746 Greendale Road Greendale Pty Ltd v Liverpool City Council

Land and Environment Court (NSW)|2023-06-01

The Applicant seeks leave to rely upon further versions of its BDAR

Following the conclusion of the oral evidence of the Parties' expert ecologists, and at the conclusion the third day of the hearing, the Applicant sought leave to have its expert prepare a further amended version of its BDAR between the conclusion of the third day of the hearing and the commencement of the fourth and final day set down for the hearing.
Noting that this would require additional consideration of the Applicant's further amended BDARs by the Respondent's expert ecologist Dr McLean, in circumstances where he had already undertaken such a task in relation to the Applicant's amended BDAR and retrospective BDAR. Due to significant time constraint during the hearing, and further noting that Dr McLean had prepared a supplementary expert report to assist the proceedings, the Court indicated that it was not minded to grant the leave sought. That application for leave was formally withdrawn by the Applicant.
Further, and also following the conclusion of the testimony of the Parties' expert ecologists at the hearing, the Applicant sought to tender a further version of its BDAR into evidence for the Court to consider in determining the appeal.
The Respondent objected to the tender, noting that the Applicant's further amended BDAR contained no changes with respect to the assessment of the potential impacts of the Proposed Development on Cumberland Plain land snails such that, consistent with the evidence provided by its expert Ms Dalby-Ball, the BDAR even if admitted into evidence at that late stage would remain deficient in respect of the provisions of ss 7.13(2) and 7.16 of the BC Act.

The Applicant requests the Court adjourn proceedings to permit a further revision of its BDAR.

At the conclusion of the hearing the Applicant sought that the proceedings be adjourned to a future date to allow it to prepare further amended documentation in relation to the assessment of potential impacts on biodiversity values and to facilitate consideration of this material by the Parties' expert ecologists including the opportunity for further oral evidence from those experts.
Noting that the Court had already provided the Applicant with the opportunity during proceedings to amend its BDAR, and the Respondent's facilitation of its expert's assessment of this material, and further noting the comment by the Applicant's expert, Ms Dalby-Ball, that the mitigation of potential impacts on CPW CEEC and Cumberland Plain land snails may require alteration to the design of roads in the Proposed Development, the Applicant's request was denied because, in the Court's assessment: 1. the Applicant had already been afforded significant opportunity and procedural fairness to address the shortcomings of its BDAR documentation during the hearing; 2. the Respondent and its expert ecologist had already responded generously to the requests of the Applicant during the proceedings, and it would be unreasonable to ask the Respondent to incur the further costs and delays associated with agreeing to the Applicant's request for an adjournment; 3. it was uncertain, given the nature of any further required changes to the design of the Proposed Development as to whether changes that may be made by the Applicant, including road design, as identified by Ms Dalby-Ball as being likely (see above at [47]), might give rise to further assessment needs, in relation to, for example, traffic matters; and 4. it would not be consistent with the just, cheap, and quick principles applied by the Court for resolution of proceedings that the Applicant's request be granted.

The Orders appeal

I have already made findings in this judgment that the Proposed Development, as amended, should not be approved
As noted above (at [7(1)]) it was the Respondent's submission unopposed by the Applicant, that if the Applicant's appeal were determined by way of refusal, then the orders appeal should be determined such that the orders against which the Applicant has also appealed, be confirmed with the date for compliance with the orders also confirmed as requiring completion within 60 days of the handing down of the judgment.
I accept that this is a reasonable outcome, not opposed by the Applicant, and so I agree that an order should be made to this effect, pursuant to the provisions of s 8.18(4)(b) of the EPA Act.

