Bleeze v The Barossa Council No ERD-99-1014 [2000] SAERDC 4 (19 January 2000)

Last Updated: 3 April 2000

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Decision of Commissioner Hutchings

Hearing

20/12/1999 to 21/12/1999.

Catchwords

Land division for rural living near Williamstown - Yettie Valley Policy Area - bushland - impacts from consequences of division - bushland has high conservation value - balance of development and conservation in rural planning - refused and Council decision confirmed.

Materials Considered

• Environment Resources & Development Court Act 1993 s16;
• Native Vegetation Act 1991 , referred to.

Representation

Appellant DENIS BLEEZE:
Counsel: MR KYM TREDREA - Solicitors: NORMAN WATERHOUSE

Respondent THE BAROSSA COUNCIL:
Counsel: MR JAMES HILDITCH - Solicitors: WARD & PARNTERS

ERD-99-1014

Judgment No. [2000] SAERDC 4

19 January 2000

DENIS BLEEZE

v

THE BAROSSA COUNCIL

ERDC No. 1014/99

[2000] SAERDC 4

THE COURT DELIVERED THE FOLLOWING DECISION

1 On 7 February 1999, Denis Bleeze sought consent from the Barossa Council to divide Lot No. 99, Gottwald Road north of Williamstown into two for rural living. He was refused on 8 July 1999. He appealed and no settlement being reached at the required conference under Section 16 of the Environment Resources & Development Court Act 1993, the matter came to this inquiry at which time he was represented by Mr Kym Tredrea, of counsel, and the Council by Mr James Hilditch, also of counsel. Evidence was given by Messrs James Allen and Michael Wohlstadt, both MRAPI, Ms Elizabeth Byard, a native vegetation assessment officer, Mr William Matheson, an agricultural scientist and Ms Ann Prescott, an ecologist.

2 The proposed division is shown on Figure 1. The crooked boundary has been positioned to avoid single trees or clumps as far as possible. A track leads from Gottwald Road to the existing house. Part of it lies within the right-of-way marked A. To the east of the house and south of the track is a large cleared area. There is a dam near the southern boundary of the subject land and about 40 metres west of the Gottwald Road boundary. To the south and west of the house are cleared areas, as there are to the north around the sheds and tanks. These cleared areas are adjuncts to household activities. Further to the north and north-west are clearances (rather than cleared areas) which contain native grasses. There is another such area to the north-east.

3 The greater part of the subject land contains native bushland. It continues southwards into the adjoining section which contains a large oxidation lagoon. It also continues north-westwards onto other rural living properties where it is relatively narrow.

4 Ms Byard describes the vegetation on the subject land thus:

"The vegetation consists of Eucalyptus fasciculosa (pink gum)/Callitris preissii (southern cypress pine) low to low open woodland over a dense and diverse understorey with both grassland and heathland features.

The greyish areas between the trees and shrubs on the aerial photograph contain the dense grassy/heathy understorey of very high biodiversity significance.

Disturbance levels are low, except in the immediate vicinity of the house, where the vegetation clearance for the house itself and for the associated sheds, tanks, lawns, gardens and dam is clearly visible on the aerial photograph.

Weed levels are low, although some small localised weedy areas were recorded immediately behind and to the south of the house, and under a patch of Callitris preissii (native pine) towards the north-west corner of the property."

The Development Plan

5 The Barossa (DC) Structure Plan (Map Baro/5) shows an extensive tract of land from Sandy Creek in the north-west to Williamstown (some nine kilometres to the south-east) as being designated for rural living. The Barossa (DC) Zones and Policy Areas map (Map Baro/6) shows this tract as falling within a number of policy areas which, towards the south-east, are called the Yettie East, Yettie Creek and Yettie Valley areas. The subject land lies in the latter and its one objective is:

"Objective 1: A desired character in which:

(a) residential development is compatible with rural activities;

(b) development occurs in a manner which protects the water catchment of the Barossa Reservoir; and

(c) the scenic quality of the area, particularly as viewed from Yettie Road, is retained."

and its first Principle of Development Control is:

"1 Development should be for residential purposes on allotments with an area of at least four hectares. If an adequate water supply exists without the use of groundwater, allotments should be of two hectares or more."

6 The rural living purpose of the proposed division does not offend these provisions. As a site design, the proposed boundary line and the shape and size of the consequent two land parcels are acceptable in terms of the land division principles of development control in the Council-wide part of the Development Plan.

