Blue Mountains Conservation Society

We believe that the provisions of this Plan should not be watered down, and therefore support the exemption from SEPP 1 which applies to minimum development space and site coverage in some zones. Moreover, we believe that the exemption from SEPP 1 should apply to the whole LEP. We strongly contend that a court should not have the power to distort its meaning or diminish its intent - under the umbrella of flexible interpretation.

The community itself, through the planning process, should decide which limits are absolute, and which are guidelines for flexible interpretation. These definitions should be written into the LEP and it should not be possible by a court which has been given the power by the State Government to interpret all LEPs 'flexibly' (through SEPP 1). The environment and the community are almost always the losers when SEPP 1 is applied.

This clause could be interpreted as allowing Council to override covenants regarding conservation or recreational use and we do not believe this is the intention of the Plan. We recommend an additional point be inserted to state that this clause should not be used to override any existing covenants in the public interest.

Cl:6.2(c) - BETTER LIVING DCP

We support the inclusion of the important development standards in the LEP itself, rather than being in a separate document. This higher level of legal recognition gives more certainty to the community.

We support the improvement of the DCP's legal status that will result from its being 'called up' in the LEP. It would be preferable that the entire DCP is called up in this clause, not just part D.

We support the use of maps created specifically to identify protected areas, as well as zones.

Commissioner Carlton's Recommendation (Page 142 Item 9g) states that "mapping of undeveloped areas of watercourses should be included in the Draft LEP and other watercourses should be included in a DCP".

The mapping of watercourses in the legal maps would give greater legal clarity. This would allow for an amended definition of watercourse as that identified map panel X or if not then satisfying the existing dictionary definition. (See Appendix A for a discussion of watercourses)

We support the requirement for compliance (rather than consistency) with objectives, management provisions and assessment requirements, etc. However we note that compliance with zone objectives is not specifically stated here - this is a concern.

We support the inclusion of a full definition in this Plan. We particularly support the inclusion of Clause 11[2(e)] for continual improvement. Currently, developments are often approved on the basis of the existence of 'past and current impacts of development'. For example, the extension of fairways into a hanging swamp at Katoomba Golf Course was justified because of existing mowing practices and blackberry infestation.

There is a need for a clause which clearly states that present degradation does not justify future degradation. This clause could provide some guidelines to control cumulative impact.

We propose the following addition to subclause (c ) (ii): ' . . .(options), with particular consideration given to cumulative impacts and ensuring that previous environmental damage is not compounded.'

The DUAP guide to s 79C of the EP&A Act clearly identifies cumulative impacts as an important consideration on p 9.

Plan objectives (cl:12) and zones objectives (Part Two, Division 2 , Clauses 18-31) should be prioritised to provide greater legal certainty. These objectives are potentially in conflict unless a priority order has been established. The priorities should be established by the community, not by a court, whose role should be only to interpret.

Tim Robertson, QC ^¹discussed in detail the importance of prioritised objectives to make LEPs work effectively at a Conference organised by the Nature Conservation Council held 27-28^th August 1999. The lack of this prioritisation was supported by other legal practitioners as a major weakness in most LEPs in NSW.

PART TWO

DIVISION 2 - ZONE OBJECTIVES

The objective " To permit only development that does not place unacceptable demands on infrastructure and services" should also be included in these zones, just as it is in the other two Village zones.

The objective " To permit only development that does not place unacceptable demands on infrastructure and services" should also be included in these zones.

We support the application of EP zoning to sensitive sites throughout the LGA based on slopes, sensitive vegetation, watercourses etc.

We strongly recommend the inclusion of an additional objective that would justify and encourage Council actions/decisions to retain an area in good condition. The proposed set of objectives do not precisely address this issue in relation to EP-General Zones. For example, if Council is to prevent the planting of non-indigenous plants in an EP zone, there should be both more specific zone objectives as well as the identification of this activity as a prohibited activity.

"To protect and promote the conservation of environmentally sensitive land and areas of high scenic value in the City from development and other degrading activities"

DIVISION THREE - PERMISSIBILITY OF LAND USE

Grazing of hooved animals does not appear to be restricted within the DLEP. Hooved animals cause major degradation on creeklines and slopes, and in sensitive vegetation. The grazing of individual "pets" should be excluded from all EP zones. As development not included in the land use matrix is prohibited [cl32 (3)], it is unclear whether the keeping of individual animals is prohibited by this DLEP. Would they come under the definition of "rural livestock" in the definition of animal establishments?

We believe that there is a need for specific detail on this matter. In the past, Council Officers have expressed their belief that neither LEP4 nor LEP91 empowers them to exclude hooved animals where only small numbers of animals were involved.