Conclusions

On the basis of my assessment and conclusions above in this judgment, I am satisfied that, having regard to the matters in s 4.15(1)(b) - (e) of the EPA Act, the Proposed Development should not be approved because: 1. I am not satisfied that: 1. the Applicant's biodiversity development assessment report (BDAR), which it is required to supply consistent with the terms of the ss 6.15 and. 7.13(2) of the BC Act meets the requirements of those section of the BC Act; 2. the Applicant's BDAR has correctly considered all potential impacts of the Proposed Development, including in relation to the calculation of biodiversity credits required to offset those potential impacts; 3. the Applicant has adequately assessed potential impact of the Proposed Development in relation to koalas and koala habitat as required under the provisions of cl 4.9 of SEPP B&C; 4. the Applicant has adequately assessed, including in relation to its BDAR, the potential impacts of the Proposed Development on the vegetation of riparian lands and waterways on the Subject Site, and any proposals for the mitigation of such impacts; 5. the Appliant has assessed potential impacts of proposed vegetation clearing to establish required bushfire APZs on Cumberland plains woodland, a critically endangered ecological community. 1. On the basis of the above (at [70(a)]), I am also not satisfied that the Proposed Development would not have a serious and irreversible impact on the Cumberland Plain land snail; 1. I am not satisfied that the Proposed Development has avoided and minimised impacts of a Cumberland woodland endangered ecological community; 2. I am not satisfied that the matters in cl 7.6(a) to (c) of LLEP in relation to environmentally significant land can be considered on the basis of materials constituting the Applicant's development application, as requited under cl 7.6; and 3. I am not satisfied that the likely impacts of the Proposed Development, particularly in relation to threatened species, being the Cumberland land snail, can be properly considered in the evaluation of the Applicant's DA as required under the provisions of s 4.15(1)(b).
Having concluded that the Proposed Development should not be approved for reasons identified above (at [70]), it is not necessary for me to resolve the remaining contentions in the appeal in relation to traffic and potential contamination of the Subject Site.
As a consequence, and noting my conclusion also above (at [69]) in relation to the orders appeal, the Court is able to make the following orders.

Orders

In Proceedings 2022/234271, the Court orders that: 1. The appeal is dismissed. 2. The Applicant's development application No. DA-688/2022 seeking consent for use of land for a landscape supplies business and associated works at 746 Greendale Road, Greendale, is determined by way of refusal. 3. The exhibits are returned, with the exception of exhibits A, B, C , D, E and 1.
In Proceedings 2022/77111, the Court orders that: 1. The appeal is upheld. 2. Pursuant to the provisions of s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, Development Control Order NO-973/2021 is modified such that the period for compliance with Development Control Order NO-973/2021 is modified to read: "The Development Control Order must be complied with from the 16th of September 2023".

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2023

Has the Applicant provided a Biodiversity Development Assessment Report that satisfies the statutory requirements for such a document under the provisions of ss 7.13(2) and 6.15(1) of the Biodiversity Conservation Act 2016 and the Biodiversity Conservation Regulation 2017?

