The Society does not believe this development application should be approved for the following reasons:

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1 Development Application No: X/790/2016 Construction and use of a New Eco Cabin, Walkway, Deck and Toilet for use in conjunction with the Fairmont Hotel on Lot 1 DP and Lot 1 DP of 1 Sublime Point Road Leura The Society does not believe this development application should be approved for the following reasons: 1. The eco-cabin and most of the associated infrastructure are inappropriately sited on highly sensitive land zoned E2 Environmental Conservation. The land is unsuitable for any development because of its obvious physical constraints. Located on the rim of the escarpment above the northern end of the amphitheatre to the west of Isobel Bowden Ridge, the escarpment here is deeply dissected by headwater streams of an unnamed tributary of Jamison Creek. Almost the entire site is mapped by Council as very steeply sloping (33+ %) and unsuitable for any kind of development. The Blue Mountain City Council has acknowledged both the scenic value of the escarpment and its rugged nature with appropriate development constraints. Lot 1 DP where the cabin is under construction is 90.63% Protected Area-Escarpment Area and of the remaining land a further 5.38% of the total lot size has a Slope Constraint restriction on development. The impact of the very steep slope is clear in the plans of the development (S of EE Fig. 7) and in the accompanying photographs of Figure 5. Despite the statement that only the existing concrete piers of the original shed have been used to support the new cabin (S of EE p. 9) it is clear from Figure 7 that at least another set of piers have of necessity been placed on this very steep slope to support the deck of the eco-cabin and possibly another set at its entrance (though apparently with no impact on vegetation or soil!). There does not appear to be an accompanying engineer s report regarding slope stability in this location nor does there seem to be information on drainage provisions from the ecocabin and access road. The two upper photographs in figure 5 show very steep slopes dropping away immediately from the access track and under the viewing deck along the track but there does not appear to be any evidence of slope stabilisation provisions nor for that matter of any sediment and erosion control during construction, not even a silt screen. Erosion of exposed fragile soils on steep slopes and downstream sedimentation must be considered in the assessment of this D.A. 2. It is of concern that it is only on page 10 of the Statement of Environmental Effects that there is any acknowledgement that the site is environmentally sensitive land ( because it is zoned E2 ). The consultant however has argued away the need for a full, or indeed any, environmental assessment including flora and fauna studies and surveys for endangered species with the flimsy but often repeated statement that there is no removal of trees or vegetation involved in the works, negating the need for any flora or fauna studies (p.20 point 4.3). There is no acknowledgement and in fact there is denial that significant vegetation occurs on the site, and endangered species are not mentioned. However: 1

2 2.1 The vegetation of Lot 1 DP in the vicinity of this development has been mapped by the Blue Mountains City Council as Blue Mountains Escarpment Complex and Blue Mountains Swamps (Map 2). Both are listed under Schedule 6 of LEP 2015 as communities of Significant Vegetation: Blue Mountains Escarpment Complex consists of a distinctive set of vegetation communities that are found on escarpment edges and ravines, on both wet and dry cliff faces and on rock outcrops. The vegetation varies from heath to rainforest and is invariably associated with a range of plant species protected under the NSW Threatened Species Conservation Act 1995 and the Commonwealth Environmental Protection and Biodiversity Conservation Act Photographs accompanying the Statement of Environmental Effects (Figures 4 and 5) show that the Blue Mountains Escarpment Complex adjacent to the access road and the eco-cabin is Eucalypt Forest/Woodland that has an understorey of predominantly rainforest species and/or ferns of considerable diversity. It is also evident in the photographs of Figures 4 and 5 of the Statement and in available aerial photographs of the site from the last few years, that there has been clearing of this vegetation including the removal of an unknown number of the small tree Callicoma serratifolia and a range of ferns that possibly include Tree Ferns as well as other understorey plants, to allow for a larger cabin than the original shed (Fig. 4), the construction of a deck projecting beyond the cabin (Fig. 7), the widening of the track (see raw edges and fresh soil exposure in Fig. 5) and the construction of the off-track viewing platform which has required considerable removal of vegetation on a very steep slope as evidenced by the top left-hand photograph of Figure 5. 2