Parking as a permissible use in the land use matrix for EP zones is a concern. Whilst it may be reasonable for a small area beside a road to be used for parking, it is not appropriate to use a large paved area for this purpose. This distinction was apparently intended by creating separate definitions for 'parking' and 'parking facilities'. A site area limit could be included in the definition of 'parking'.

There is a need to specifically prohibit non-indigenous animals and the planting of non-indigenous plants in both EP zones. A bushcare group attempted unsuccessfully to persuade Council to take action under LEP91 against a land owner planting rhododendrons on EP land. Council stated it could not interfere, as the LEP objectives only related to development applications. (see copy of letter attached in Appendix C ))

"Council has no control over what people plant in their yards if the plants are not noxious weeds . . .Likewise there is no obligation on land owners to meet the objectives of the LEP if no development consent is required for the activity they are carrying out."

If the land use matrix is not be the most appropriate place to identify these as prohibited activities in an EP zone, it does need to be stated clearly somewhere in the LEP.

There is a need to update DCP No 33 to ensure consistency with both LEP 91 and this DLEP 2002. Even prior to this DLEP, the DCP maps identify some areas as "complying" that are not, in fact, if the introductory exemption clauses are read. Certain provisions of this DLEP for hard surfaces etc. will mean that some exempt development provisions will have to be revisited and modified.

We strongly object to this clause. It allows development to encroach on adjoining zones in which such development would not normally be permissible. Even an encroachment of 5 metres into an EP zone, given the scale at which mapping for these zones was carried out and the resultant margin of error, could effectively abolish an important buffer. The potential enroachment of up to 20 metres into, for example, Living Conservation or Living Bushland Conservation from Living General, Employment or Village zones could result in a considerable increase of hard surfaces and an extension of activities unsuitable to the predominant land uses within these zones.

We maintain this objection despite the existence of provisions in Part 3, Div 2, Cl:43(4) which seek to prevent environmental impacts on development-excluded land, since these safeguards rely solely on the discretion of the consent authority as to "adverse environmental impacts". Appeals against this discretionary decision can only ever be undertaken by the applicant, if he/she considers the Council is being too harsh in preventing environmental impacts. It can never be challenged by those who believe that Council is not being stringent enough in the prevention of environmental impacts. The EP&A Act does not allow third party merit appeal rights to the Land and Environment Court.

Nothing in this clause or in the definition of an asset protection zone ( APZ ) in the Dictionary clarifies what proportion of vegetation within the APZ can be cleared in order to achieve bushfire protection. It is not uncommon practice to bulldoze an area to bare earth in the name of achieving bushfire protection. This degree of clearing should be clearly defined as development, requiring a development assessment and appropriate conditions of consent.

The maximum proportion/amount of vegetation that can be cleared within an APZ for the purposes of bushfire protection should be defined - either in this clause or in the definition of an APZ.

A readily measurable standard must be established. Such a standard will need to be in accordance with the provisions of a Bushfire Environmenal Assessment Code under Division 8 of the Rural Fires Act 1997 (which we recognise has not yet been developed, but which is expected early in 2003).

This clause should also specify the acceptable means of clearing - namely, cutting and slashing, but not pushing over vegetation. The soil surface must not be disturbed. Mulch should be retained and packed down to control erosion.

The Rural Fires Act section 100C ss (3) (a) to (c) gives exemption from the EP&A Act (and therefore the LEP) only if

This LEP may need to repeat these requirements. Clearing that does not meet the defined criteria must be approved under the EP&A Act.

The term 'Boundary adjustments' in subclause (2) (a) must be more precisely defined to ensure that an effective subdivision cannot occur using this subclause as justification.

One example of a situation where this same clause under LEP 91 could not prohibit an effective subdivision occurred at 131-133 Grand Canyon Rd Medlow Bath (DA S/14/2001). The owner purchased a small lot adjoining land under a NS notation. The land under NS was then proposed for subdivision with the smaller part added to the new lot. Council officers has to rely on a merit assessment of the environmental impacts to recommend the rejection of this subdivision. It should have been clear that this situation was not a "boundary adjustment".

DIVISION 1- SITE ANALYSIS

There should be a clearly defined trigger where a site analysis plan is required. Cl 41 (1) leaves the decision to the discretion of the consent authority in individual cases.

A detailed site analysis plan and environmental assessment should be triggered where a site has any of the following features:

(it is recognised that clause 51 triggers this in the case of significant communities and rare flora)

The Society's experience with DAs decided under LEP 91, which involves similar assessments to those proposed here under clause 43, shows that such a defined trigger is necessary.

