Aesthete No.9 Pty Limited v Blue Mountains City Council

The Applicant sought to modify the 2017 consent

1. The Applicant applied to modify the development consent granted for DA S/45/2015. The application to modify the consent (SM/45/2015.A) was refused by the Respondent. The Applicant appealed that decision to the Court pursuant to s 8.9 of the EPA Act.
2. The Court assigned the matter to a conciliation conference under s 34 of the LEC Act and arranged for the conciliation conference to be presided over by Commissioner Chilcott.
3. A s34 conciliation conference provides for 'confidential without prejudice', discussions between the parties, and in particular, between the nominated experts for the parties.
4. The nature of the 'confidential without prejudice' discussion phase of a s34 conference means that there is no recording nor transcript of what transpired during the discussions between the parties.
5. The parties reached an agreement at the conciliation conference.
6. The presiding member of a conciliation conference is required, if there is an agreement, pursuant to s 34(3), to dispose of proceedings in accordance with the parties' decision if, and only if, the decision is one that the Court could have made in the proper exercise of its functions. The functions the Court is exercising are those of a consent authority. In the majority of occasions, the consent authority is the council of the local government area in which the proposed activity would, if approved, be carried out. The Court is not a consent authority, but for the purposes of an appeal, the Court exercises those functions of a council relevant to determining an application.
7. A modification application to amend a consent may be in respect of a particular proposed change in the consent and/or specific conditions.
8. Application to modify an existing consent is provided for by the provisions of s 4.55 of the EPA Act of which the following are germane in the current matter: 4.55 Modification of consents - generally (cf previous s 96) … (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
9. Section 4.55(4) is essentially terminological in that a successful application does not result in the granting of a new development consent, rather those aspects of the modification which were successful, modify the original development and all other components of the consent as it was before the determination remain in effect and unchanged. If a modification application is unsuccessful, then the whole of the existing consent and conditions continue to operate.
10. In determining an application for modification, the consent authority must take into consideration relevant matters referred to in s 4.15(1) of the EPA Act. 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
11. The relevant environmental planning instrument is LEP 2015. The modification application was made after the commencement of LEP 2015 and the saving provisions of cl 1.8A no longer operate, and even if they did, only apply to a development application and not to an application to modify a consent.
12. The decision involves the Court exercising the function under s 4.55 of the EPA Act to approve the Applicant's modification application. The Court must be satisfied that any jurisdictional requirements have been satisfied before it has the power to modify the consent.
13. The parties identified the jurisdictional prerequisites about which the Court was to be satisfied as those arriving from the provisions of s 4.55(2) and (3) of the EPA Act (see [7] of Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 1178 (Aesthete 2)).
14. The Applicant explained how the jurisdictional prerequisites had been satisfied: "(1) in relation to the requirements of s 4.55(2)(a) of the EP&A Act,: (a) the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted because: (i) the development consent that is the subject of the modification application in this appeal was for a residential subdivision of one lot into seventeen lots, on a site of an [area] of 3.25Ha, with associated draining and civil works; (ii) under the modification application, the consent would remain a consent for a residential subdivision, on a site with an area of 3.25Ha, with associated draining and civil works, although the subdivision would be for the subdivision of one lot into twenty-one lots; (iii) the essence of the development consent as originally granted would remain substantially the same, from the both quantitative and qualitative perspectives, notwithstanding the increased intensity of development that would result from the modification to the layout of lots at the western end of the Subject Site; (b) the consent as originally granted has not previously been modified; (2) in relation to the requirements of s 4.55(2)(b) of the EP&A Act, the Parties confirmed that the NSW Rural Fire Service (RFS) has been consulted in relation to conditions imposed as a consequence of a concurrence issued by it and through the provision of general terms of approval. They further confirmed that the requirements of s 4.55(2)(b) of the EP&A Act had been satisfied through the issue of an authority by the NSW RFS following the provision of a bushfire assessment report that had been prepared by a suitably qualified bushfire consultant; (3) in relation to the requirements of s 4.55(2)(c) of the EP&A Act, the Parties confirmed that the modification application had been appropriately notified in accordance with the provisions of this section; (4) in relation to the requirements of s 4.55(2)(d) of the EP&A Act, the Parties advised that one submission received in response to the notification of the proposed modification application, and that this had been considered by them in reaching their agreement in this appeal. (5) in relation to the provisions of s 4.55(3) of the EP&A Act, the Parties confirmed that: (a) consideration had been given to the matters referred to in s 4.15(1) of the EP&A Act, and they were satisfied that the provisions of that section had been satisfied, including in relation to the potential impacts of the proposed development, in particular in relation to ecology and stormwater. They added that these potential impacts had been assessed by experts as acceptable, or had been made the subject of amended conditions of consent, attached hereto at Annexure 'A', and that these were acceptable to the Parties; (b) the reasons given by the consent authority for the grant of the consent that the Applicant seeks to modify have been taken into consideration, including the zoning of that part of the Subject Site that is the subject of the modification application, and which had been changed since the original grant of consent . The Parties agreed that these had facilitated resolution of contentions in relation to the modification application." (Aesthete 2 at [8])
15. Commissioner Chilcott after considering the advice provided by the parties agreed that the jurisdictional prerequisites about which he had to be satisfied had been met (Aesthete 2 at [9]).
16. The Court being satisfied that the jurisdictional requirements had been met, and that the parties had reached agreement, made a decision which was a decision that was one that could have been made in the proper exercise of its functions, as was required by s 34(3) of the LEC Act. The decision required the Commissioner to dispose of the proceedings in accordance with the parties' decision. Therefore, the Court ordered that the appeal was upheld, and approval was granted for the modification subject to the conditions of consent which formed Annexure 'A' to the judgment.
17. In almost all circumstances that would be that, but not so in this case.
18. The agreement between the parties had been made on 5 April 2019. Development consent, putting the agreement into effect, was granted by Commissioner Chilcott on 16 April 2019 (Aesthete 2).
19. Amendment No 8 to the LEP 2015 was made one day after the s34 agreement was made. This changed the zoning of the western part of the site from Zone E2 to Zone E4 (Environmental Living), and removed the protected area designation. The zone names had changed from those in LEP 1991 but when LEP 2015 came into effect the boundaries of zones had not changed. At the time of the 2016 hearing the parties' ecological experts were aware that the two vegetation units assumed to be present in the western part of the site which were responsible for the protected area designation did not occur on the site. The assumed presence of the two vegetation units was the basis for the E2 zoning.
20. The E Zones changed to C Zones on 1 December 2021 (Standard Instrument (Local Environmental Plans Amendment (Land Use Zones) Order 2021).
21. The change from E to C Zones is simply one of name, there was no change to the text.
22. The judgment in Aesthete 2 was the result of an agreement made between the parties, with the Court's role being to determine that the orders proposed were ones which could lawfully be made as the jurisdictional requirements were satisfied.
23. The presiding Commissioner did not, and could not, make assessment of merit issues which might have been raised in the contentions both in the Respondent's Statement of Facts and Contentions or the Applicant's Statement of Facts and Contentions in Reply.
24. Despite the Respondent raising a number of contentions concerning the merits of the proposed development, the making of an agreement between the parties indicates that as a result of agreed amendments to the proposed development and the agreed conditions, the merit issues either no longer applied or could be managed by appropriate conditions.
25. Despite the agreement between the parties, the Applicant became concerned that the Respondent had not approved the amended Vegetation Management Plan (VMP) that had been submitted to the Respondent on 21 March 2019.
26. The modification to the 2017 consent proposed an increase in the number of lots in the subdivision from 17 to 21 by creating four new lots in the western part of the site. If the number of lots increased, and the area of the western part of the site was to be subdivided, the VMP would need to be modified to address the larger area to which it would now apply. In the absence of advice that the Respondent had agreed to the amended VMP the Applicant filed a notice of motion seeking: "1. That proceedings 2018/00122321 be reopened and listed for further hearing before Commissioner Chilcott. 2. That the proceedings be limited to determination of the issue of Ecology and that the Court hear from the two Court appointed experts on the issue to be tried." (Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 81 (Aesthete 3) at [24])
27. The notice of motion was not listed for hearing until 23 April 2019 by which time Commissioner Chilcott had made the orders upholding the appeal and modifying the development consent in accordance with the agreement between the parties (2019 consent).
28. At the return of the notice of motion on 23 April 2019, Preston CJ pointed out that the judgment by Commissioner Chilcott had been handed down and that the orders that arose had been entered. The proceedings could not be reopened, as sought in the Applicant's notice of motion, unless the judgment and orders and the agreements between the parties were set aside. The Chief Judge directed the Applicant to file an amended notice of motion, and provided a timetable for filing of evidence by the parties.
29. The amended notice of motion was set down for hearing on 27 May 2019 before the Chief Judge. Details of the proceedings and the Chief Judge's orders are provided in Aesthete 3.
30. The amended notice of motion was filed on 29 April 2019 and sought: "1. That the Agreement entered pursuant to s 34 of the Land and Environment Court Act 1979, and dated 5 April 2019, be set aside. 2. The proceedings 2018/00122321 be reopened and listed before the registrar for allocation of a date for further hearing before Commissioner Chilcott. 3. That the proceedings be limited to determination of the issue of ecology (in particular fauna and flora and vegetation management) and that the Court hear from the two Court appointed experts on the issue to be tried." (Aesthete 3 at [28])
31. These orders sought only the setting aside of the agreement reached before Commissioner Chilcott, not the setting aside of the judgment and orders made and entered on 16 April 2019.
32. Nevertheless, the Applicant's solicitor, Mr Amirbeaggi (who appeared at the hearing of the amended notice of motion for the Applicant) submitted that Commissioner Chilcott's judgment and orders should be set aside through application of r 36.16(1) of the Uniform Civil Procedure Rules 2005 (UCPR). The amended notice of motion was filed on 29 April 2019 which was less than 14 days after the judgment and orders had been entered. Therefore r 36.16(3A) of the UCPR applied and enlivened the power of the Court to set aside the judgment and orders.
33. Mr Amirbeaggi submitted to the Court that the basis for seeking to set aside Commissioner Chilcott's judgment and orders was that the Council's ecologist, Ms Nagel, had not considered and advised whether she agreed with the Applicant's amended VMP by 10 April 2019, although Mr Cork, the Respondent's solicitor, had represented to Mr Amirbeaggi that she would do so. Mr Amirbeaggi submitted this representation from Ms Nagel was the 'consideration' for Aesthete entering into the s34 agreement. Failure to meet the timetable was a repudiation of the agreement entitling Aesthete to terminate the agreement (Aesthete 3 at [31]).