3 Clearly the statements in Point 3 section 3.1 of the Statement of Environmental Effects that indicate that there will be no vegetation removal for the elevated walkway or the construction of the eco-cabin are incorrect. Or do these statements actually mean that no further vegetation removal will occur because it has already happened Blue Mountains Swamps develop where local geology and hydrology encourages the water logging of soils. They play an important role in regulating stream flow and many ultimately contribute water to Warragamba Dam. A swamp that is large enough to be seen on an aerial photograph (Map 1) and to be mapped on BMCC vegetation maps (Map 2) and which is the source of a major headwater tributary of Jamison Creek is present in the development area. This swamp, among others in the region is listed as a Vulnerable Ecological Community under Blue Mountains Swamps in the Sydney Basin Bioregion in the Threatened Species Conservation Act 1995 and as an Endangered Ecological Community Temperate Highland Peat Swamps on Sandstone under the Environmental Protection and Biodiversity Conservation Act Furthermore it is possible that within this swamp will be found the following protected plant species Carex klaphakei (Endangered TSC Act), Eucalyptus copulans (Endangered TSC and EPBC Acts), Lepidosperma evansianum (Vulnerable TSC Act) and Pultenaea glabra (Vulnerable TSC and EPBC Acts), as well as the protected fauna species of Eulamprus leuraensis (Endangered TSC and EPBC Acts), Heleioporus australiacus (Vulnerable TSC and EPBC Acts) and Petalura gigantea (Endangered TSC Act). 3

4 It is of great concern therefore that the access track to the eco-cabin passes within a few metres upslope of this highly significant and threatened swamp community (Map 1). All runoff, sediment, pollutants and weed propagules present on or near the access track will follow the slope and natural drainage line into the swamp potentially causing waterlogging and collapse, weed invasion, changes to stream flow and other permanently degrading impacts. It is of even greater concern that the presence of a legislated threatened vegetation community is completely ignored in the Statement of Environmental Effects. 3.2 The Statement of Environmental Effects also fails to acknowledge biodiversity constraints of the development site (as it does all other constraints listed in Table 1 below from BMCC maps on-line) In the Statement of Environmental Effects on page 11 point 6.3, for example, is the incorrect statement that the site of the subject works is not mapped on the Natural Resources Biodiversity Maps 002H and 003C (as above) as either a vegetation constraint area or ecological buffer area. The proposal does not involve any clearing or removal of vegetation. Therefore it does not result in any impact on the surrounding bushland setting or areas specifically mapped for special consideration. However the vegetation constraint area noted in the above table and on the BMCC on-line map has in fact been impacted on by the eastern end of the access road Consideration of impacts on watercourses and riparian land is labelled as not applicable in point 6.8 on page 12 of the Statement because of distance of the development site from such land as marked by a blue splodge in the National Park on the relevant BMCC map. However as noted above the application completely ignores the presence of the Blue Mountains Swamp that drains into that watercourse some 10 metres downslope from the access road. The consultant cannot then argue that the watercourse will not be impacted on in any way by the eco-cabin and its associated infrastructure. 4

5 4. The development is not consistent with, or fails to consider, key provisions of the Blue Mountains LEP 2015 (BM LEP 2015) 4.1 The development is not consistent with the objectives of the E2 Zone The land on which the development is proposed is zoned under BM LEP 2015 E2 Environmental Conservation due to its high environmental values. The objectives of the E2 zone are: 1. To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. 2. To prevent development that could destroy, damage or otherwise have an adverse effect on those values. 3. To encourage land restoration works on disturbed bushland areas. 4. To restrict the development of private land that would be inappropriate because of physical characteristics or high bush fire hazards, but only where less restricted development is permitted elsewhere on the land due to split zoning. 5. To maintain biodiversity in the Blue Mountains. The Society believes the proposed development is not consistent with the objectives of the E2 Zone. The development does not satisfy objective 1 as it does not protect the natural values of the area (as described above), and construction works so far have in fact destroyed and damaged those values (objective 2). The land is steeply sloping, is adjacent to watercourses, and is within an area mapped as having significant vegetation. Therefore objective 3 is also not satisfied, as the development is in fact occurring on private land that is inappropriate because of physical characteristics. 4.2 Parts of the development are not permissible in an E2 Zone Development permissible on land zoned E2 is very restrictive under BM LEP The Society does not believe that the major components of the development are legally permissible in an E2 zone. The development permitted without consent in an E2 zone includes environmental protection works and home occupations. Development permitted with consent includes dwelling houses (in very limited circumstances which do not apply in this instance); environmental facilities; flood mitigation works; and roads. All other types of development are prohibited in E2 zones. The proposed works are described as a cabin, which at 5.8m by 3.6m is the size of a large bedroom, with a substantial deck. The cabin is fully enclosed and is of a quality construction it is not an open sided picnic shelter or a basic bushwalkers shelter. The cabin includes a full bathroom (bath/shower, sink) according to the plan, including a toilet. The cabin is to be fully serviced by electricity and by mains water and sewer via an underground conduit along the road. The raised walkway s sole purpose is to facilitate access to the cabin (ie it does not provide access to other facilities such as a walking track). The separate but nearby observation deck is also large (4 X 6m) and includes a nearby toilet connected to mains sewer. Given the size, facilities, build standard and services being connected to the cabin it is the Society s view that the cabin is being constructed for the purposes of offering temporary accommodation on a commercial basis to visitors and tourists. The Society is also concerned given the investment 5

