unacceptable and the site is not suitable for the proposed development.

Parties
Applicant: Easter Developments Pty Ltd ACN 608 163 122; Respondent: Shoalhaven City Council
Jurisdiction
Australia
Judgment Date
24 October 2024
Procedural Posture
Development Appeal (class 1) / Remitter: Appeal Following S 56 a Appeal, Final Determination After Earlier Decision Set Aside
Outcome
Appeal dismissed; development consent refused.
Legal Topics
Development Applications, Asset Protection Zones, Bushfire Prone Land, Integrated Development, Statutory Compliance, Discretionary Consent Powers
Planning and Environment Local Government Bushfire Law Development Applications Asset Protection Zones Bushfire Prone Land Integrated Development Statutory Compliance +1 more

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Parties

Easter Developments Pty Ltd ACN 608 163 122

Applicant

Shoalhaven City Council

Respondent

Procedural Posture

Development Appeal (class 1) / Remitter: Appeal Following S 56 a Appeal, Final Determination After Earlier Decision Set Aside

Legal Issues

  1. 1 Whether development consent should be granted for a 3 lot residential Torrens title subdivision on bushfire prone land where the proposed Asset Protection Zone (APZ) is not wholly contained within the site but extends onto adjoining Council land;
  2. 2 Whether the proposal conforms to the standards and requirements for APZ under Planning for Bush Fire Protection 2019 (PBP), Environmental Planning and Assessment Act 1979, Rural Fires Act 1997, and Rural Fires Regulation 2022;
  3. 3 Assessment of site suitability for the development in light of bushfire risk and management standards.

Ratio Decidendi

Consent for the proposed 3 lot Torrens title subdivision is refused principally because the required Asset Protection Zone is not wholly contained within the site. There is no guarantee or binding mechanism ensuring the adjoining Council land (comprising 6m of the APZ) will be appropriately managed or maintained as an Outer Protection Area for the lifetime of the development. Consequently, exposure to bushfire risk for dwellings is unacceptable and the site is not suitable for the proposed development.

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • The appeal is dismissed.
  • Development application No 21/2577 for demolition of garage and 3 lot Torrens title subdivision at 21 Duncan Street Vincentia is determined by the refusal of consent.