34. Mr Amirbeaggi wrote to Mr Cork: "I note that the basis of the application/prayer is the failure of consideration by the Council in pursuance to the agreement, namely that the Council would determine the issue of ecology/vegetation management by close of Wednesday, 10 April 2019. We note that the Council remains in continuing default. The applicant accepts the Council's repudiation, and herewith terminates the agreement." (Aesthete 3 at [32])
35. Mr Amirbeaggi submitted that termination of the s34 report removed the basis for Commissioner Chilcott's judgment and orders. "Mr Amirbeaggi submitted that the termination of the s 34 agreement removes the foundation for the Commissioner's judgment and orders. The Commissioner only gave the judgment and orders in order to dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Court Act. Now that there is no extant s 34 agreement, the Commissioner's judgment and orders should be set aside." (Aesthete 3 at [33])
36. Mr Cork represented the Respondent at the s34 conciliation and referred to what was said at the s34 conciliation conference: "Mr Cork referred to his evidence of what had occurred at the time of the conciliation conference on 5 April 2019 (which I have summarised earlier). Aesthete's senior counsel had said that: "We will take the consent. If the Council doesn't approve the VMP, then there will just have to be a new appeal." Mr Cork submitted that Aesthete entered into the s 34 agreement on this basis and asked the Commissioner to dispose of the proceedings in accordance with this agreement." (Aesthete 3 at [37])
37. I note that senior counsel was not the author of the notice of motion, and was not present when it was heard. As far as I am aware, he has not sought to seek to correct Mr Cork's recollection of what he had said.
38. He had not proposed modification to Condition 18 and it would seem that during the s34 conciliation conference the Applicant's senior counsel, Mr Pickles had not discussed with the Commissioner Condition 18 or the amended VMP. "Mr Cork submitted, therefore, that the Commissioner's judgment and orders should not be set aside in order to allow Aesthete to raise and to litigate an issue that had not previously been raised in the proceedings before judgment was given." (Aesthete 3 at [39])
39. The Chief Judge agreed with the Respondent: "40 I agree with the Council that Aesthete has not established any basis for setting aside the Commissioner's judgment and orders. 41 First, the principle of finality speaks against setting aside the Court's judgment and orders. Aesthete has not established any circumstance prior to judgment being given and the orders being made, which would justify setting aside the judgment and orders." (Aesthete 3 at [40]-[41])
40. His Honour also stressed that the acceptability of the amended VMP was not an issue in the proceedings. "44 Fourthly, the issue of the acceptability of the amended VMP was not in issue in the proceedings. Neither the Council nor Aesthete had raised it as a contention. Aesthete made no application to modify condition 18 of the 2017 consent, including to have condition 18 approve the amended VMP. The terms of the agreement reached between the parties did not address the acceptability of the amended VMP. Other than minor updating of references, no change to condition 18 was proposed. 45 In these circumstances, there is no justification to set aside the Court's judgment and orders under r 36.16(1) of the UCPR. 46 Unless the Court's judgment and orders are to be set aside, there is no warrant to consider whether to set aside the s 34 agreement of the parties, as Aesthete sought in order 1 of the amended notice of motion. I have doubts whether the Court would have jurisdiction to do so. The Court does have jurisdiction under s 16(1A) of the Court Act: 'to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.' 47 However, this ancillary jurisdiction is dependent on identification of a matter that falls within jurisdiction under a provision of the Court Act or under any other Act…" (Aesthete 3 at [44]-[47])
41. The Chief Judge in the course of the proceedings identified an error in both the parties' s34 agreement and in the Court's orders of 16 April 2019. With the consent of both parties the Court corrected the mistake under the slip rule r 36.17 of the UPCR.

The Applicant seeks to modify the modified development consent granted following the s34 agreement in 2019 (2019 consent) - plus ça change, plus c'est la même chose

1. On 21 December 2021 the Applicant lodged a modification application, SM/45/2015B modification, to modify the development consent granted for subdivision of 54 Luchetti. Avenue, Hazelbrook. The application for the modification of SM/45/2015A was principally to modify a number of the conditions of consent included in Annexure "A" to the judgment in Aesthete 2. Most changes relate to engineering and vegetation management changes which had arisen following discussion between the parties' experts.
2. The Applicant initiated a Class 1 appeal against the deemed refusal by the Respondent of the Applicant's modification application. I was appointed by the Chief Judge to preside at the hearing of the matter.
3. The matter commenced with hearings in Court on 24 and 25 August 2022, during which the parties presented openings and concurrent evidence was presented by the parties' experts.
4. A site inspection was held on 31 August 2022. The parties' legal representatives and experts were present. The inspection commenced at the existing termination of Luchetti Avenue. The vegetation of the whole site was observed, with assistance from Mr Whyte (the Applicant's ecology expert) who, inter alia, pointed out the position of his sampling plots, and pointed out the difference in species composition of vegetation at different localities.
5. Inspection was also made of the planned location of the drainage swale to which the raingardens on the northern lots would connect and then discharge from the site, flowing north of Luchetti Avenue to the headwall for discharge into the existing east flowing natural creek. Figure 2 Sheet CC004 Rev C dated 17/08/22 (from Ex A)
6. The plan above (from Ex A) shows the layout of the 21-lot subdivision, for which consent was granted following the s34 agreement between the parties (Aesthete 2). Lots 1-17 were approved by the consent granted in Aesthete 1. If approved the subdivision would have access to both Luchetti Avenue and Caratel Avenue. (Subsequently in this judgment, individual lots are referred to by the numbering in this Figure (Fig 2)). The discharge point from the drainage swale running on the northern side of the development to the existing headwall northeast of the crossing under Luchetti Avenue is indicated in Fig 2.
7. In previous proceedings involving the development, the Respondent had received a number of submissions from concerned residents, and the Court in those matters had been provided with the submissions and had heard on site from some of the authors of submissions. In 2019 Commissioner Chilcott was satisfied that the views of the only objector in those proceedings had been properly considered.
8. In the present matter there was some confusion initially as to whether there were objectors. The modification application had been notified (see map below of all properties notified), and during the hearing Mr Cork confirmed that a submission had been provided by Mr and Mrs Kelly, residents in Luchetti Avenue, whose property abutted the proposed development (Tcpt, 1 December 2022, p 56(27-40)). The notification of the modification application to residents, the Kellys' submission and the Respondent's notification of the Court's site inspection and advice that the Kellys could address the Court about their submission are included in Ex 8. Figure 3 Map of notified properties (Source: Ex C Tab 19)
9. The invitation to address was not taken up, but we were able to observe the Kellys' property from across the boundary to the subject site, and also from Luchetti Avenue. It was also possible to observe the features of the subject site mentioned in the submission, including the nest boxes in a number of trees. "COMMISSIONER: She [Mrs Kelly] also draws attention though to the existence of nesting boxes on a number of trees, and indeed we saw them when we visited them. Some of those trees might go. If they do, would the [nest] boxes be relocated to other trees? PICKLES: I don't remember anything specific; I do recall Mr [Whyte] saying something about that, on site or in his evidence. He did point out the nesting boxes and he did say that they have been installed already, with the express intent of transferring those to trees that are to be retained, in the MZ2 area presumably. COMMISSIONER: Yes. Again, that might need to be sort of specified, which area they're in, and somebody work out whether there were enough trees to put them all on. PICKLES: Yes, quite. I don't recall." (Tcpt, 1 December 2022, p 74(1-16))
10. During the hearing the Applicant tendered Ex D, the Statement of Facts and Contentions in Reply. Attached to Ex D was Annexure "D", a letter on the letterhead of Blue Mountains Civil Contracting signed by Mr Jason Compton. When tendering Ex D, Mr Pickles referred to the content of Annexure "D" as including: "PICKLES: This is the last document, it should be the last three pages, it's annexure D is a letter from Blue Mountains Civil Contracting and it identifies, by reference to figure 3-1 of the proposed VMP, the areas that would be required to be cleared based upon the understanding of the author of this letter who is obviously engaged in civil contracting works, but importantly makes the point at para 4 obviously, "All trees and shrubs and the road corridor will require removal" but then notes that in 5: "Road construction requires...and drainage systems." And then at 7: "The construction of...to reduce hazards." Nine: "The area along...operating and swing." And then para 10: "At the western...for safe access." And 11: "All vegetation will...they become dangerous."" (Tcpt, 24 August 2022, p 17(21-31))
11. By virtue of being an annexure to Ex D, Mr Compton's letter was in evidence, but was not in the form of an expert report.
12. On 28 September 2022 the Applicant submitted a notice of motion which sought that the Court make the following orders: "1. Leave be granted to the Applicant to call evidence of an expert in the field of civil works and rely upon the report of Jason Compton dated 23 September 2022, as expert evidence in the field of civil works. 2. Any other order the Court deems fit."
13. Mr Amirbeaggi in his submissions on the notice of motion explained why the Applicant wished the Court to receive evidence from Mr Compton: "10. The Issue (particularly, the scope of work identified by Mr. Jason Compton and its consequence for the removal of vegetation) only emerged as a matter in contest when: 10.1 the joint experts in the field of engineering gave their evidence and in so doing provided to the Court a diagram said to depict the 'Agreed Construction Zone', and 10.2 the Respondent on 30 August 2022, served outside of the time prescribed draft Conditions of Consent which seek to condition the undertaking of works in a manner inconsistent with the statement of Mr. Jason Compton (submitted without concession as to whether service of Conditions by a Respondent is an appropriate course in an Appeal from a refused Modification). 11. Upon identification that the Issue was a matter in contest the Applicant promptly served a further detailed report of Mr. Jason Compton dated 9 September 2022. 12. Upon the Court's further Order, the report was filed and served in the form of an expert report on 23 September 2022. That step in the proceedings was not opposed by the Respondent. 13. The Motion was filed in accordance with an Order made by the Court on 26 September 2022. That step in the proceedings was not opposed by the Respondent." (Applicant's submissions on the Motion dated 17 October 2022)
14. What was described as "a further detailed report" from Mr Compton dated 9 September 2022 was not in the form of an expert report. I ordered that if the Applicant wished to rely on the material in the 9 September 2022 report it would be necessary for the report to include acknowledgment by Mr Compton of the obligations and requirements for expert reports (as all experts giving evidence are required to do) and also include his curriculum vitae. This was done, and a report was filed and served on 23 September 2022, unopposed by the Respondent.
15. For the Applicant to qualify Mr Compton as an expert, it was necessary for it to file a notice of motion seeking leave to call evidence from him. This was done in the notice of motion submitted on 28 September 2022.
16. I heard the notice of motion on 27 October 2022 (Aesthete No 9 Pty Limited v Blue Mountains City Council [2022] NSWLEC 1603 (Aesthete 4)) when I had regard to the reports and submissions noted in [25], and the affidavit of Mr Crompton sworn on 17 October 2022.
17. Mr Crompton was the Applicant's civil and hydraulic engineer in the matter (in earlier years the Applicant had engaged different hydraulic engineering consultants).