6 in widening and clearing the pre-existing walking track to a dirt road and given the services being placed underground along the road to service the cabin, that this cabin is in fact the first of many the Fairmont are planning to build in the E2 zone. The Dictionary to the LEP 2015 defines environmental protection works as works associated with the rehabilitation of land towards its natural state or any work to protect land from environmental degradation, and includes bush regeneration works, wetland protection works, erosion protection works, dune restoration works and the like, but does not include coastal protection works. Clearly, a cabin, raised walkway, observation deck and an associated toilet are not environmental protection works, as defined under the BMLEP The Dictionary to the LEP 2015 defines environmental facility as a building or place that provides for the recreational use or scientific study of natural systems, and includes walking tracks, seating, shelters, board walks, observation decks, bird hides or the like, and associated display structures. In the Statement of Environment effects the consultant Andrew Martin Planning claims that the eco-cabin is permissible with consent as it is an environmental facility (S of EE p. 1). The cabin is described as a small or low key environmental facility and the new deck and amenities are constructed to provide a more formalised rest and shelter for families and guests (S of EE p.21). To this end apparently, water, electricity and toilets are being provided but there is virtually no available detail on sewage treatment or drainage (On page 10 is the curious statement that It can be connected to sewer not that it will be connected. What does this mean for effluent disposal at the site?) In the Society s view the cabin and walkway are not an environmental facility as defined under the BM LEP The definition does include shelters but clearly the cabin is not a shelter within the common usage of the term such as an open sided picnic shelter. While boardwalks are included in the definition of environmental facility, as the proposed boardwalk leads exclusively to the cabin and its sole purpose is to provide access to the cabin, it should therefore should be seen as part of the cabin development, and not separate from it. The Society believes that the cabin is clearly an eco-tourist facility. An Eco-tourist facility is defined in LEP 2015 as a building or place that: (a) provides temporary or short-term accommodation to visitors on a commercial basis, and (b) is located in or adjacent to an area with special ecological or cultural features, and (c) is sensitively designed and located so as to minimise bulk, scale and overall physical footprint and any ecological or visual impact. The cabin and walkway are clearly an eco-tourist facility, designed and built for the purposes of temporary or short-term accommodation to visitors on a commercial basis. It s clearly not designed for day use only (it has a full bathroom) or as a temporary bushwalkers shelter from wind, rain and sun. It also cannot be argued that an eco-tourist facility comes within the definition of environmental facility as the term is specifically excluded from the definition of environmental facility, and the fact that eco-tourist facility is separately defined in the LEP. This indicates a clear intention in the LEP that environmental facility has a different meaning to eco-tourist facility (see Roden v 6