The Applicant provided a BDAR within its amended DA, prepared by Ecological Consultants Australia (trading as Kingfisher Urban Ecology and Wetlands) dated March 2023, in satisfaction of the statutory requirements for such a document under the provisions of: 1. Section 7.13(2) of the BC Act (see above at [17(4)(e)]) which requires that: 1. When determining the DA, which is an application made in accordance with the EPA Act, the consent authority, or the Court on appeal, is to take into consideration under that EPA Act the likely impact of the Proposed Development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application; and 2. The consent authority, or the Court, may (but is not required to) further consider under the EPA Act the likely impact of the Proposed Development on biodiversity values. 1. Section 6.15(1) of the BC Act (see above at [17(3)(b)]) which requires that a biodiversity assessment report cannot be submitted in connection with a relevant application unless the accredited person certifies in the report that the report has been prepared on the basis of the requirements of (and information provided under) the biodiversity assessment method as at a specified date and that date is within 14 days of the date the report is so submitted; and 2. Clause 6.8(f) of the BC Regulation (see above at [18(3)]) which requires that a BDAR must include details of the accreditation of the person preparing the report and of the qualifications and experience of any other person commissioned to conduct research or investigations that are relied on in preparing the report.
The biodiversity values to which the provisions of cl 7.16(2) refer are those in s 1.5 of the BC Act (see above at [17(2)]) and cl 1.4 of the BC Regulation (see above at [18(1)]: and 1. in terms of the BC Act, biodiversity values include vegetation integrity, habitat suitability and any other values identified in the BC Regulation; and 2. clause 1.4 of the BC Regulation also identifies additional matters as being biodiversity values, including the following: (a) threatened species abundance - being the occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site, ….. (d) threatened species movement - being the degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle,
The Parties expert ecologists provided a joint report and oral evidence at the hearing in relation to this and other matters concerning potential biodiversity impacts. At the hearing Dr McLean appeared in person, and the Applicant's expert, Ms Dalby-Ball, provided her evidence via audio-visual link (AVL) as she was located in the United States of America.
Within their joint report tendered as evidence at the hearing (as Exhibit 5), the Respondent's expert ecologist, Dr McLean, had commented, and the Applicant's expert ecologist, Ms Dalby-Ball, had conceded, that the Applicant's BDAR had not been prepared consistent with the timing requirements of s 6.15(1) of the BC Act (see above at [25(2)]), and was, therefore, invalid for the purposes of determining the DA.
More specifically, cl 6.15(1) requires that any BDAR submitted in relation to a development application must be prepared on the basis of the requirements of the NSW Department of Planning, Industry and Environment Biodiversity Assessment Manual 2020 (BAM Manual) at a specified date and within 14 days of the date of submission of the BDAR. Ms Dalby-Ball confirmed that the BDAR had not been so prepared, and that in order to be valid, the calculations concerning biodiversity impacts and offsetting under the BAM would need to be re-done and added to an amended BDAR.
Ms Dalby-Ball further conceded during her oral evidence that her accreditation to prepare the BDAR and certify its contents under the BAM had lapsed in March 2023, and that no accredited person had certified the Applicant's BDAR, further invalidating the Applicant's BDAR for the purposes of determining the Applicant's DA in the appeal.
Notwithstanding other technical deficiencies in the BDAR identified by Dr McLean, and conceded to by Ms Dalby-Ball, as discussed in more detail below: 1. the Applicant: 1. sought leave to undertake work during the course of the hearing to rectify the identified deficiencies in its BDAR in terms of both its content and to ensure that the BDAR was correctly certified as required under cl 6.8(f) of the BC Regulation and s 6.15 of the BC Act; 2. noted that it would provide two documents in response to the identified deficiencies in its BDAR, being: 1. an updated version of its BDAR assessing the prospective elements of its Proposed Development and required biodiversity offsets; and 2. a retrospective BDAR to address the assessment of works undertaken without consent but for which it now seeks consent as part of its DA; 1. the Respondent, while not opposing the grant of leave as requested by the Applicant, noted the availability constraints of its expert ecologist, and the timelines for completion of the hearing, along with the time required for Dr McLean to review and comment on the further BDARs within a supplementary expert report.
In response to the matters identified above (at [31]): 1. the Applicant proceeded to tender two further BDARs (as anticipated above at [31(1)(b)]) during the second day of the hearing, in relation to which: 1. the documents each contained a document control sheet indicating that the authors of the BDARs were Geraldene Dalby-Ball, Luke Johnson, Myrna Calumpong and Brooke Thompson; and 2. both reports were signed by Geraldine Dalby-Ball. 1. The Respondent's expert ecologist, Dr McLean, in response to a direction from the Court, undertook to review these documents and to provide to the Parties, by the commencement of the third day of the hearing, a supplementary expert report containing the results of this review so that these assessments could be considered by the Applicant's expert ecologist prior to the experts being called to give their oral evidence at the hearing on the afternoon of the third day of the hearing.
Following the tendering of the Applicant's amended BDARs, and noting the listed authors of the BDAR, the Applicant sought to add to each document a certification as to the compliance of each BDAR with the provisions of s 6.15 of the BC Act and the requirements of the BAM. This certification was provided by Ms Kat Deuchatel (BAM Assessor Accreditation no. BAA17054). The certification page provided by Ms Deuchatel was added to each of the tendered BDARs, which became Exhibits J and K in the proceedings, and it was in the following form: "I, Kat Deuchatel, certify that this report has been prepared based on the requirements of, and information provided under, the Biodiversity Assessment Method and clause 6.15 of the Biodiversity Conservation Act 20156 (BC Act)".