18. Mr Crompton had given joint evidence with the Respondent's engineer, Ms Hawken (Ex 5; Mr Phillips (Cardno) also participated in the joint expert conference as a stormwater and flooding expert for Council), and (Ex 6), a supplementary joint expert report by Mr Crompton and Ms Hawken) (Aesthete 4 at [26]). Ms Hawken gave evidence on two days: "27 Much of the discussion on 24 August 2022 was in relation to drainage issues about which there was agreement between the parties. On 25 August 2022, when Mr Crompton was not present, Ms Hawken was questioned in relation to the machinery that could be used in site preparation works. She stated (Tcpt, 25 August 2022, line 14) that she had actually discussed these issues with Mr Crompton, and said on Tcpt, 25 August 2022, p 81(22-23) that 'Mr Crompton is familiar with many excavators that can be 800 millimetre in width'. 28 Given that Mr Crompton was not present, he was not questioned as to whether or not he agreed with these statements of Ms Hawken. Whether or not he had made this comment in his discussion with Ms Hawken, in his affidavit of 17 October 2022, he said that he did not intend in the agreed construction zone plan to endorse any particular construction methods and machinery: "3. When preparing the Plan, I intended to depict the general areas where services and drainage works would be installed in the undertaking of the subdivision works. 4. When preparing the Plan: 4.1 I did not intend the Plan to be to scale, provide measurements or widths of the works, nor to be exacting. 4.2 I did not have regard to the construction methodology required to undertake the subdivision works. 4.3 I did not have regard to the regulatory requirements / compliance necessary and the impact of those requirements on the type of machinery that is now intended to be used to undertake the subdivision works. 5. I have limited experience in the physical undertaking of civil works and do not possess expertise in that field or area. 6. Having regard to the above and the construction methodology / regulation identified by Mr. Jason Compton. The Plan does not now align with my opinion as to the potential areas of construction or areas in which vegetation may now need to be removed in order to carry out the subdivision works using the machinery proposed." (Aesthete 4 at [27]-[28])
19. The issues raised by Ms Hawken related to the types of machinery that would be used in the site works which were part of the subdivision. Mr Compton's report addressed the machinery and methods that would, in his opinion, be necessary.
20. In the course of the hearing of the notice of motion the contentions that were in play in the main proceedings were discussed: "29 The Respondent in its submissions on the Notice of Motion identified six contentions in the proceedings. "4. The Respondent has identified 6 contentions in the proceedings, all nominated in the Respondent's Statement of Facts and Contentions filed on 6 April 2022 (SOFC): B1 - Insufficient Information B2 - Vegetation Management Plan B3 - Earthworks B4 - Inappropriate location of flood mitigation stormwater and water quality infrastructure B5 - Inappropriate configuration of water quality infrastructure - proposed by retention/detention basins and boundary retaining walls in Lot 12-16 B6 - Not substantially the same development" but considered that contentions B1, B3, B4, and B5 had been substantially resolved (at par 5). The Applicant, in his Submissions in Reply, does not agree and considered that Contention B3 had not been resolved, but is, particularly given Mr Crompton's affidavit, very much alive. Contentions B4 and B5 have been resolved between the experts. Contention B1, as it stood in April 2022, has been substantially resolved through provision of information, but the changes that have taken place in a number of details have generated some other issues requiring further information. Contentions B2 and B3 are necessarily intertwined." (Aesthete 4 at [29])
21. After the conclusion of the oral submissions, I adjourned to consider material, including the cases cited, which had been provided, and also to consider what had been said during the hearing after which I informed the parties that I would not grant the leave sought by the Applicant and gave brief reasons and indicated that I would provide written reasons in a judgment (Aesthete 4).
22. The Applicant's notice of motion sought to introduce a new field of evidence. It was not a matter of introducing new evidence on issues that had already been discussed in joint conferencing between appropriate experts. Even reopening to permit existing experts to discuss new evidence would have required leave, and a compelling reason to justify allowing new evidence at that stage in proceedings. There might be some matters where it is obviously necessary to reopen (such as might arise were new analysis of forensic material alters the conclusions drawn) but in many instances granting leave would be discretionary.
23. Widening the field of enquiry would require both parties to utilise additional experts. By virtue of the inclusion of Annexure D to Ex D both parties were aware of Mr Compton's opinions, but the Applicant had not sought prior to the hearing to qualify Mr Compton as an expert.
24. Mr Compton's report raises a large number of issues. From a practitioner's perspective he would have knowledge of the machinery he routinely uses (and possibly of the availability of other machinery that may be available for specialist tasks). Council officers given their training and experience would have knowledge of machinery used at sites in the LGA, and in the Council's own operations.
25. The Applicant in its oral argument on the notice of motion argued that the issue was not the practicality of the construction plan but its legality. There were workplace health and safety requirements which could not be met if the Respondent's requirements for construction were imposed. Workplace health and safety are important matters and apply to all employers and all employees. The relevant legislation, however, does not fall within the jurisdiction of this Court, so if there were disagreement between relevantly qualified experts on the application of safety legislation the Court could not resolve them. Mr Compton in his report argued, at pars 163 and 164, that it would be necessary to remove "very thin narrow strips of vegetation" because it would be impossible to maintain them and the trees in such strips would be a risk to workers arising from the trees failing due to wind throw or weakened root systems. These are not issues upon which Mr Compton could give expert evidence; they would be matters that would necessarily require assessment by arborists. Neither party had qualified an arborist to give evidence. For the parties to engage experts in workplace health and safety matters could be expensive and time consuming particularly if it did not result resolution of issues and further hearings were required. Any modification of existing or new conditions would need to be compatible with the implementation of the unaltered conditions, which would require careful analysis of any proposed amendments.
26. In many Class 1 applications, joint conferencing has involved discussion between engineers and ecologists about the impacts of proposed development on aspects of biodiversity and the extent to which these impacts could be reduced. I am not aware, and no specific case was brought to my attention, of instances where discussions have involved the practicality/feasibility of construction and the expert witnesses involved included, as specifically identified categories of experts, contractors.
27. One (possibly the main or even only) reason for contractors not appearing as experts and why discussion of implementation of conditions is that in Class 1 cases the contentions do not raise issues which would require evidence relating to implementation.
28. The outcome of Class 1 appeals, whether achieved through a s34 agreement or in a judgment of the Court after a contested hearing, are attempts to balance competing issues and produce sustainable environmental (in the broadest sense of the term) outcomes. This is not to say that the outcome represents the best possible outcome but the outcome having been set at the end of proceedings, working out how to achieve that outcome is important.
29. Mr Compton's approach would operate in a reverse way to that conventionally applied. It starts from a position of knowing how to reach the end given the resources thought to be available in terms of machinery, expertise and personnel (and implicitly, if not explicitly, some idea of what the Applicant is prepared to spend). The approach more generally applied is for the conditions to be based on what is needed to achieve a particular desired environmental outcome. Each matter will differ in the issues involved, and in some instances the conditions may necessarily be more prescriptive than in others. In some instances, there may be constraints that would prevent the conditions being met in any circumstances - but necessity may prove to be the mother of invention, and an applicant may develop ways of satisfying the conditions in an environmentally appropriate and cost effective way. However there may be cases where at the time consent was granted an applicant could not meet the conditions.
30. Mr Pickles said in his oral submissions: "But just by way of some opening remarks Commissioner, indeed Mr Cork is correct that the main impetus for the modification of conditions was the stormwater drainage design that needed to be revised, and the revised vegetation management plan which, in large measure, comes as a consequence of the revised stormwater design but also, at a practical level, it was not seen as viable to maintain the vegetation management plan as approved by the council because it anticipated a level of selective tree removal in the area that had been identified as MZ3 under the earlier vegetation management plan which, one, was not viable as a consequence of the rain gardens and the revised stormwater works, but in consequence of the advice provided by the civil engineer in exhibit D, the VMP has been revisited by Mr Whyte." (Tcpt, 24 August 2022 p 20(6-17))
31. During the hearing he was not subject to any questioning seeking clarification of this statement, What is meant by 'revisiting the VMP'? Had Mr Whyte produce a version of the VMP reflecting Mr Compton's recommendations for the clearing required?
32. In Mr Amirbeaggi's affidavit of 27 September 2022 in support of the notice of motion to rely on Mr Compton's evidence, he gave reasons why leave should be granted. "9. The Applicant says that in order to fully determine all matters in dispute it is necessary to resolve both the construction zone issues and the matters relating to the VMP. The two are fundamentally intertwined. It has only emerged as a matter of contest because of the evidence given at the final hearing by the engineering experts and the draft conditions of consent proposed by the Council. 10. The proposed construction zone is an important issue in the proceedings because without evidence concerning the way in which the subdivision may practically be completed, the determination of the appropriate VMP cannot be fully determined and determination of that issue the Court might be led to the making of Orders and conditions that cannot as a practical matter be carried into execution."
33. In par 10 of his affidavit, stress was placed on practicality, and it was suggested that the Court might be lead into making orders and conditions which could not be executed.
34. Clearly, if the Court were aware that particular conditions could not be executed then the Court would not make orders imposing those conditions. If the reason advanced for not making an order is one of convenience - it would be inconvenient to the applicant if the condition were imposed - then that would not be sufficient for the order to be made. However, if the applicant can demonstrate that under no circumstance could the condition be applied, then that could be a valid reason for not imposing the condition.
35. Mr Amirbeaggi in his submissions of 17 October 2022 identified that the extent of removal of vegetation from the site had been an issue throughout the history of the matter. "4. The removal of vegetation has been an issue (Issue) in these and earlier Appeal proceedings concerning the subject property. The first Appeal in which the removal of vegetation was in issue was filed on 17 June 2016. The parties have returned / engaged the Court on 3 earlier Appeals concerning the subject property and in particular the Issue. … 6. The question, matter, or indeed the Issue for the Court to determine is what measure of vegetation must be removed to practically permit the approved subdivision work that is to be undertaken."
36. In par 5 of the Applicant's submissions, Mr Amirbeaggi wrote: "The parties have both lead extensive expert evidence with respect to the Issue. The Respondent has by its' own expert, namely Doctor Stephen Douglas, in an earlier Appeal conceded that there is no vegetation present on the property that is scheduled, or of a protected species or variety."
37. Dr Douglas may have said this but whether there was vegetation on the site that was scheduled or that it contained protected species is not relevant, as it is the clearing of vegetation (bush in general) which is of concern, not what it contains. (If there were threatened species and communities present that would raise other issues for consideration).

The present case

1. The modification sought by the Applicant was described as: modify various conditions of consent related to engineering and vegetation management plans. The modification application was supported by a Statement of Environmental Effects (SEE) prepared by Vince Hardy (Ex C Tab 17). In section 4.1 (p 5) of the SEE, an overview of the proposal is described as: "The development consent notice requires the preparation of numerous environmental management plans to be prepared and approved by Council. It also references engineering plans that are the focus of this proposed modification of the development consent notice". I note two changes to the context in which the matter is set: the first is to the physical appearance of parts of the site, and secondly, changes to the planning context.