7 Bandora Holdings Pty Ltd (2015) NSWLEC December 2015). The fact that eco-tourist facilities are specifically NOT included as a development permitted with consent in an E2 zone means that the eco-cabin and the associated walkway is a prohibited development under the LEP. It is the Society s view that development consent therefore cannot legally be issued for the ecocabin and walkway, and the construction works undertaken so far must be removed and a rehabilitation order must issued by Council. Similar issues arise in relation to the toilet associated with the observation deck. While observation decks do come within the definition of environmental facilities, toilets do not. The toilet does not provide recreational use of natural systems as does the other examples provided in the definition such as walking tracks, seating or bird hides the natural area around the boardwalk can be enjoyed without a toilet and a toilet is not essential to enable the recreationally use of the area. It is Society s view that development consent therefore cannot legally be issued for the toilet associated with observation deck, as it is a prohibited development under the LEP. Any construction works in relation to the toilet undertaken so far must be removed and a rehabilitation order must be issued by Council. 4.3 Failure to consider Clause Heritage values The development application states the site does not contain a heritage item. This is incorrect. The Gladstone Pass Walking Track is listed as a heritage item on Schedule 5 of the LEP 2015 (LA039). Clause 5.10 of the LEP therefore applies, requiring consideration of the effect of the proposed development on the heritage significance of the item in this case the Gladstone Pass Walking Track. The development has directly impacted on the trackhead to Gladstone Pass and the road, cabin, walkway, and observation deck and toilet has significantly impacted on the heritage and scenic values of the track, including those associated with the approaches to the track, at the commencement of the track and from the track itself. None of these heritage issues have been assessed or considered in the development application. There are also real concerns that if further development is approved that public access to Gladstone Pass (apart from guests of the Fairmont) will either be impeded, or actively discouraged. The Society understands that the original development consent for the Fairmont Resort required that the resort allowed continued unrestricted public access to the existing walking tracks in the area, including Gladstone Pass (see Smith, J., The Blue Mountains mystery track: Lindeman Pass, 1990). The old shed was demolished to make way for the cabin. Described as a shed housing a disused pump, it was associated with a nearby small dam on the creek (see Smith, J., The Blue Mountains mystery track: Lindeman Pass, 1990). The shed pre dates the construction of the Fairmont (ibid), and is of unknown age. It may have had heritage values and may have been associated with the historic Gladstone Colliery, also listed as a heritage item in the LEP 2015 (LA007). No research or heritage assessment appears to have been undertaken prior to the demolishen of the shed. 4.4 Failure to consider Clause 6.8 Protected area riparian lands and watercourses The development application does not address adequately the requirements of Clause 6.8 of the BM LEP The Society believes this clause applies as the development occurs on land that is within 40 metres of the top of the bank of a watercourse. The development application states that the development is 100metres from a watercourse this is not correct. 7

8 The objectives of the clause includes protecting (a) water quality within watercourses (b) the stability of the bed and banks of watercourses, and (c) aquatic and riparian habitats. Consistent with the clause, Council in deciding whether to grant development consent must consider whether or not the development is likely to have any adverse impact on issues such as the water quality and flows within the watercourse, aquatic and riparian species, habitats and ecosystems of the watercourse, and the stability of the bed and banks of the watercourse. The objectives of the clause and the issues which must be considered either have not been addressed or not adequately addressed in the development application (see P12 of the SOEE). The Society also believes the development is not consistent with objectives of the Clause. 4.4 Failure to consider Clause 6.6 Protected area vegetation constraint area The development application does not address the requirements of Clause 6.6 of the BM LEP 2015, claiming the clause does not apply (SOEE p11). The Society believes this clause applies as the development occurs on land that is the site of a significant vegetation community or rare species of flora. Significant vegetation communities are defined as the vegetation communities described in Schedule 6. Two scheduled vegetation communities are mapped as occurring on the over the majority of the site - 5B Blue Mountains Swamp and 7 Blue Mountains Escarpment (see Council mapping above). The objectives of Clause 6.6 include the following (a) to identify and require assessment of vegetation that is likely to be a significant vegetation community, (b) to protect significant vegetation communities and vegetation that is fauna habitat or part of a wildlife corridor, (c) to ensure development is designed, sited and managed to avoid or mitigate any adverse environmental impact on any significant vegetation community and the ecological buffer required to protect that significant vegetation. Council in granting development consent must be satisfied that the development incorporates effective measures, including an adequate ecological buffer to protect significant vegetation communities and to regenerate any disturbed native vegetation on the site area. The objectives of the clause and the issues which must be considered have not been addressed at all in the development application (see P12 of the SOEE). The Society believes the development is also not consistent with objectives of the Clause. 4.5 Failure to consider Clauses 6(2), 6(3) and 6(6) Impact on environmentally sensitive land The Society believes Clauses 6(2), 6(3) and 6(6) of BM LEP 2015 apply because the development is occurring on land: that is zoned E2 and is therefore environmentally sensitive land (Clause 6(2)) where significant vegetation communities exist (Clause 6(6)); which is adjacent to Blue Mountains National Park (Clause 6(3)); where significant natural features, including rock outcrops, rock ledges and cliffs exist (Clause 6(6)); The SOEE (p10/11) either does not address or does not adequately address the requirements of Clauses 6(2), 6(3) and 6(6) of BM LEP The Society believes Clause 6(6) in particular cannot 8