One example is the DA X01/1323 at 60 First Avenue Katoomba which involved a lot with a number of the features listed above. Although the site contained the likely habitat of a listed threatened species, and the proposal involved building in a hanging swamp, no detailed site analysis or environmental assessment was undertaken.

It would be useful if the DLEP stated that all assessment documents - including the statement of environmental effects and the site analysis - are freely and readily available to the public (as required by the Local Government Act). Currently there is no clear understanding amongst the public or BMCC staff responsible for providing the community with such information. Frequently, permission must be obtained from BMCC's executive officer to inspect or copy documents; sometimes community members are informed that they cannot see or copy documents.

We support the detailed requirements of this section, and in particular sub clause (3)(e) to identify all vegetation to be removed.

DIVISION 2 - PROTECTING THE NATURAL ENVIRONMENT

Throughout this clause the following phrase is used: "the development will incorporate effective measures, satisfactory to the consent authority" . This implies that some 'end of pipe' solutions should be tacked on; it does not give clear powers to Council to reject a development unless it proposes a design, location or size that will minimise the impact. This same phrase is currently used in assessments made by council under LEP 91, in clause 10.5 and has proven to be inadequate.

Council's interpretation of the similar cl 10.5 (da) enabled Council to approve a development within a Schedule 3 vegetation unit which was also the likely habitat of a listed threatened species. No consideration was given to the possibility of an alternative development that would result in less impact (refer to BMCC Business Paper 11/12/01 item 19). Such an assessment could have resulted in a dwelling of lesser impact.

Where there is a requirement for "a detailed environmental assessment" it should be referenced to the requirements of clause 42 (of this DLEP) and also the Better Living DCP.

This clause is critical in implementing the ESD planning principle 11(2) (e)(i.e. for continual improvement). Most of the adverse impacts are the cumulative impact of residential development.

Concerning the words "development will not have a significant environmental impact"- some attempt should be made to define 'significant'. The use of such a subjective and imprecise term leaves enormous scope for discretionary interpretation, and has meant that a large number of individual degrading developments have been approved. This terms appears to allow Council to justify further development on the basis of existing degradation (eg item 19 BMCC ordinary meeting 11/12/01).

We propose that a clause along the following lines be added at the end of cl 43 (1) (to be included in this sub clause on dwelling houses)

"Consent shall also not be granted unless Council is satisfied that it is not possible to reduce the impact on any of the above features by either relocating the development, reducing its site coverage, or changing its design or type."

This suggestion is an attempt to include the concept used in the assessment of protected areas. Without such a requirement to assess possible alternatives, we believe that clause 43(1) in DLEP2002 will not change the current situation, where such features are being damaged. (ref to discussion of DA X01/1323).

Cl:43(2) & (3) - DEVELOPMENTS ON LOTS CREATED WITHIN THE LIVING - BUSHLAND CONSERVATION ZONE / SUBDIVISION

These clauses should clearly state that development on lots created by the subdivision of land under this DLEP is prohibited in the Development Excluded Land (DEL). This is clearly the intention of this clause. For community certainty and clarity this should be stated.

The phrasing of this clause has made this a 'merit assessment' about whether the impacts are adverse. The community is excluded from ever appealing a decision by Council, were it to approve development in DEL.

Detailed environmental assessments should cover all subdivisions which have the potential to impact on DEL.

Where new lots are being created, it is important that they be created so as to protect DEL. Otherwise the subdivision should not proceed, if the principal objectives of this Plan are to be meaningful.

Car parking and driveways are specifically mentioned in clause 43 (1) as an ancillary development to a dwelling house; they should also be covered by this clause as part of developments on newly created lots.

We propose that the following clause be added under (and at the end of) cl 43 (4)

Council should have the power to assess whether there are other development options that would have a lesser impact. If it cannot do so the principle objectives of this Plan become meaningless in practice.

Car parking and driveways are specifically mentioned in clause 43 (1) as an ancillary development to a dwelling house; they should also be covered by this clause as part of the development.

We support the powers explicitly given to Council to reject developments on the basis of adverse environmental impact on the National Park.

We urge Council to extend Clause 43(5) to explicitly cover all land within a catchment of a National Park.

Currently this clause only applies to land immediately adjacent to the National Park and would not, for example, protect the Park from any future proposals for trout farms on Govetts Creek or elsewhere, so long as these were one property away from the boundary.

There are no other development consent criteria that would allow Council to reject a development on the basis of impact on the Park. The principal objectives of the Plan would not allow Council to reject a development that would degrade the Park through weed invasion or feral animals, for example. There is no clear objective to maintain the biological diversity and integrity of the Park. Whilst this objective is obvious to a conservationist, it could be successfully argued that weed or feral animal invasion of the Park is not clearly counter to objectives 12 (a) or (c) .