2. On 15 February 2021 the RFS issued a Bush Fire Complaint (Ex E) to the Applicant pursuant to s 100G of the Rural Fires Act: 100G Bush fire hazard reduction certificates of certifying authorities (1) Before a certifying authority carries out any bush fire hazard reduction work on land, the certifying authority must certify - (a) that a bush fire risk management plan applies to the land, and (b) that the certifying authority has taken into consideration the provisions of any bush fire code applying to the land and determined which of them should be complied with in carrying out the work and whether any conditions should be imposed having regard to any provisions of that code, and (c) if the certifying authority is a local authority or a public authority, that the notice will be given to the fire control officer for the district in which the land is situated before the work is carried out and to any other person prescribed by the regulations. (1A) In the case of a single bush fire hazard reduction certificate certified by a certifying authority in respect of several parcels of adjoining land, as referred to in section 100E (3), a reference in subsection (1) to the certifying authority carrying out bush fire hazard reduction work on land is taken to include a reference to any authority or person carrying out the work on any of the land. (2) A bush fire hazard reduction certificate certified by a certifying authority must - (a) specify the provisions of any bush fire code applying to the land that the certifying authority has determined should be complied with in carrying out the work, and (b) specify any conditions that have been imposed by the certifying authority having regard to that bush fire code, and (c) specify the period for which the bush fire hazard reduction certificate operates.
3. Attached to the letter from RFS was a Bush Fire Hazard Reduction Certificate- Environmental Approval for Works (certificate no. HR2102 59086 9-1) (BFHRC). Bush fire hazard reduction certificates are issued pursuant to s 100F of the Rural Fires Act: 100F Issue of bush fire hazard reduction certificates (1) An application for a bush fire hazard reduction certificate in respect of work to be carried out on private land by a person other than a local authority or the Commissioner is to be made to the issuing authority in writing in accordance with the regulations (if any). (2) An application may be made - (a) by any owner or occupier of the private land, or (b) if the work is to be carried out on the private land by a public authority responsible for managed or unoccupied Crown land in the vicinity of the private land - by the public authority. (3) A single application may, with the consent of all owners or occupiers of the land concerned - (a) be made for land owned or occupied by more than one person, or (b) be made by a public authority on behalf of those owners or occupiers. (4) A bush fire hazard reduction certificate must not be issued unless - (a) a bush fire risk management plan applies to the land, and (b) the issuing authority has taken into consideration the provisions of any bush fire code applying to the land and determined which of them should be complied with in carrying out the work and whether any conditions should be imposed having regard to the code. (5) The issuing authority may determine an application - (a) by issuing a bush fire hazard reduction certificate, or (b) by refusing to issue a bush fire hazard reduction certificate. (6) A bush fire hazard reduction certificate must - (a) specify the provisions of any bush fire code applying to the land that the issuing authority has determined should be complied with in carrying out the work, and (b) specify any other conditions that have been imposed by the issuing authority having regard to that bush fire code, and (c) specify as a condition of the issue that notice be given to the fire control officer for the district in which the land is situated before the work is carried out and to any other person prescribed by the regulations, and (d) specify the period for which the bush fire hazard reduction certificate operates. (7) The determination of an application must be completed within 7 days (or such longer period as may be agreed to by the applicant) after lodgment of the application. (8) There is no right of appeal against the determination of, or a failure or refusal to determine, an application for a bush fire hazard reduction certificate. Note - If a bush fire hazard reduction certificate is not obtained, bush fire hazard reduction work may still be carried out but only if any approvals, consents or other authorisations that would have been required to be obtained but for section 100C are obtained. (9) A public authority, a local authority or the Commissioner must not charge any fee in respect of an application for, or the issue of, a bush fire hazard reduction certificate.
4. The BFHRC applies to two areas of the site: one being an area of 12.98 x 151.00 m on the southern boundary of the site and the second to an area of 6.00 x 243.50 m on the northern boundary of the site adjacent to existing dwellings on Luchetti Avenue.
5. The original approval for the construction of the dwellings which are adjacent to both the northern and southern boundaries of the site occurred before he RFS existed, and Planning for Bush Fire Protection 2006 had not yet been published. (Prior to the establishment of the RFS, responsibility for establishing and maintaining rural fire services lay with the local government within the area of the State in which RFS now operates). There are now standard procedures and processes, and coordination of active fire management and control.
6. The BFHRC required that the two areas identified were to be slashed and trittered to reduce the fuel load. The Applicant has carried out the required works and as a consequence is obliged to maintain the fuel load in both areas at a low level. The obligation to maintain the APZs lies with the Applicant, but as the 21 lots created by the subdivision are sold, the obligation would pass to the new owners of the individual lots, but there would be a period during which the Applicant will be responsible managing for fuel load over a diminishing area of the current site, until such time as all the lots are sold and individual owners will be responsible for their own lots.
7. The Applicant had been required to apply to RFS for a bush fire safety authority under s 100B of the of the Rural Fires Act: 100B Bush fire safety authorities (1) The Commissioner may issue a bush fire safety authority for - (a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or (b) development of bush fire prone land for a special fire protection purpose. (2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire. (3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1). (4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations. (5) Development to which subsection (1) applies - (a) does not include the carrying out of internal alterations to any building, and (a1) does not include the carrying out of any development excluded from the operation of this section by the regulations, and (b) is not complying development for the purposes of the Environmental Planning and Assessment Act 1979, despite any environmental planning instrument. (6) ...
8. Under Standards for Asset Protection Zones (February 2014), (a publication of the RFS) - that was included in Ex E - the APZ should be located on the land on which the asset that is to be protected is situated. "The APZ should be located wholly within your land. You cannot undertake any clearing of vegetation on a neighbour's property, including National Park estate, Crown land or land under the management of your local council, unless you have written approval."
9. APZs wholly or partly on adjoining land, will only be approved under exceptional circumstances - the reason why this is so, and examples of exceptional circumstances are discussed in Planning for Bush Fire Protection 2006, NSW Rural Fire Service in Chapter 3 Section 3.3 pp 13-14, NSW Rural Fire Service Community Resilience Practice Notes 1/12, March 2012 ('Establishment of Easements for the Purpose of Asset Protection Zones'), and Planning for Bush Fire Protection 2019 NSW Rural Fire Service Chapter 3 Section 3.2.5 p 26.
10. The Bush Fire Safety Authority issued for the proposed development requires that the whole of the area be managed as an Inner Protection Area (IPA).
11. The currently applicable APZ requirements are Appendix 4 to Planning for Bush Fire Protection 2019. The specification for IPAs is in A4.1.1.
12. The compatibility of the IPA requirements and the objectives of the LEP and zone aims is an issue in this case.

The planning regime

1. The relevant local environmental plan is LEP 2015. However, the original development consent was granted while the relevant LEP was LEP 1991. The current application is to modify the original consent, but not to replace it, so that the structure of the whole of the consent still reflects the requirements of LEP 1991.
2. The aims of LEP 2015 are laid out in cl 1.4. These are broader and more extensive than those of many other LEPs, with considerable stress on the importance of protecting the natural environment within the LGA. At a more focused scale, the objectives of the individual zones are more directly relevant to consideration of individual development applications.
3. Under LEP 2015 the subject site is wholly within zone C4 Environmental Living. In the Land Use Table, the objectives of the zone are listed under four dot points: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To preserve and re-establish native bushland in those areas that exhibit a predominantly bushland character, where consistent with the protection of assets from bush fire. • To ensure that the form and siting of buildings are appropriate for, and harmonise with, the bushland character of the locality.
4. Land subject to LEP 2015 may only be subdivided with development consent. 2.6 Subdivision - consent requirements (1) Land to which this Plan applies may be subdivided, but only with development consent. Notes - 1 If a subdivision is specified as exempt development in an applicable environmental planning instrument, such as this Plan or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, the Act enables it to be carried out without development consent. 2 Part 6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 provides that the strata subdivision of a building in certain circumstances is complying development. (2) Development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots are not less than the minimum size shown on the Lot Size Map in relation to that land. Note - The definition of secondary dwelling in the Dictionary requires the dwelling to be on the same lot of land as the principal dwelling.
5. Subdivision of land within zone C4 is governed by cl 4.1E. 4.1E Subdivision of land in certain conservation zones (1) The objectives of this clause are as follows - (a) to ensure that the subdivision of land in certain conservation zones is consistent with a land capability assessment that identifies and conserves the ecological values of that land, (b) to ensure that lot sizes and subdivision patterns for residential accommodation conserve and provide protection for the environmental values of the land by encouraging buildings to be appropriately sited. (2) This clause applies to land in the following zones - (a) Zone C2 Environmental Conservation, (b) Zone C3 Environmental Management, (c) Zone C4 Environmental Living. (3) Development consent must not be granted to the subdivision of land to which this clause applies if any of the lots resulting from the subdivision will only contain land in Zone C2 Environmental Conservation unless any such lot is to be provided for a public reserve, public road or other public purpose. (4) Despite clause 4.1, development consent must not be granted to the subdivision of land in Zone C3 Environmental Management or Zone C4 Environmental Living unless the consent authority is satisfied that each lot resulting from the subdivision will contain land (other than environmentally sensitive land) that has an area of at least 750 square metres and is suitable for the erection of a dwelling house (a development space). (5) Subclause (4) does not apply to a subdivision of land that is - (a) a minor realignment of boundaries that does not create an additional lot, or (b) a reservation or dedication of land for creating or widening a public road or public reserve or for another public or environment protection purpose. (6) …
6. The objectives of the C4 zone are not readily interpreted. The first objective refers to 'areas of special ecological, scientific or aesthetic values.' The meaning of 'special' in relation to characteristics of the values, either individually or collectively, is not defined. However, the ecology experts were in agreement that there were no species or ecological communities present on the site that were listed on the schedules of the Biodiversity Conservation Act 2016 (BC Act).
7. The ecological values of the site would include any values identified under s 1.5(2) of the BC Act: 1.5 Biodiversity and biodiversity values for purposes of Act (1) … (2) For the purposes of this Act, biodiversity values are the following biodiversity values - (a) vegetation integrity - being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state, (b) habitat suitability - being the degree to which the habitat needs of threatened species are present at a particular site, (c) biodiversity values, or biodiversity-related values, prescribed by the regulations.
8. Section 1.5(2)(a) relates to the extent to which the 'original' condition (near natural state) of vegetation has changed, and not the value which could be recognised in the vegetation in its present condition. Section1.5(2)(b) addresses habitat needs of threatened species on the site, but does not require consideration of what could be considered to be the ongoing functional values of the site.
9. The assessments of the site give no consideration to the aesthetic values of the site, and the meaning of "aesthetic value" in the context of LEP 2015 is not defined.
10. The second aim of the zone is to ensure that residential development does not adversely affect the values identified in the first aim.
11. The modification application subject to the present appeal provides for construction of the services, including roads, which will need to be provided for the residential dwellings which will eventually be constructed, but does not seek approval for the construction of any of the dwellings. It will be for the future owners of individual lots to seek development consent for whatever building and ancillary works that are proposed.
12. The fourth aim relates to the second and third, by seeking to ensure that the form and siting of buildings are appropriate for the achievement of the third objective.