7 However that is not the end of the matter. In rural areas, planning is fundamentally concerned with balancing development and the conservation of nature. Hence the Plan contains provisions such as Council-wide objectives:

"Objective 16: Preservation and reinstatement of native vegetation."

"Objective 21: Maintenance of the balance of the biological system."

and there are a number of principles of development control under the heading of Conservation; in particular:

"40 Development should take place in a manner which will not interfere with the biological balance in the area."

"45 Trees and other vegetation, including native flora and bushland remnants, should be preserved which are of:

(a) particular visual significance or interest;

(b) existing or possible future value in the screening of building or unsightly views;

(c) existing or possible future value in the provision of shade or as a windbreak;

(d) existing or possible future value in the prevention of soil erosion;

(e) particular historic significance or heritage value;

(f) scientific interest; or

(g) value as a habitat for native fauna."

"46 Native vegetation should not be cleared if it:

(a) provides important habitat for wildlife;

(b) has a high plant species diversity or has rare or endangered plant species and plant associations;

(c) has high amenity value;

(d) contributes to the landscape quality of an area;

(e) has high value as a remnant of vegetation associations characteristic of a district or region prior to extensive clearance for agriculture;

(f) is associated with sites of scientific, archaeological, historic, or cultural significance; or

(g) is growing in, or is characteristically associated with, a wetland environment."

8 The proposed development does not stand alone as a land division. It will have consequences. The new divisional boundary will grant land owners the right to clear along the boundary for fencing. Given the take up of land parcels in the locality for dwellings, in all likelihood a dwelling will result and Mr Matheson made a detailed inspection to identify possible sites suitable for a dwelling (Figure 2). Other consequences would be a track (as a branch from that to the existing dwelling), possible internal fences, and the various ancillaries and activities that another family could be expected to generate around their home.

9 The vegetation on the subject land has been evaluated by three people with qualifications and extensive experience in land management and the natural sciences. Mr Matheson opined that:

".... the proposed land division and subsequent building of a dwelling and outbuildings will have minimal impact on the biological value of the area."

albeit he saw it as:

" .... desirable that a land management plan be developed when a development application for a dwelling on a nominated site ...."

is lodged. Ms Bryant and Ms Prescott were of the contrary view. Ms Byard in association with Dr Peter Lang, (perhaps the doyen in the discipline of botany) undertook a detailed survey of the vegetation on the proposed dwelling sites in addition to more general surveys of the vegetation on the subject land as a whole. She concluded that the vegetation has "high biodiversity significance". Ms Prescott (as did Mr Matheson) also undertook a more general survey and she concluded that:

"The native vegetation on this allotment provides important habitat for wildlife, has high species diversity, is a rare plant association, has high conservation value as a remnant of vegetation associations characteristic of the district prior to extensive clearing for agriculture."

10 Notwithstanding, could the introduction of another rural living use be accommodated. To the site planner, it would appear on the face of it that a dwelling could be introduced into one of the places identified by Mr Matheson. All of these sites have, to a greater or lesser extent, relatively little "upper" and "middle storey" vegetation; ie, trees and shrubs. However, the survey referred to above (Exhibit R5) notes that native grasses are well represented within them. Dwelling development would destroy these. Moreover, as set out by Mr Wohlstadt, it is reasonable to assume that clearing (having regard to the provisions of the Native Vegetation Act 1991) could take place over an area of 60 x 50 metres; ie, an area somewhat larger than that of each of Mr Matheson's sites A to E (30 x 20 metres). Notwithstanding, Mr Wohlstadt pointed out that:

"The level of total clearance for a dwelling and associated buildings' footprint is less than 1% of the subject land. Track clearance, depending on the site selected will be a minimal additional area. Together with an area for fuel reduction for bushfire prevention, the impact level (total and partial) from new residential structures and immediate associated use is approximately 5% of the subject land."

Once again from a general site planning point of view, it might appear that, in the overall scheme of things, this could be acceptable. A dwelling could be "tucked away" in the bush and to the casual observer the result might look pleasing. However, Ms Byard and Ms Prescott have demonstrated conclusively there is more to it than that. The bushland on the subject land has very high value as a natural resource and on the basis of their investigations and evaluations they are firm in their views that the consequences of the proposed development would be unacceptable in conservation terms and would contravene the relevant provisions of the Plan.

11 I find their evidence persuasive and, while I have given careful regard to that of Mr Matheson and Mr Wohlstadt, the balance between development and conservation must tip towards the latter. It is the decision of the Court that Development Number 960/D012/99 is refused and the decision of the Council confirmed.

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