We agree that the slopes of the Blue Mountains are vulnerable to erosion and must be safeguarded by Environmental Protection (EP) zones and Protected Area status as proposed.

We support the objectives and consent criteria, in particular (3) (e) and (4,) which will allow consideration of how impacts may be minimised and alternative development options.

Watercourses are "deemed' to be Protected Areas even when not mapped (cl 50) , we propose that a similar clause be included to cover slopes >20%.

We support the protection of significant vegetation communities by the use of Environmental Protection (EP) zones and Protected Areas- Vegetation Constraint Areas.

We agree that there is a need for ecological buffers around significant vegetation communities and support the protection they are given by EP zoning, the use of Protected Areas, and inclusion in development assessment criteria (clauses 43-53).

We commend Council on the extensive vegetation mapping undertaken.

We urge Council to ground truth all mapped significant vegetation communities to give them the better protection afforded by an EP zone plus the protection of a 60-metre buffer (part EP- part PA).

In order for Protected Areas to be maintained, it is essential that Council include requirements in its development consent criteria that will exclude non-indigenous plants and animals from these areas. (see previous discussion under cl 32 above). In order for this to occur, there must be some explicit statements to this effect here,

An additional clause is required to cover not only when development occurs on protected land but also when it occurs in the vicinity of adjacent land and may have an impact.

Cl 45 (5) Consent shall not be granted to development on land which contains protected land or is within 60 m of protected land unless the consent authority is satisfied that:

Ideally Protected Areas should also be 'protected' from the deliberate introduction of non-indigenous animals. However the problem of regulating companion animals in existing developed areas is recognised. This proposed clause in the LEP could give more direction to officers to propose development consent conditions to exclude animals from protected areas by the use of fences where appropriate.

Watercourses are "deemed' to be Protected Areas even when not mapped (cl 50) , we propose that a similar clause be included to cover significant vegetation communities where these have not been mapped.

In order for Protected Areas to be maintained, it is essential that Council include in its development consent criteria requirements that will prohibit the introduction of non-indigenous plants and animals to these areas. (see previous discussion above and under cl 32 ). In order for this to occur, there must be some explicit statements to this effect here,

An additional clause is required to cover not only when development occurs on protected land but also in the vicinity of adjacent land, for example:

Cl 46 (5) Consent shall not be granted to development on land which contains protected land or within 60 m of protected land unless the consent authority is satisfied that:

* see discussion under cl 45 above re the regulation of animals.

WATERCOURSES

We strongly support the protection of watercourses by the use of Environmental Protection (EP) zones and Protected Areas-Ecological Buffer Areas around the watercourse corridor and a buffer area.

In order to give greater consistency between those watercourses which have been mapped and zoned (according to the methodology outlined in the Planning Report) and those which have been omitted, we are suggesting some amendments to the definitions. The proposals outlined in Appendix A of this submission are intended to give greater clarity to identify the terms 'watercourse buffer' and 'watercourse corridor'.

We support the provisions of this section with the exception of clause 47(4)(b). Any further pump-out connections should be opposed, particularly in a Water Supply Catchment, for reasons of pollution. The evidence of illegal disposal of effluent is discussed fully under cl 87 and appendix B.

We support this clause which gives Protected Area status to watercourse corridors that have not been mapped.

We support the detailed provisions in this clause, in particular subclause (2) (b) which is the requirement to assess alternatives.

It should be specified that it is not permissible to remove trees by pushing them over with large machinery, because of the associated soil disturbance and impact on ground and shrub layer vegetation (ref to above discussion under cl 36).

We support the DLEP clause (53) giving Council powers to introduce a Vegetation Management Order (VMO) that can extend the existing Tree Preservation Order to cover all native vegetation (to cover shrub and groundlayer native vegetation)

We urge Council to proceed with the VMO. We believe that the VMO should focus on native vegetation and not include exotic gardens, regardless of their size

We propose the following detailed changes to the clause to better reflect these concerns.

. . . . .in order to comply with the aims of the order as specified.'

'That taking the action was reasonably necessary to protect human life, buildings or other property from imminent danger from a bush fire burning in the vicinity of the tree or vegetation'

This change is proposed to achieve consistency with the wording of 2.2 (r) of the draft VMO, and also for a more specific and tighter definition. The current draft would allow clearing on large lots at great distances away from fire.

In this clause "likely habitat tree: means any tree naturally occurring (being native vegetation or remnant native vegetation) which provides habitat for any locally indigenous flora or fauna.

"Habitat" means a place where a plant or animal lives, either permanently or periodically, which fulfils any of its resource needs, which include food, water, shelter, nesting, hunting, perching etc. It may include any biotic or abiotic component.