13. The third aim is critical in the present matter, but again it is somewhat opaque. It requires that native bushland be preserved and re-established. "Bushland" is not defined, and so takes its common usage. The Macquarie Dictionary defines "bushland" as "natural, uncultivated land" (accessed online 6 November 2023). ("Bushland" differs from "bush" which has far wider connotations of being beyond the major conurbations. Large parts of the bush are bushland, but the bush also includes agricultural land and rural settlements). Hazelbrook as a suburb of the Blue Mountains City is not in the bush, but it does include bushland within its boundaries. The Macquarie Dictionary definition of "bushland" refers to "natural" whereas the C4 zone objective qualifies bushland by "native".
14. The objective of the C4 zone refers to "preserve" but also "re-establish" so that re-vegetation can be included in the management of land in Zone C4 - but whether re-establishment has to be to some earlier state of the land, or simply that it be with native plants is not addressed. Areas of existing bushland in locations with a long history of disturbance by humans may have naturally regenerated. There was no information provided on the previous history of the site.
15. The site currently has a vegetation cover of predominately native plants that are locally indigenous, and so would satisfy the common interpretation of native bushland, and this vegetation cover gives the area "bushland character".
16. However, while a 21-lot subdivision is large within a suburban context, the total site area is small compared with many subdivisions on greenfield sites on the urban fringe, which may be sufficiently large that there would be opportunity to provide for development of areas of new dwellings interspersed with remaining stands of bushland, so that at least from some vantage points the visual bushland character is preserved.
17. That has never been the case for the subject site. The 2017 consent preserved areas of bushland at the western end of the site, but within the area where 17 dwellings were approved the bushland character would have been greatly simplified and possibly lost. The 2019 approval for a 21-lot division removes the continuous vegetation at the west of the site, and bushland character would be lost. There are opportunities to preserve some individual trees, and for enhancement by future plantings (provided they are compatible with the whole site being an IPA) so there would be some provision for movement of native fauna species through the site, so that some aspects of biodiversity would be conserved, but maintaining bushland character at the scale of the whole site would not appear to be a realistic outcome.
18. Critically, the last phrase of the third aim of the C4 zone requires that the bushland retention or re-establishment is consistent with protection of assets from bush fire. This requires that protection of assets from bush fire prevails over management for bushland enhancement.
19. The objectives of the Residential Bushland Conservation zone, which applied to the site under LEP 1991 were similar conceptually, although worded differently. Objective (e) was worded as: To ensure bushfire protection measures are adequate to protect proposed development and are able to be implemented without unacceptable adverse environmental impacts. and then required that bush fire protection measures were able to be implemented without unacceptable adverse impacts.
20. However, the consequence could be that even though the RFS had issued GTAs for a proposed development, approval of the development application was not automatic, with the GTAs included in the conditions, rather the consent authority could refuse development because it was of the view that acceptance of the GTAs, which would be necessary for approval, would result in adverse impacts.
21. The requirements of the RFS have been consistent for the whole of the site to be managed as an IPA and conditions to this effect were applied to both the original development consent (2017) and to the modified consent (2019).
22. In 2017 the conditions of consent were agreed by both parties. In 2019, there was a s34 agreement so that the conditions were also agreed by both parties.
23. In the present matter the parties continue to accept that the site be managed as a IPA but disagree over the form, and implementation, of, in particular, Conditions 5 and 18.
24. The RFS requires that the whole of the site be managed as an IPA. In Planning for Bush Fire Protection 2019 Appendix 4 Section A 4.1.1 p 107 it is stated that "In practical terms the IPA is typically the curtilage around the building, consisting of a mown lawn and well maintained gardens."
25. There was no suggestion from either party that the site be managed in this 'typical' pattern, with the exception of the immediate curtilage of the proposed dwelling houses.
26. In requiring that the whole of the subject site be managed as an IPA, the RFS decision would have been based on its consideration of the fire risk and the need to maintain appropriate fuel loads over the entire subject site.
27. The requirements for establishing and, importantly, maintaining the IPA in perpetuity are specified in Planning for Bush Fire Protection 2019 in A4.1.1 as:
28. The standards provided in Standards for Asset Protection Zones, and in the requirements in Planning for Bush Fire Protection Zones are non-discretionary development standards. Section 4.15(2) of the EPA Act states: (2) Compliance with non-discretionary development standards - development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority - (a) is not entitled to take those standards into further consideration in determining the development application, and (b) must not refuse the application on the ground that the development does not comply with those standards, and (c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 4.16 is limited accordingly.
29. The parties agreed conditions in 2017 embodied the then GTAs of the RFS. In 2019 the parties reached a s34 agreement that incorporated conditions including the RFS' GTAs; although the Applicant subsequently attempted, unsuccessfully, to have the agreement struck out and to reopen the matter seeking to amend Condition 18 but there was no attempt from either party to change the requirement that the whole of the site be managed as an IPA.
30. The RFS requires an IPA to be established for many development proposals, and subsequent development consents have incorporated the RFS requirements and standards.
31. Despite the very large number of sites for which IPAs have been established and managed, I am not aware that there have been many studies, from which results have been published, which have investigated the long-term ecological consequences of the required management regime. Neither party cited any such studies.
32. Given the longevity of individual plants, and the infrequency, for many species, of successful reproduction events, any studies would need to be continued over many years, which raises practical issues of who would be responsible for funding and conducting investigations, to whom what they report, who would be responsible for analysis and maintaining the data and applying adaptive management arising from the results if changes to the management regime were necessary?
33. Conditions requiring monitoring frequently do not impose an open-ended timescale for compliance. Monitoring and management may be scheduled for periods of five or ten years, or for the life of the consent. In the present case, the Applicant will be responsible for the VMP during the subdivision but once the subdivision is completed the area for which the Applicant's management responsibilities apply will reduce as individual landholders assume responsibility for their lots, and when the individual landowners have obtained development consent for a dwelling, the conditions applied would include the management of vegetation. It would be reasonable to expect that in terms of vegetation management the conditions applied at subdivision stage would continue to apply to the lots, but it is possible that the RFS conditions would evolve over time, or that individual landowners would seek modification in relation to their lot.
34. Although standards would be imposed requiring continuing maintenance of APZs (both for IPAs and Outer Protection Areas (OPAs)), will these be enforced?
35. This might become an issue fairly rapidly for the ground layer of the vegetation. Both for IPAs and OPAs, Planning for Bush Fire Protection 2019 refers to grass which is to be kept mown to a height of no more than 100 millimetres. This may be reasonable and achievable for areas formally designated as lawn, where species composition is overwhelmingly dominated by grass species. Grass leaves and stems grow from the base, which is the major reason for grass survival and growth under grazing pressure (for which mowing is a substitute). Mowing or cutting grass within an IPA would not prevent rapid regrowth. Other graminoid monocotyledonous plants (such as sedges and rushes) would respond in a similar manner. While grasses are present in the subject site, they are not the only component of the ground layer, which also contains a variety of herbaceous plants and dwarf shrubs. Some of these dwarf shrubs in the ground layer are 'passing through' and over time could become components of the shrub layer. Others however will remain dwarf, sometimes forming prostrate woody mats.
36. How often would mowing occur to enable to continue to satisfy the RFS standards for an IPA? In warm, wet seasons grass will grow rapidly. If the intention of the requirement is that the grass layer will be maintained at, or below, 100 millimetres then mowing would need to be frequent. Even if the layer were cut substantially lower than 100 millimetres it might only be a matter of weeks before the 100 millimetres level was again exceeded. Cutting at this frequency would promote further growth and abundance of grass, but might adversely affect both growth and reproduction of the other ground layer species. Even cutting once a year may affect the long-term species composition of the ground layer.
37. The requirements for the shrub and canopy layers are designed to limit fire spreading from tree to tree or from shrub canopy, and limit fire spreading to assets.
38. This is to be achieved by pruning of canopies and by the selective removal of trees and shrubs. Given the need to repeatedly cut the ground layer eventual replacement of canopy trees by reproduction in situ is unlikely - the seedlings and young saplings would be cut down before they could grow to the tall sapling stage. However, it would be possible to grow saplings off site, preferably of local provenance but at least of the same species, and plant them when required to maintain the number and spacing of canopy trees.
39. The litter layer is to be reduced to a very low level, which from a fire management perspective is an obvious and desirable requirement. The litter layer is important in protecting the soil surface from erosion and the litter layer should not be completely removed. Erosion potential is greater on steeper slopes. Small parts of the site are slope constrained so that special care would need to be taken in reducing the litter load in those areas. Step 5, Standards for Asset Protection Zones (p 9) in most circumstances requires retention of at least 75% ground cover which includes vegetation, twigs, leaf litter, clippings or rocks.
40. It also suggests that "A permanent ground cover should be established (for example short grass). This will provide an area that is easy to maintain and prevent soil erosion." However, as discussed previously, replacing the natural ground layer with grass will change the appearance, structure and biodiversity of the vegetation on the site.
41. Removal of the litter layer will remove nutrients from the site, which would otherwise be retained on site following decay and return of nutrients in available form to sustain ecosystem functioning. Standards for Asset Protection Zones (p 9) suggests that where removal of fuel is impractical, pile burning may be permitted. In this case removal of fuel may be feasible, provided an end receiver can be found, but pile burning and subsequent spreading of ashes would retain nutrients on site. Pile burning has not been suggested by the parties, and even if it were would required approval from RFS which might not be forthcoming.
42. If individual owners fail to maintain their land to the standard required by the RFS this will increase the risk to their own assets, but also to their neighbours and more widely. Subdivision and subsequent construction of dwellings is permissible with consent on the subject site, and development consent for a 21-lot subdivision was granted in 2019. Unless the Applicant surrenders its consent or applies to further amend the consent, development consent has been granted for the subdivision.
43. Implementing the consent, incorporating as it does the RFS requirements, means that the site will be managed in a way that achievement of the LEP zone objectives might not be possible. However, it is questionable that the zone objectives could be fully met in any circumstances in that the bushland character will change, with alteration to the structure and composition of the ground layer and to the structure of the canopy and shrub layer. Elements of the bushland will remain and can be managed so that their presence is consistent with the protection of assets from bushfire, although inevitably there will, over time, be loss of character and elements of biodiversity. The subject site is not unique in presenting this particular challenge - the primacy properly given to protection of life and property makes it inevitable that there will be some loss of environmental values at some sites.

Will the proposed modification, if approved, result in substantially the same development?

1. For a modification application under s 4.55(2) of the EPA Act a consent authority must be satisfied: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)…
2. The comparison that is to be made is to the original consent, that is the 2017 consent granted by the Court after a hearing before Commissioner Chilcott. That consent was for a 17-lot subdivision.
3. Subsequently, following a s34 agreement (Aesthete 2) the number of lots was increased to 21. The current application is for a further modification that does not increase the number of lots but does introduce a new design layout for stormwater management and seeks modification in the road and associated works, changes to the VMP, and changes to a number of conditions.
4. Although the comparison I must make is between the development as it would have appeared if the current modification application were approved and what it would have been under the 2017 development consent, I am mindful of what the parties had mutually agreed in 2019 and that the change then was considered to result in substantially the same development.