Within his supplementary expert report, which became Exhibit 8, Dr McLean identified that: 1. the BAM manual, which was the version current at the time of preparation of the Applicant's amended BDARs, and which remains current at the time of this judgment, requires under its clause 1.3 that: "1. Biodiversity Assessment Reports (BARs), which set out the outcomes of an assessment, must be prepared by a person accredited under Section 6.10 of the BC Act. An accredited person is referred to as an assessor." 1. while Ms Deuchatel was recorded as the assessor who had prepared the BAM calculator (BAM-C) reports that formed appendices to the Applicant's BDARs, she was not listed as an author of the BDARs. As a consequence, Dr McLean said that, in his opinion, the BDAR remained formally uncertified.
In closing, the Respondent, consistent with the opinion of Dr McLean, submitted that: 1. it was common ground between the Parties that the Applicant was required to provide a valid BDAR in relation to its Proposed Development under the provisions of s 7.13(2) of the BC Act. 2. the certification of the Applicant's BDARs provided by Ms Deuchatel did not state that Ms Deuchatel, or any other specific person, had prepared the BDARs. 3. none of the people listed as being authors of the Applicant's further BDARs were identified as holding the requisite accreditation in relation to certifying the BDARs. 4. as confirmed by Ms Dalby-Ball (see above at [30]), and as conceded by the Applicant, during the hearing, Ms Dalby-Ball, who is identified as the lead author of the BDARs, was not an accredited person for the purposes of certifying the BDARs at the time of their preparation, including at the time of the hearing. 5. section 7.13(2) of the BC Act requires that the consent authority, or the Court on appeal, when determining in accordance with the EPA Act, that any such application is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the BDAR; and further 1. section 6.12 of the BC Act confirms that, for the purposes of the biodiversity offsets scheme, a BDAR is a report "prepared by an accredited person in relation to proposed development or activity that would be authorised by a planning approval"; 2. s noted by Dr McLean, clause 1.3 of the BAM manual requires that BDARs must be prepared by a person accredited under Section 6.10 of the BC Act (see above at [34(1)]); 3. the Applicant's BDARs had not been prepared by an accredited person, and so consequently, were not BDARs as required under the provisions of s 7.13(2) of the BC Act and could not satisfy the requirements of that section of the BC Act; and 4. the Court would be unable to complete the considerations required under s 7.13(2) of the BC Act to determine the appeal.
In its closing remarks, the Applicant submitted that: 1. the required certification of the BDAR, like a requirement for owner's consent for a development application, is able to be provided at any point in the evaluation of the application up until the point, on appeal, that final orders are made by the Court. 2. the provision of the certification of the BDARs by Ms Deuchatel established jurisdiction such that the Court was able to move past the jurisdictional requirements of the BC Act in relation to the Applicant's BDARs and could the address the merits contentions identified by the Respondent. 3. the adequacy of the BDAR certification provided by Ms Deucahtel was similar to matters considered by the Court of Appeal concerning certification of construction certificates in Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (2021) 247 LGERA 62; [2021] NSWCA 2, and in relation to jurisdictional facts for the purposes of the EPA Act in El Kouri v Gemaveld Pty Ltd [2023] NSWCA 78.
I have considered the evidence of the Parties' ecology experts, notably that of Dr McLean provide above (at [34]), along with the Parties' submissions (above at [35] and [36]), I have concluded that: 1. I accept that the certification of the Applicant's amended BDARs by Ms Kat Deuchatel (see above at [33]) is acceptable for the purposes of satisfying the provisions of s 6.15 of the BC Act in relation to the currency of the Applicant's BDARs because, the terms of the certification refer specifically to the report being prepared on the basis of the requirements of the BAM and in relation to the provisions of s 6.15 of the BC Act; 2. I agree with the submission of the Respondent, that the certification does not satisfy the provisions of s 6.12 of the BC Act, which extend beyond matters concerning the currency of a BDAR, adequately certified by Ms Deuchatel, and which require that a BDAR is a report "prepared by an accredited person" in relation to a proposed development; in relation to which: 1. Ms Deuchatel is specific in relation to the certification she provides and that only relates, in my assessment and in her words, to the matters in s 6.15 of the BC Act concerning the currency of the BDARs; 2. Ms Deuchatel does not state, nor certify, that she, as an accredited person, has prepared either the Applicant's amended BDAR concerning prospective works, or its retrospective BDAR, as required under s 6.12. In my assessment, there is a difference between certifying that an accredited person has prepared a BDAR and certifying that the BDAR has been prepared, possibly by a non-accredited person/s, in a manner consistent with the BAM along with certifying the currency of the BDAR; 3. there is no indication that any of the authors of the BDAR, clearly identified on the document control page of each document, and who in my assessment, are those individuals who have prepared the BDARs, are an "accredited person" for the purposes of the BC Act; and 4. the accreditation of the lead author of the BDARs, who is the Applicant's expert ecologist in the proceedings, Ms Dalby-Ball, by her own concession during the hearing, had lapsed at the time that the BDARs had been produced, both in terms of the original BDAR and the Applicant's amended and retrospective BDARs tendered into evidence at the hearing.
Based on by conclusions above (at [37]), I am satisfied that the Applicant has not provided a BDAR that is of a form that: 1. would satisfy the provisions of clause 1.3 of the BAM Manual and s 6.12 of the BC Act requiring that the Applicant's BDARs had been prepared by an accredited person; and therefore 2. that the BDARs could be relied upon for the purposes of cl 7.13(2) of the BC Act.
Notwithstanding this conclusion, and should I be wrong in relation to adequacy of the Applicant's certification of its BDARs, I will consider the remaining merits contentions in relation to the potential impacts of the Proposed Development on biodiversity value on the Subject Site as if the BDAR were correctly prepared by an accredited person under the BC Act.