The proposed definition in the DLEP excludes the requirements of some birds or other animals with very specialised feeding or perching needs. For example Eucalyptus punctata, Eucalyptus gummifera and some stringybarks are a particularly rich source of nectar for birds in the Blue Mountains.

This should include powers to order vegetation regeneration, to require the making of a vegetation management plan, to undertake bushland regeneration works and to recover costs. It is understood that these powers are already available to Council through the EP&A Act, given that clearing comes under the definition of development. It would be useful to the community if this were spelt out in the LEP and also in the VMO document itself.

We support the powers to allow Council to reject DAs that proposed the planting of environmental weeds in the Living - Bushland Conservation zone (Schedule 6).

We ask Council to extend this ban on deliberately introducing environmental weeds in landscape plans to new developments in all other zones

It is suggested that the planting of environmental weeds in EP zones and Protected Areas be explicitly stated as a prohibited activity. This prohibition should extend to non-locally indigenous plants in areas where the objective is to maintain their natural condition (refer to earlier discussion under clause 32).

All references in this clause to controlling erosion on "the site" should be defined more precisely to mean keeping sediment "within the approved disturbed area". It is not uncommon practice to erect sediment fences around the property, and as a result native vegetation on the property is being harmed by sediment.

An additional clause is needed to specify the need for an erosion and sediment control plan where tree removal is to occur. This could be defined as a 'land disturbance' and then covered under cl 55 (3) and (5) (a).

This clause could be misread to mean that increased site coverage from that permitted in Schedule 2 would be permissible if there were to be water tanks. This requires clarification to ensure that minimum soft areas are not compromised by this clause.

The conditions in these clauses requiring the replacement of vegetation removed during development with suitable replacement planting should specify that mature vegetation must not be replaced with any species included in Schedule 6, even if these weed species were

28 days is not sufficient time for local Aboriginal communities to respond to such requests.

Safeguards are necessary to ensure that exemptions from the provisions for a Heritage item do not result in adverse impact on the natural environment. An additional clause should be inserted to the effect that consent cannot be granted if there will be any adverse impact on any Protected Area or Environmental Protection Zone, or if the site has any of the following significant environmental features:

We support subclauses (1) & (3) to limit the location of APZ. We also support the intent of (4) - (6), which will allow Council to reject developments where Council is not satisfied that there are adequate measures in place to protect the lives of residents and firefighting personnel.

We support the planning approach to contain urban development, and to restrict any growth to the inner-town/village areas.

We support the minimum lot sizes proposed in DLEP 2002 because of the environmental impacts.

Smaller lot sizes would not only increase the amount of development directly but also the demand for land for social and utility infrastructure services.

We particularly support a minimum 1200 m² lot size in Living Conservation and Living- Bushland Conservation zones. This constitutes a good mechanism to restrict large increases in densities in outer areas.

We commend the work done in the Residential Subdivision Study to provide the detailed information required to assess the likely consequences of the various lot size options.

We strongly support the exclusion of Environmental Protection zoned land from calculations of the minimum lot areas.

(a) We believe that the provisions of this Plan to establish a minimum development space in each newly created lot in a subdivision should not be watered down and therefore support the exemption from SEPP 1 in Living-Bushland Conservation (clause 3 [3]).

This exemption from SEPP 1 should be extended to apply to minimum allotment sizes and development spaces in all zones.

(d) We strongly support the exclusion of environmentally constrained land (DEL) from land that can be developed in areas zoned Living - Bushland Conservation. This principle should be extended to all zones.

There should be no obstacles to this as this is a prerequisite for creating new lots in clause 43(3).

We support the requirement for effluent disposal by a reticulated sewerage system on all new lots.

We support most of the requirements for cluster housing in subclause (2) on the basis that the requirements on Schedule 2 still apply. We oppose the exemption from cl 82(9).

We believe that the provisions to ensure an adequate development space outside of DEL should apply equally to cluster housing . We strongly oppose this exemption.

The following additional words are proposed for cl 85(1) (e) to ensure that 'boundary re-alignments' are not used to diminish the size of the Recreation or EP Zoned land.

In subclause (1) "unacceptable impact on the environment" should be defined. The requirements for no adverse environmental impact outlined in clause 43 could be applied here also.

We oppose Clause 87 (1). This Clause will allow developments to proceed on existing lots (not new subdivisions) where there is no reticulated sewerage system, and will allow a service to be provided by a pump-out system.

A pump-out service is acceptable if it is guaranteed that a reticulated sewerage system will be supplied to the locality within a defined time period (say two years). This is certainly not an acceptable long-term solution. Building should not be allowed to proceed in areas where it is likely that a reticulated sewerage system will not be available within a few years, or ever.