5. The issue of what makes a development substantially the same has been addressed by the Court on a number of occasions over the years - the provision which is now in s 4.55(2) occurred in s 102 and then s 96 in earlier manifestations of the EPA Act.
6. The very fact of it being proposed as a modification, means that what is proposed is not the same as the original, but the potential range of what could be considered to be substantially the same, may be large.
7. Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No.3) [2015] NSWLEC 75 provided at [173] a useful summary and analysis of the legal principles applicable to modification of consents (in relation to s 96(2) as then was, but equally applicable to s 4.55(2)). Preston CJ in Arrage v Inner West Council [2019] NSWLEC 85 (Arrage) at [18]-[33] explained that the comparison required by s 4.55(2) is between the development as modified and the development as originally approved (in the present matter the development approved in Aesthete 1). The test the consent authority (or the Court on appeal) must apply is that in s 4.55(2)(a) of the EPA Act, and not that included in the dicta within judgments; those dicta may assist in carrying out the test but they cannot supplant the legislation.
8. The facts in every modification application will be particular to the circumstances of the site involved and the nature of the modification proposed. However, some of the earlier cases that have considered modifications, such as Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 (Vacik) and North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 (Michael Standley) provide general principles still widely applicable.
9. The application is for a modification. In order for a modification to occur, something has to be modified. "Modify" has been interpreted by the Court to mean "to alter without radical transformation": Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at [42].
10. If an applicant sought to alter a consent originally granted for a residential development to a proposal for an industrial estate that would be a 'radical transformation' and could not be regarded as an attempt to modify and so approval could not be sought through s 4.55(2). There may be different views as to what the extent of alteration might be before the 'radical transformation' threshold was reached, but each proposal would need to be assessed on its facts. No 'radical transformation' has been suggested in the current matter.
11. Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 stressed at [56] that the comparative assessment was "not to be done in a 'sterile vacuum' by comparing the bare terms of the consent is originally granted and the consent as modified, but rather is to include an appreciation, qualitative as well as quantitative, of developments and the environmental impact of those developments." To reduce the proposed modification to a series of metrics (such as number of lots, everywhere of land on which vegetation is preserved) and the setting of an arbitrary value which would determine the boundary between "substantially the same" and "different" would not allow for consideration of qualitative aspects of the change. These sentiments were endorsed by Preston CJ in Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 at [57] (see also Arrage at [28]), who added that the environmental impacts of the development should also be included in the comparative assessment. The Chief Judge continued at [58] stating: "In the case of the development as originally granted, the most reliable evidence to evaluate the development as originally approved and its environmental impacts will usually be the actual development that has been carried out in accordance with the original consent." In the present matter no actual development has occurred so that assessment must be a comparison of what was intended as specified in the approved plans and conditions annexed to the development consent with what is now proposed.
12. Stein J in Vacik held that "substantially" (in the phrase "substantially the same') meant "essentially or materially or having the same essence" - inclusion of 'the same essence' brings in qualitative values, which expands the assessment of similarity beyond mere numerical comparisons, so there can be no single metric which can be an absolute arbiter and assessment necessarily extends into subjective evaluation. For many qualitative comparisons there may be substantial agreement, not only between experts but also between members of the broader public, but there will be occasions when widely different views are held and consensus will be unlikely.
13. It has also been long accepted that s 4.55 (and its predecessors) is beneficial and facultative (Michael Standley at 475).
14. Although there are differences between what was approved in 2017 and what the development will be, if constructed incorporating both the 2019 and current modification proposal, that in itself does not mean that the now proposed development is not substantially the same is that originally proposed. "87. … The real question is whether that difference makes the overall development anything other than substantially the same as that approved. This must not involve undue focus upon elements of the development that are different, but a comparison of the whole…" (citation omitted) (Applicant's submissions dated 30 November 2022 p 18 par 87)
15. Section 4.55(2) of the EPA Act establishes a jurisdictional requirement about which I need to be satisfied before I have power to approve the modification application. In many cases, the Court addresses jurisdictional requirements early in the judgment, because if it finds that it has no power that terminates the matter. In the present case, both parties discussed the jurisdictional question of whether or not the development proposed would be substantially similar at the end of their final submissions as it was necessary to explain the history of the matter before addressing whether the proposed modification would result in substantially the same development.
16. On that question, the parties had different positions. The Respondent's view was: "114. … It is the fact that the development consent if modified, will continue to relate to a 21 lot subdivision. Agreed stormwater and drainage infrastructure will continue to be a feature of the development. however, if the Applicant's proposals in relation to condition 18 (its deletion) and the adoption of the 2021 VMP (or a similar VMP) are approved, then the qualitative nature of the development will change." (Respondent's submissions dated 1 December 2022)
17. Development for a 21-lot subdivision was granted by the Court in Aesthete 2. The increase in lot number was to be achieved by developing four extra lots at the western end of the site. The western end of the site was not proposed to be development at the stage of the 2017 judgment (Aesthete 1) because of its then zoning. The reason for the restrictive zoning was because of the presumed presence of certain plant communities at the western end of the site. At the time of the hearing in Aesthete 1, it was known that there had been misidentification of the vegetation, but the zoning had not been changed. It was therefore probably inevitable that after the basis for the zoning was shown not to be the case, rezoning would occur - and this indeed was what happened.
18. However, the comparison required now is to the 2017 consent, regardless of whether or not the consent authority then was aware of the 'true' nature of the vegetation.
19. In Aesthete 2, the parties reached an agreement, and the Commissioner had no basis for rejecting the agreement, and that agreement must have included that the amended development consent would be substantially the same as that approved for the 2017 matter (Aesthete 1). An increase in lot number from 17 to 21 is an over 20% change but the outcome is still a subdivision, and the parties must have concluded that the change in number of lots was not of such magnitude to cause the outcome to be a radical alteration.
20. Although the numerical hurdle may have been overcome, whether the outcome was qualitatively substantially the same does not appear to have promoted any discussion between the parties. However, what was originally intended to remain an area of bushland was made available for development. There is no evidence for the presence of any currently listed threatened species or ecological communities on the site, but it needs to be remembered that that currently listed species are only a small fraction of the species which could, if data were available, satisfy the criteria for being listed. An assessment of the likely impacts of development on threatened species is likely to be an underestimate of the 'real' impact - but this criticism would apply to all assessments of any development, and there is no evidence that the Applicant's expert's data collection and species' identification is inferior to that of other practitioners. We are equally ignorant of the effect of loss of four lots worth of bushland on functional ecological processes at the scale of the subject site.
21. In Aesthete 2 neither party contended that the ecological outcome would be substantially different from that of Aesthete 1, and given the unanimity of the parties, in a s34 agreement, it was not open to the Court to conclude differently.
22. The current modification application does not alter the number of lots, and the changes that are proposed are essentially procedural and timing differences but with changes to the drainage design and aspects of the road construction. These raise a number of issues which need to be addressed, but they are not such that they would render the development not be substantially the same. There is one area where the proposed changes are more than procedural and implementational and that is in the proposed changes to the drainage system design.
23. There have been four designs for the drainage system proposed for the site of the history of the matter (see Tcpt, 24 August 2022, p 5(38-45)). The original application in 2016 included a drainage design by Martens, which was subsequently revised by Martens and Cardno, and it was that revised version which was incorporated in the agreed conditions of consent. In the current matter a new design prepared by J Wyndham Prince, was included in the application put to Council. This was discussed extensively in joint conferencing resulting in a further revision version, which is what is currently proposed. This version was developed by Dr Brett Phillips (from Cardno) in association with Dr David Crompton of J. Wyndham Prince.
24. In joint conferencing between the parties' engineers, there was agreement as to the final form of the design of hydrological and drainage works.
25. The plans included designs for raingardens in individual lots, which were to be constructed as part of the subdivision works - so that they would be completed prior to the sale of the lots to individual owners who would apply for development consent for individual dwelling house on their lot. In the supplementary expert report of the engineers (Ex G), Mr Compton and Ms Hawken agreed (on p 3): "What is not included in the subdivision works We agree that all the lot scale raingardens shown on the plans by J. Wyndham Prince in the expert report of 18 August 2022 are indicative only and that the actual raingardens will be constructed with the future dwellings and that the locations may change. Therefore the earthworks required to deliver the bio-retention raingardens are to form part of the separate application for the future dwelling construction and are not required to be delivered as part of the Subdivision works."
26. There was agreement between the parties that this final version of the plans for drainage was an improvement on the previous versions. The northern swale location was observed during the site inspection, as was the drainage from the site through to its eventual discharge at the existing headwall. I was satisfied by the information provided, and by my own observations, as to the reasoning behind the proposed design, and why it would be preferable to the previous versions.
27. Mr Pickles, in the Applicant's submission stated: "90. Given the agreement of the stormwater engineers that the amended plans are a preferable and a more refined solution to the original scheme, it can hardly be suggested that the modification of the consent through the amended stormwater plans should be rejected." (Applicant's submissions dated 30 November 2022)
28. Notwithstanding the agreement between the parties about the design of the drainage works, an issue arose because the Respondent seeks to amend the timing of the construction of the drainage works and whether or not the raingardens would be constructed by the current Applicant or by individual lot holders at some time in the future.
29. The Applicant proposed that: "9. The application and the plans sought to be approved as part of the application show stormwater drainage works to construct raingardens for each of the lots. The applicant proposes to carry out that work in conjunction with the subdivision work." (Applicant's submissions dated 30 November 2022)
30. Raingardens and associated infrastructure within each lot were proposed in Aesthete 1 and 2, with proposed overland swales in lots 1-5 and 19-21. "10. … The consent required final engineering and design plans before construction certificate. The plans approved as part of the construction certificate were consistent with condition 6. They showed raingardens in lots 4-9, 11, 13-16, a flood mitigation tank in lot 12 and OSD tanks in lots 1-3 and 17-21. To that extent, the consent did anticipate stormwater works in each lot." (Applicant's submissions dated 30 November 2022)
31. The raingardens and infrastructure within each lot now proposed are different from that which would have been the result of Aesthete 1 and 2. However, as I understand it, the end purpose of the relevant works is unchanged, and the changes are mainly a consequence of the agreed improved design.
32. The Applicant in its submissions in pars 11 and 12 argued: "11. Critically, nothing in the conditions of consent prevented those works from being carried out as part of the subdivision, before subdivision certificate. In fact, condition 35 required all stormwater and drainage works to be carried out and included in the construction certificate and condition 68 required all works including works within the lots to be carried out before subdivision certificate. Condition 17 of the consent as modified, even required a detailed schedule of plantings to be implemented in the bio-retention system before construction certificate. 12. This observation is important for what the Council now contends in its proposed conditions of consent. The Council is now seeking, through this appeal, to significantly modify the way the consent was proposed to operate with respect to stormwater and drainage infrastructure. It seeks to do this not for any substantive objection to the work, but rather because it wishes to use such amendments as a weapon against the amended VMP. The Court should see through this façade."