Has the Applicant's Biodiversity Development Assessment Report correctly considered all potential impacts of the Proposed Development, including the calculation of biodiversity credits required to offset those potential impacts;

As noted above, the Parties' expert ecologists had agreed in their joint report (Exhibit 5) that the Applicant's BDAR was deficient with respect to its consideration of the Proposed Development's potential impacts on biodiversity values on the Subject Site. These agreed deficiencies included: 1. the lack of consideration of potential serious and irreversible impacts of the Proposed Development in relation to the Cumberland Plan Woodland in the Sydney Bioregion Critically Endangered Ecological Community (CPW CEEC), and particularly as it concerned unauthorised clearing for which the Applicant seeks retrospective approval. 2. the inadequate documentation of efforts to avoid and minimise potential impacts on biodiversity values in the design of the Proposed Development, including in relation to bushland, wildlife corridors and other natural habitats. 3. the inadequate assessment of impacts of unauthorised clearing and other works in relation to riparian areas and waterways, including in relation to sedimentation due the breach of sediment fencing. 4. the inadequate assessment of the Proposed Development on koalas and koala habitat as required under the provisions of cl 4.9 of SEPP B&C. 5. the inadequate assessment undertaken in relation to the provisions of cl 7.6 of LLEP in relation to environmentally sensitive land and unauthorised clearing of vegetation that may have taken place prior to the assessment as reported in the Applicant's original BDAR. 6. the inadequate assessment of clearing and vegetation management required for the establishment and maintenance of bushfire related APZs, including in relation to any required impacts on CPW CEEC areas. 7. the inadequate scope identified for any proposed vegetation management plan that may be required as part of any conditions of consent or offsetting arrangements proposed in relation to the Proposed Development.
The Applicant submitted that, consistent with the findings of Preston CJ in Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 (at [35]) that, in undertaking a merit determination of an application, it is irrelevant to enquire into whether the owner of the land has in the past acted or used the land unlawfully.
However, the Applicant also conceded that, consistent with the further conclusions of Preston CJ in Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345 ;[2018] NSWLEC 207 (at [128] and [129]), citing King CJ in Kouflidis v Salisbury City Corporation (1982) 29 SASR 321 (at [324]), arguments based on applications seeking to take advantage of unlawful existing works and use are to be rejected.

(2006) 144 LGERA 408

(2018) 235 LGERA 345

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