Pump-out systems contribute considerable pollution into the World Heritage Area^².

On the basis of figures provided by Council on 14 February 2001, when there were 784 households on a pump-out system, it has been estimated that 63 473 816 litres^³ per year is being disposed of illegally, and finds its way into the World Heritage Area.

There are many lots where it is not economically feasible to supply a reticulated sewerage system. The average cost per lot in some localities is as much as $89,750, with $113,461 in one locality [ref Sydney Water " Blue Mountains Fringe development (Residential Bushland Conservation) Indicative Costs as at August 2000"].

DIVISION 5 - ENERGY EFFICIENCY

The 3.5 star energy rating is inconsistent with the ESD planning principles outlined in clause 11. This is such a low standard that:

A more adequate building sustainability index should be used which takes account of more than immediate energy efficiency considerations. Such an index is being developed by Planning NSW but is not at the stage to incorporate as yet into this DLEP.

DIVISION 9 - MANAGEMENT OF PUBLIC LAND AND PUBLIC

Cl 122 - ACQUISITIONS

The methodology used to identify land recommended for acquisition is commended (ref Planning Study Vol 1 pp103). We agree that the lots identified are worthy of Environmental Protection - Open Space for voluntary acquisition.

If Council considers withdrawing any of these lots from the list presented in the DLEP, the reasons for such a change should be advertised widely to the community and an opportunity given for community debate to ensure that changes are not made behind closed doors.

We urge Council to make representation to the state government for funding to purchase these lots. Some lots may be most appropriately added to the National park. (see comments on specific sites in Section II).

Although it is recognised that Council has limited power to prevent public bodies from carrying out development in an environmentally damaging manner, we suggest that a code of practice be established to provide guidance to public bodies undertaking work in this LGA. Such guidelines should set the width of work corridors , especially on development excluded land, and to require the marking of work corridors with temporary barriers to encourage adherence to such guidelines.

We support the provisions that will reduce the amount of hard surfaces in new developments in Living Zones in Schedule 2.

We particularly support the requirement fo a minimum of 60% of any lot zoned either Living-Conservation or Living-Bushland Conservation to be retained as water-absorptive surfaces.

We urge Council to increase the area of land to be retained as soft surfaces in the Employment zones from the 20% and 30% proposed.

In some employment areas adjacent to creeklines or containing significant vegetation, this would be difficult to achieve unless there are Consolidation requirements imposed. For example in the North Katoomba employment zones east of Barton Street and the South Katoomba area north of Megalong St.

We support the provisions to limit hard surfaces and agree with the maximum of 40% in Recreation-Private. However, no limits have been defined for Recreation-Open Space. The same standards should apply.

The Society congratulates Council on the extensive vegetation mapping that has been undertaken. We support the number of communities identified and wish to make one suggestion to ensure that the definitions would encompass degraded remnants.

We propose the inclusion of an introductory statement that allows for the inclusion of a community even if the dominant species may be missing as the result of logging etc. Such recognition could give the protection that would allow for possible future regeneration of the species, if propagules are still present.

The Society strongly supports the concept of this list's inclusion within the LEP.

There is a need for a regular review process as new species become naturalised and need to be added.

We will be making specific suggestions for additions to the list in our supplementary submission.

SCHEDULE 10: RIPARIAN CORRIDOR BUFFER

An additional Schedule is proposed for inclusion in the LEP itself. "The Riparian Corridor Buffer model" contained in EMP 2002 Vol.1: Planning Framework for DLEP 2002, Appendix 2 should be added as a Schedule to the DLEP Written Instrument.

This has been used as the basis of the mapping to establish Ecological Buffer Areas around watercourses. In Appendix A of this submission we argue the value in using this model to assess buffers for those watercourses for which this buffer has not been mapped.

APPENDIX A

WATERCOURSE ISSUES IN DLEP 2002

There is a difficulty where watercourses have not been mapped in the planning studies.

We understand from the methodology outlined in the Planning Study for Blue Mountains Draft Local Environment Plan 2002, that it is intended to identify all watercourses and their buffers and zone the watercourse corridor as EP and give the buffer a PA status.

Where omissions have been made and the watercourses have not been identified disputes are likely to arise due to the lack of specific definitions for 'watercourse corridor' and 'buffer'. The point of dispute will always be that an applicant believes council is requiring too large a watercourse corridor or buffer. Council should have some clearly defined standards which are best quantified in the LEP.

There is no provision in the legislation for a community-based third party to be heard before the Land and Environment Court, therefore there can never be a dispute based on the inadequacy of the corridor or buffer.