33. The language of the final sentence of par 12 attributes motives to the Respondent which are speculative and there was no evidence in Council documents or arising in cross examination which supports the motive which the Applicant identifies. However, I would agree that the proposed modifications to the conditions and VMP would significantly change the way the consent would operate compared with what the Applicant had previously understood to be the intent of the conditions in Aesthete 1 and 2.
34. The Applicant's view expressed in submission par 13 is that: "13. … The difficult[y] for the Council is that while it takes no issue with the engineering and drainage works and, in fact, seeks to make the plans part of the consent, this does not trigger a need to re-visit the timing of the such works. There is no basis to seek to modify the consent in the way proposed by the Council to remove such works from the subdivision works approved. Such a position is untenable. It would have the consequence of severing parts of the approved works from the consent already approved so that each landowner would require a separate consent for the raingardens in each lot with unknown consequences for the final outcome. This does not arise out of the modification and is not orderly and economic development." And then in pars 15-16: "15. Importantly in this respect, while it is undoubtedly true that it is not essential that the earthworks associated with the raingardens be undertaken at the time of subdivision, it is prudent, for reasons stated by Mr Crompton: WITNESS CROMPTON: It's not essential. There may be some benefits to ensure that the overall outcome is consistent with the approval to ensure everything is delivered in a suitable fashion but the reality is those rain gardens treat runoff from the houses, and those houses are, are not part of the subdivision works. (T 24.08.22 p 33 lines 14-18) (emphasis added) 16. The fact that the houses are not part of the subdivision works does not mean that the raingardens are not or should be now severed from the subdivision works. In any event, as already explained, the consent as first granted and as modified not only authorised the (albeit different) drainage works to be carried out, but required them to be carried out. It makes no sense to now seek to carve out such work from the subdivision consent. If anything, it is the Council, not the applicant seeking to modify the consent in a fundamental way."
35. The present matter is a modification application that has been brought by the Applicant. To the extent that the Respondent's proposed changes go further than editorial fine tuning of the conditions, the Respondent's proposed changes would, if accepted, amount to a modification even though not one initiated as a modification application. The Respondent has no power to modify the application, and conditions that would apply if the modification were to occur must relate to the Applicant's modification application as proposed, or amended by the Applicant during the course of the hearing.
36. The Applicant considers that the Respondent's approach makes no practical sense: "17. The Council's approach also makes no practical sense in three other important respects: (a) First, the raingardens for lots 9-20 are, in any event located within the batter and construction zone for the road. Those areas are necessarily to be disturbed for construction of the road. It would be irrational to preclude the earthworks to be undertaken for those lots as part of the subdivision works. (b) Secondly, the raingardens for lots 10-19 will also require inter-allotment drainage lines to connect to the easement between lots 11 and 12 and to connect to the existing road drainage at the existing terminus for Luchetti Avenue. It would not be orderly or economic to leave that task to individual lot owners to undertake such work given that adjoining owners may not yet have constructed the connections. For example, if lot 14 were sold first it would dependent on lots 12 and 13 to make connection to the inter-allotment drainage first before the system could operate. (c) Thirdly, given the proximity of the raingardens to the drainage lines it makes no sense to construct the drainage lines as part of the subdivision works but not also undertake the earthworks for the raingardens." and argued in par 18 that: "18. … the amended proposed stormwater works are agreed to be a preferable outcome to that originally approved. The consent should be so modified regardless of the outcome in relation to other aspects of the proposed modification."
37. The Respondent's submissions on the construction of the raingardens were: "86. The possibility of excluding the rain gardens from construction and subdivision stage was addressed in the evidence given by Ms Mach (Transcript - 25 August 2022, page 38, line 17). In the Respondent's submission, the rain gardens are not an essential component of the subdivision works, given that they will be installed to meet the requirements of the individual dwelling houses that will ultimately be constructed on the 21 new lots created by the subdivision. 87. Further, there is sense in postponing the design, location (and ultimate) construction of the rain gardens until the proposed construction of those dwellings becomes the subject of a development application. The size of the dwelling houses and their location within the lots, and the location of the rain gardens, would be appropriately determined at that time. The Respondent, through its proposed amended consent conditions, submits that this possibility should be taken up the Court."
38. The evidence of the Respondent's ecology expert, Ms Mach was: "WITNESS MACH: That's right, and the, the approach in the accepted VMP allowed for retention. Once the clearing has occurred in the building envelopes and the rear of the lots allowed for - sorry, it's difficult without the tree which of - a tree survey and a tree retention removal plan to, to clearly show what, what that would look like. But I believe that the accepted VMP had considered the canopy within the lots and proposed to remove 16 trees from the - in the tree area, and those trees had been informed by a bushfire consultant to, to achieve a compliant IPA, and that was accepted at the time in lieu of-- PICKLES: It was but-- WITNESS MACH: A, a, a - a tree retention removal plan to clearly show the 15% would be complied with. PICKLES: But it also predated the precise location of - or the location on the stormwater plans of rain gardens in each of those lots 10 to 18, didn't it? WITNESS MACH: I believe they were indicative-- PICKLES: There were none - there were no indicative rain gardens in the lots. There were rain gardens in the public - within the public works but there were no rain gardens specified on the lots. WITNESS MACH: These rain gardens are still not required at the subdivision state or desirable to be built at subdivision stage. PICKLES: Well you say that, but the fact of the matter is, they're shown on the plans and if those plans are approved and the engineers agree that those plans are suitable, there's nothing to stop the developer from building them is there? WITNESS MACH: I don't believe that's a point of agreement. PICKLES: Well where in the conditions does it say that the stormwater works should stop short of completion of the work shown in the plans approved-- CORK: Commissioner, I object to the question. We don't have final conditions. PICKLES: No no, but the approved conditions of consent. The existing approved conditions. COMMISSIONER: Hasn't Mr Pickles just indicated that the rain gardens are not depicted on those approved conditions in the location that he is now putting to the witness? PICKLES: No. There was a series of rain gardens in the public domain. We've now moved them into the private realm, but that doesn't - I don't think that affects the proposition I'm putting about the condition. CORK: You're putting the proposition, assuming that the rain gardens were constructed in the rear of - or in the locations depicted, what would follow from there but certainly the Court hasn't made a decision as to whether there would or would not be a condition understanding you might object to one, saying the rain gardens are not to be constructed at the time of the subdivision. PICKLES: Well let me put the proposition another way perhaps. You see, the existing condition 35 says: "To ensure suitable access to the proposed lots, the proposed road is to be formed, sealed and kerb and gutters for its full length and the applicant is to carry out all works including drainage works that are necessary to make the construction effective. And the works are to include second dot point, "All stormwater drainage as required by the conditions of this consent." If that condition were left in, the rain gardens may well get constructed along with the remainder of the stormwater works might they not? WITNESS MACH: It wasn't my understanding that the rain gardens were - stormwater drains - I - it wasn't my understanding that the original plans required the rain gardens to be constructed. I, I think they're indicative. PICKLES: Indeed, but these are more than indicative and these are shown on the plans, so that's the proposition isn't it? We've moved from a position of indicative to something a little more certain. So I'm just wondering why you make the assumption that the rain gardens couldn't be constructed or wouldn't be constructed during the subdivision works? WITNESS MACH: Well it's dated, I believe, in the VMP and also - yeah, look I'm sorry, I'm not very confident on this area. PICKLES: Either way, let me put it on the alternative approach. Why does it matter? Because ultimately, we have to look at this VMP from the perspective of a subdivision that's going to be completed, didn't come to market and each of these lots will presumably have a dwelling on it with a rain garden-- WITNESS MACH: Yes. PICKLES: --because that's what the conditions will require. WITNESS MACH: That's right. PICKLES: So don't we have to look at the future retention if under previous VMP, you looked at this in the context, you accepted - the council accepted the VMP as it was on the assumption that there would be complete tree removal and under scrubbing in the areas of MZ2? WITNESS MACH: Yes. PICKLES: And those were the building envelopes. WITNESS MACH: That's right. PICKLES: Right? So why don't you make the same assumption about the rain gardens? WITNESS MACH: So-- PICKLES: Because that will happen won't it? WITNESS MACH: Because the size of the rain garden will depend on the impervious areas of the - the dwelling that will be built there and should respond to that dwelling. And also, would normally be conditioned to avoid trees that are retained within the lot rather than the other way around. PICKLES: Yes, that may be so, but the point being, that whichever way - it may be that a particular lot owner finalises a location, on your assumption, finalises a location for a rain garden that's in a slightly different location to what is shown on this plan, but we're still talking about roughly the same dimensions of what's left over aren't we? Between the building envelope and the infrastructure? It's not going to change the - it might change its precise location on a particular lot, but it's not really going to change the major dimensions of what we're talking about. WITNESS MACH: I think the size shown on this plan is a size of a rain garden which had an additional detention capacity rather than just - I'm not sure, but I think the size of the - these rain gardens is excessive for what would be required for a future dwelling. PICKLES: Right. I don't know that you can say that Ms Mach. They are what has been agreed by the stormwater engineers that is necessary to fulfill a building envelope of the size shown on the plan. WITNESS MACH: I don't think they're agreed on. PICKLES: Well. Needless to say they require even if the physical infrastructure of the garden itself might be smaller, they still require grading don't they? And will require, in order to avoid a depth of more than 300 mls will require grading around them and that will require vegetation removal. WITNESS MACH: It may require - it may require vegetation removal, but it - it is unlikely given that they will all - already - there are already cleared areas to the back of those lots. Disturbed access areas and there will be additional tree removal to - disturbance to establish the stormwater and sewer pipe, so it may not result in additional removal, especially if they're positioned to avoid existing vegetation. PICKLES: Right, but the 16 trees assumed under the previous VPM(as said) were without any assumptions about this rain garden infrastructure in the rear gardens of those lots. WITNESS MACH: That's right. PICKLES: And so, stepping back from that proposition, you would have to expect would you not, given the need to provide rain gardens in each of those northern lots that there will be less vegetation capable of being retained between the building envelopes and the rear boundaries? WITNESS MACH: That's not necessarily the case, no. It is likely that there would be suitable locations to not require further vegetation removal once-- PICKLES: All right, now, but you see, when we - you look at this in the context of the objectives of the zone and you say - well you have said that you don't think that this is meeting the objectives of preserving the native bushland. Don't you have to look at this across the whole site? Not on necessarily on every single lot, but across the whole site? WITNESS MACH: You mean the retention of-- PICKLES: Yes. WITNESS MACH: --existing bushland? PICKLES: Yes. There may be some lots on which there is no or minimal retention or preservation of trees but other lots where there's a lot of preservation of trees. WITNESS MACH: It will depend on what the location of existing vegetation, yes." (Tcpt, 25 August 2022 pp 37(44)-41(24)).
39. Ms Mach advocated that the drainage plan should be carried out in a piece-meal fashion, and that outside the area that would be cleared for subdivision works, clearing within the future 21 lots should be minimised until such time as the owners of the individual lots separately applied for development consent for construction of individual dwellings.
40. There was agreement between the parties' experts that the design of the drainage system was an improvement on what had been proposed in earlier iterations, and I concur with this.