9 be satisfied as the development will have adverse impacts on significant vegetation communities, local hydrology, watercourses and swamps, and significant natural features, including rock outcrops, rock ledges and cliffs. 5. Failure to assess and consider the impacts of the tree removal and vegetation clearing associated with the construction of the dirt road The survey plan on Page 2 of the SOEE clearly shows the original walking track which bisected the lot and allowed access to Gladstone Pass. 9

10 The original walking track traversed the lot, and has been described by Society members familiar with the area before the road was constructed, as a typical Blue Mountains single file walking track. The following aerial photo taken in 2010 shows the track network prior to the fire trail/road construction, including the trailhead for Gladstone Pass. However, the description of the proposal does not include the construction of the dirt road, and the SOEE does not assess the impacts or references the dirt road construction. The SOEE merely states existing fire trail recently maintained. In fact until recently there was no fire trail/dirt road only a walking track. The dated aerial photos below from Near Map show the area when the original walking track existed (2010), and later after the dirt road was constructed (2014), as well as this year (2016 Google Maps). The photos clearly show the large amount of vegetation removal which occurred when the dirt road was constructed through the E2 zone. 10

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12 The Society is not aware of a development application being lodged by the Fairmont for the construction of the fire trail/dirt road and is therefore concerned that the dirt road was constructed (sometime between 2010 and 2014) without development assessment or approval. If no development consent was granted by Council for the construction of the road the Society believe the current development application should be amended to include the road construction, including a full assessment of the environmental impacts of its construction and ongoing maintenance and use. This should include, but not limited to, the impacts from vegetation removal, including removal of regionally significant vegetation; impacts on watercourses and swamps including from sedimentation and runoff; heritage impacts on Gladstone Pass; and impacts on scenic values. The Society also questions the characterisation of the dirt road as a fire trail in the SOEE. The Society questions whether the road is wide enough for RFS trucks to use, and there also does not seem to be sufficient space at the end for fire trucks to turn around and exit. The construction of the dirt road and its use to access the site of the cabin and viewing platform, including the fact that water and electricity services are being delivered underground along the road, suggests the road was constructed to aid the development of and to allow vehicle and other access to the cabin and viewing platform, rather than its use as a fire trail. 6. Construction of part of the dirt road into the national park. The survey plan on Page 2 of the SOEE clearly shows that the new dirt road encroaches into the national park. It is an offence to damage or remove vegetation, rock, soil etc from a national park (sec 156A of the National Parks and Wildlife Act (NPW Act)), without approval from the National Parks and Wildlife Service (NPWS). The Society is not aware if the Fairmont applied for, or received approval from the NPWS for the section of the road which encroaches into the national park. NPWS can issue leases and licenses to commercial businesses and individuals over land within a national park but only for certain purposes (sec 151A NPW Act). These purposes include the provision of facilities for visitors or tourists within a national park, including for instances accommodation such as cabins within the national park and retail outlets/kiosks within a park. However the key criteria is that the lease must relate to the provision of visitor facilities within the national park. In this instance, the road is to commercial tourism facilities outside the national park on private land. Another important limitation placed by the courts (for instance the Simon University case and the Stealth Film case) is a strict requirement that the purpose of the lease and license must be consistent with the objectives of the NPW Act, and the statutory management objectives of national parks (sec 151 and 151A NPW Act). The Society believes that a road to commercial tourism facilities outside the national park on private land is not a purpose in fact consistent with the objectives of the Act or the statutory management objectives of national parks. For these reasons the Society therefore believes that a lease or license cannot be legally issued under sec 151A of the NPW Act to the Fairmont for the construction and ongoing use of the section of the dirt road that is within the national park. This section of the road therefore should not be given development consent by Council, and should be rehabilitated. 12