There are two situations where watercourse corridors have not been given an EP zone where disputes are likely to arise.

1. 1 development on an existing lot containing an unmapped watercourse corridor

If the watercourses have not been mapped (and zoned EP) , the land "within a watercourse corridor" is deemed to be within a Protected Area-Ecological Buffer Area [clause 50]. Special considerations are given to Protected Area-Ecological Buffer Areas.

The problem arises as to what area of land is covered by a "watercourse corridor" and therefore what becomes the PA. We suggest clarification of this in the definition of watercourse corridor [Dictionary p 433]. The following amended definition is suggested:

"the land occupied by a perennial or intermittent watercourse, and any associated riparian creek line vegetation (belonging to a significant vegetation community) adjacent to that land which may provide habitat for aquatic or terrestrial animals.

In the event of the watercourse corridor not having been identified on the Zoning maps as an Environmental Protection Zone, the corridor means all the land within 20 metres of the centre-line of a watercourse or the extent of the riparian creekline vegetation, whichever is the greater.

In the event of the riparian vegetation having been previously cleared the corridor means all the land within 20 metres of the centre-line of a watercourse"

The reason for the 20m is based on the existing legislation and also the Environmental Management Plan 2002 Volume 1 Planning Framework for Draft LEP 2002 - Appendix 2 - "Riparian Corridor Buffer". The Rivers and Foreshores Improvement Act uses the 20m width. The Buffer model found that 20m was a significant breakpoint in the relationship between width and potential impact (p124)

All new lots are required to have adequate development space outside of the "buffer required to protect the watercourse corridor". This development space must be created outside of all Development Excluded Land.

(b) that is designated on Map Panel B as a Protected Area- Slope Constraint Area, or

(c) that is designated on Map Panel B as a Protected Area- Ecological Buffer Area or that comprises a watercourse corridor, together with any buffers required to protect the watercourse corridor, or

(d) on which any significant vegetation community is located, together with any buffers required to protect that community, or

(e) that is the habitat of any threatened species, population or ecological community, the development of which would have a significant effect on the threatened species, population or ecological community as determined in accordance with section 5A of the Act, or

(f) on which any rare species of flora is located, together with any buffers required by the Council to protect that flora, or

(g) on which there is located any significant landscape or special feature which in the opinion of Council is worthy of preservation."

The issue is the need to establish the width of the "buffer required to protect the watercourse corridor". We propose that greater clarity would be given by amending subclause (c ) as follows:

that is designated on Map Panel B as a Protected Area- Ecological Buffer Area or that comprises a watercourse corridor, together with a 100m wide Riparian Corridor Buffer from the centreline of the watercourse unless a lesser width Riparian Corridor Buffer can be calculated using the Riparian Corridor Buffer algorithm model (defined in the EMP 2002 Vol.1: Planning Framework for DLEP 2002, Appendix 2*) to protect the watercourse corridor, or

It would preferable if the reference marked * were to a Schedule in the LEP itself. For that reason we are proposing the Schedule 10 include the Riparian Corridor Buffer Model.

The reason for the 100m is based on the Environmental Management Plan 2002 Volume 1 Planning Framework for Draft LEP 2002 - Appendix 2 - "Riparian Corridor Buffer". To quote this document, "Buffers generated using the model have a minimum width of 20 metres, with variation occurring beyond that distance up to a maximum of 100 metres according to the characteristics of the individual watercourse." The buffer of 100 metres reserves the maximum riparian corridor until an on-site inspection and Riparian Buffer calculation can be performed.

This reservation is compliant with Clause 11 (2c) "Ecologically Sustainable Development - Precautionary behaviour - where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

2.0 Exclusion of Piped Watercourses

Under the definition of a 'watercourse', piped drainage lines are specifically excluded even if these follow the line of the pre-piped watercourse. Development within these piped regions is unconstrained by any environmental control. Developments can be built in the near vicinity or even over the watercourse if no Environmental Protection zone exists.

Piped creeklines are being restored within the Sydney area, for improved urban stormwater management reasons as well as for residential amenity. Future generations should not be denied this opportunity (ref ESD principles in Clause 11)

Any development's impervious surfaces would naturally drain into grates that would be directly connected to the stormwater pipes following the line of the watercourse. Foreign road-borne sediments, non-endemic seed, plant foliage, litter and other pollutants would pass through the drainage grates and flow down the piped watercourse at high speed to downstream sites. This situation usually results in highly eroded creeklines on the urban-bushland interface which deliver sediment and pollutants into the national park. The piped watercourses have to be considered part of the watercourses and an appropriate riparian buffer determined around any inlet and outlet.

Commissioner has stated that "the commission does not support the acquisition of buffer areas for watercourses on private land, instead a condition of consent should be imposed for all new development of land containing a watercourse, requiring the maintenance and regeneration of buffers wherever feasible" (Page 142 Item 9f)

In order to allow adequate space for filtration or other stormwater control infrastructure, new developments should be required to leave the same EP zone as with a natural creekline, particularly around existing inlets, but also along the whole channel to allow for possible future works.

CSIRO, the Cooperative Research Centre for Catchment Hydrology the University of Newcastle etc. (see references below). The philosophies are also stated in the "Better Living - Blue Mountains Draft Development Control Plan" but the LEP itself must ensure that appropriate space is provided for urban stormwater infrastructure projects.

Without this riparian buffer no ecological controls can be deployed to safeguard streams flowing into our neighbouring World Heritage listed National Parks.

Lloyd, Sara D., et.al., Opportunities and Impediments to Water Sensitive Urban Design in Australia, 2nd South Pacific Stormwater Conference, Auckland, New Zealand, 27 - 29 June 2001, pp302-309.

Duncan, H.P. 1997, 'An Overview of Urban Stormwater Quality', 24th Hydrology and Water Resources Symposium, Auckland, New Zealand, NZ Hydrological Society & IEAust, pp. 143-148.

Fletcher, T.D., Wong, T.H.F., Duncan, H.P., Coleman, J.R. and Jenkins, G.A. (2001), Managing Impacts of Urbanisation on Receiving Waters: A Decision-making Framework, proceedings of the 3 rd Australian Stream Management Conference, Brisbane, 27-29 August, 2001, pp. 217 - 223.

Lloyd, S.D., Fletcher, T.D., Wong, T.H.F. and Wootton, R.M. (2001), Assessment of Pollutant Removal in a Newly Constructed Bio-retention System, proceedings of the 2nd South Pacific Stormwater Conference, Auckland, New Zealand, 27 - 29 June 2001, pp.20-30.

Wong, Tony H F., A Changing Paradigm in Australian Urban Stormwater Management, Keynote address, 2nd South Pacific Stormwater Conference, Auckland, New Zealand, 27 - 29 June 2001.)

APPENDIX B

State Government Guidelines state that pump out systems are "not a viable option in the long term because of widespread misuse and abuse by householders" ["Environmental and Health Protection Guidelines - On Site Sewage Management for Single Households" Dept of Local Government, EPA, NSW Health, DLWC, DUAP Jan 1998]

The Blue Mountains City Council has been servicing 784 households on a "pump out system" over the 12 month period between February 2000 and Feb 2001. The average effluent removed per household was 79,310 litres^⁴ per year.

The AS/NSS 1547 - 2000 specifies the typical domestic wastewater flow design allowance as

180 Lpd for households on reticulated water. If this figure is used for the average household^⁵ of 2.73 people, then 179,361 L is estimated as being produced per year.

This indicates that only 44% of effluent produced is being collected. If this is the case 56% of the effluent is disposed of illegally and finding its way into the World Heritage Area which surrounds the urban area. Currently that is 78 439 984 litres per year (or 100 051 litres per household pa).

If water-saving devices are installed it is estimated that a lesser amount of effluent would be produced per household, i.e. 144,485 litres pa. Therefore the estimate of the proportion of effluent that is collected would increase to55%. This means that 79 310 litres (55%) is collected and that 65 175 litres (45%) is illegally disposed of per household per year.

Given that the proportion of households using water-saving devices is unknown, the estimate of the amount of effluent disposed of illegally is somewhere between 56% and 45%,

An estimate of the total effluent illegally disposed of in the catchment for the 784 households each year is calculated as an average of the two situations (with and without water saving devices)

Estimate of average household effluent illegally disposed of in the catchment pa = 82 613

APPENDIX C

1 Tim Robertson, QC 'Government Intrusion into Citizens Rights to Bring Cases to the Court' from NCC Conference Proceedings Promise, Perception, Problems and Remedies; The Land and Environment Court and Environmental Law 1979-1999. Dec 1999 p 131

2 See Appendix B for discussion of the polluting impacts.

3 This assumes that half the households are using water saving devices. For calculations see Appendix B.

4Robert Greenwood, Group Manager Strategic Planning, BMCC, Memorandum to councillors entitled "Sewage Strategy: Queries re Effluent Volumes generated, contract and disposal issues" File No C01700 undated approx 14/2/01)

5The average occupancy rate for detached dwellings in the Blue Mountains is derived from the 1996 Census by ABS. 65 769 people lived in a total of 24 022 detached dwellings in the LGA which is an average of 2.73 people.

Cl:6.2(c) - BETTER LIVING DCP