41. Although it is agreed that there is no absolute requirement that all the construction works associated with the subdivision occur at the same time. I agree with the submission of the Applicant that it makes a great deal of sense to complete all the works during the same phase of the subdivision. This is, in my view, particularly so for the northern drainage swale and for the raingardens which feed into it. The argument is perhaps slightly less compelling for the lots south of the new road, but the drainage proposal was designed as a coherent whole. Once the subdivision is completed, then the owners of each individual lot would need to apply for development consent for whatever was to be constructed. That would include not just the dwelling but also the drainage system if it had not already been built. Whether the lots would be marketed altogether, or whether there would be sequential releases was not discussed during the hearing. It is possible that new lots might be purchased over a period of several years. Once individual lots are purchased there may be a further delay before the new owners lodge development applications. The drainage plan is designed for the eventual situation when there would be dwellings on all individual lots, but also for the situation where there would still be runoff from undeveloped lots that would need to be incorporated into the overall scheme.
42. Ms Mach suggested with individual owners of lots, the desired dwelling could take a number of forms - for example single storeyed and two storeyed. The Respondent considers that there could be many potential designs for dwellings in the individual lots and that subject to a design meeting the applicable development standards, the owner should not be restricted as the choice of design and the development applications would be assessed on their merits.
43. The advantage of the Applicant's approach is that the coherence of the drainage design would be achieved. The advantage for new owners is that they would not need to design the drainage from their lot, and for at least that aspect of the development application the Council's position would be pre-determined. If each owner could redesign the drainage on their lot, it would require that the Council assess the drainage scheme de novo and the owners submitting the individual drainage plans may have to engage hydrological experts whose suggested design might differ from that previously considered appropriate by council so that the assessment outcome would be uncertain and both parties would be exposed to extra time and expense before the matter were determined.
44. I am of the opinion that the drainage design should be implemented in the form agreed to in the joint expert's report. There is agreement that the design is better than the previous designs suggested; there are changes between the original design and the current design; the differences are such that the outcome would be for what is still a substantially similar development, so that there is no jurisdictional barrier, and assessment would be on the merits of the proposal.

The Vegetation Management Plan (VMP)

1. In Aesthete 1, Condition 18 required the Applicant to prepare a VMP. To satisfy Condition 18, Enviro Ecology (the Applicant's ecology expert, Mr Whyte) prepared a VMP, which was accepted by the Respondent's in-house ecology expert, Ms Nagel, on 18 March 2020 (2020 VMP).
2. The Respondent in submissions described aspects of the 2020 VMP as follows: "21. In the Respondent's submission, it is relevant to note that the 2020 VMP was prepared and submitted on behalf of the Applicant. The 2020 VMP is a comprehensive document. At page 5 of the Respondent's Bundle, section 1 of the 2020 VMP states: The VMP has been prepared to address Council's Vegetation Management Plan (VMP) Guidelines and demonstrate compliance with Blue Mountains Development Control Plan (BMDCP) Part C 4.4 Asset Protection Zones and relevant NSW Rural Fire Service conditions, standards and guidelines for APZs. 22. The aims and objectives of the 2020 VMP are found in section 1.1 (page 7) of Exhibit 1. 23. Vegetation management and vegetation protection is addressed at page 24 of the 2020 VMP (page 33 of Exhibit 1). At page 26, the 2020 VMP includes Figure 3-1 which identifies three zones within the development site as follows: • MZ1 (Impact Zone - complete clearing) • MZ2 (Complete Tree Removal and Under-scubbing) [sic] • MZ3 (Selective Shrub Removal to achieve 15% cover) [MZ stands for Management Zone] 24. Zone MZ1 is the zone within which road construction, drainage and other engineering works will be carried out. Complete removal of vegetation will occur in these areas. 25. Zone MZ2 was proposed to be the building envelops identified within each of the 21 lots proposed to be created by the approved development. 26. Zone MZ3 was the area proposed under the 2020 VMP to be left after the identification of the road construction zone (MZ1) and the building envelope zone (MZ2). Within MZ3 selective vegetation removal was to be undertaken to achieve the 15% cover required under the Bushfire Safety Authority issued in respect of the development by the NSW RFS." (p 5) Figure 4 Delineation of protective fencing and Management Zones (Source: Ex 1 p 35 Fig 3-1)
3. In the Applicant's submissions, the need to amend the VMP arose from the amendments to the drainage plan, and from the extension of the subdivision to include four extra lots at the western end of the site: "21. In part, the need to amend the VMP arises from the desirable amendments to the drainage and infrastructure plans. It is an inevitable consequence of the enlarged areas for drainage works (raingardens) and the drainage lines that more vegetation will need to be removed along the northern boundaries of the site. … 28. Further, as Mr Whyte recognised, the original consent did not include development of the western end of the site because that part of the site was, at that time, differently zoned: Ex 6 p10. Accordingly, in large measure the VMP was necessary for a significant area of the site that was not being developed. Once the consent was modified to include the development of the western section, the ability of the VMP to control retention of vegetation within the lots was necessarily more limited given that the consent anticipates removal of vegetation in the subdivision work construction zones and much of the vegetation in the building envelopes." (Applicant's submissions dated 30 November 2022)
4. The Respondent referred to weed management as a specific component of both the 2020 VMP and the revised 2021 VMP. The 2021 revised VMP, dated December 2021 is behind Tab 18 of Ex C. "29. In the 2020 VMP the relevant references are found as follows: • Section 3.5 - Proposed Weeding Activities (page 40) • Section 3.6 - Weeds (page 40) • Section 3.8 - Weed Management, Suppression & Control (page 44) • Section 3.8.1 - Primary Weeding (page 44) • Section 3.8.2 - Secondary or Follow-up Weeding (page 44) 30. The 2021 VMP addresses weeding in each of the following sections: • Section 3.5 - Proposed Weeding Activities (page 31) • Section 3.6 - Weeds (page 31) • Section 3.8 - Weed Management, Suppression & Control (page 36) • Section 3.8.1 - Primary Weeding (page 36) • Section 3.8.2 - Secondary or Follow-up Weeding (page 36) • Section 3.8.3 - Maintenance Weeding (page 37) 31. In subsection 3.8.1 of the 2020 VMP the following statement appears: Primary weeding is the initial weeding. Primary weeding is to be carried across the entire VMP area prior to works commencing within MZ1-MZ3. This involves the removal of weeds through herbicide use and hand removal. It is important to note primary weeding usually initiates new growth of both weeds and native species. Primary weeding of the VMP may take up to 1 week. 32. One important difference between the wording in the 2020 VMP and the 2021 VMP is that the words underlined in the quote set out in the previous paragraph have been omitted from subsection 3.8.1 of the 2021 VMP. As a result, the 2021 VMP leaves open the possibility that no weeding could be undertaken before the entire site is under-scrubbed and mulched. While the Applicant may well intend that weeding be carried out before any under-scrubbing and mulching takes place, that issue should not remain uncertain. Condition 18 in the development consent should remain and should mandate the conduct of weeding before any mulching or under-scrubbing takes place, if the development consent is modified in relation to vegetation management." (Respondent's submissions dated 1 December 2022)
5. One of the identified weeds is Radiata Pine (see map below) and removal of the pine trees was identified as part of weed management in both the 2020 and 2021 VMPs. The pines are concentrated at the eastern and western ends of the site. Figure 5 Hollow-bearing trees and exotic pines recorded from subject property -VMP area (Fig 3-2)
6. The majority of weedy species identified on the site are shrubs and herbs.
7. In this regard, the RFS requires the entire site to be managed as an IPA, which requires that all the vegetation on the site be reduced to achieve safer fuel loads. If Radiata Pine were not to be completely removed, they would have been reduced in number as part of the need to limit tree density and canopy cover. In the IPA there would need to be a reduction in the shrub, ground and litter layers (as discussed above at [108]-[113]).
8. Some of the work would result in removal of weed species. Particularly in the case of herbaceous weed species there is likely to be regeneration after the initial clearance, as well as reinvasion. Weeding will be an ongoing task, but I consider that the RFS requirements require that the whole site be managed as an IPA as soon as the subdivision certificate is granted (Ex 1 Tab 8 p 117).
9. Even if individual lots are not developed for some time (possibly for years) the Applicant, or any successor in title, would be required to maintain the whole of the site, that at a particular moment in time, has not been sold to an individual owner who would similarly be required to maintain their lot.
10. Planning for Bush Fire Protection 2019 states that an IPA would typically consist of "mown lawns and well maintained gardens", and it is agreed that the whole site at the time the subdivision certificate is granted, and the individual lots outside the building footprints would not be of this 'typical' character.
11. There is no indication in Standards for Asset Protection Zones or either Planning for Bush Fire Protection 2006 or 2019 that the specification for management in IPAs would be relaxed in the event of a particular site not being typical for an IPA.
12. Thus, Condition 5 must be read as being subject to the RFS standards. The IPA requirements apply when the subdivision certificate is issued. It will not be possible for all trees on individual lots to remain until the dwellings are constructed.
13. This is not to say that the clearing now proposed by the Applicant should occur to the extent suggested.
14. The Respondent in its submission identified what it considers to be a major change proposed in the version of the modification application now before the Court. "36. A critical change proposed by the Applicant through the modification application is the deletion of condition 18 (which specifies the requirements for a VMP) and the effective replacement of that condition with a very short new version of condition 5. That new condition is proposed to read: Vegetation shall be cleared in accordance with the Vegetation Management Plan prepared by Dr [sic.] John Whyte dated December 2021 and identified in condition 1. 37. The Applicant's proposed deletion of condition 18 and the substantial elimination of condition 5 raises a critical question for consideration by the Court in these proceedings. Why does the Applicant propose those changes?" (Respondent's submissions dated 1 December 2022) [The Applicant requires substantial changes to Condition 18, and the 2021 VMP deletes large parts of the condition, but not its total deletion.]
15. The 2021 VMP differs in a number of ways from the 2020 version: "39. In contrast to the 2020 VMP, the 2021 VMP identifies only two zones, designated MZ1 and MZ2, as follows: • MZ1 (Impact Zone - complete clearing of trees and forest mulching of shrubs and ground covers). • MZ2 (Forest Mulching & Selective Tree Removal). 40. Figure 3-1 at page 27 of the 2021 VMP identifies the MZ1 and MZ2 Zones. 41. In contrast to the 2020 VMP, the 2021 VMP is appropriately understood to propose the removal of every tree within Zone MZ1 and the under-scrubbing and mulching of all vegetation within MZ1 using the "Posi Track" machine identified in the Supplementary Statement of Evidence prepared by Mr Whyte and filed as Exhibit H in the proceedings. 42. Paragraph 3 within sub-section 3.1.1 of the 2021 VMP reads as follows: All vegetation not nominated for retention (MZ1) is to be under-scrubbed using mechanical removal prior to any construction activity or bulk earthworks. Approved vegetation removal operations in the vicinity of retained trees within (MZ2) are to be undertaken in a manner that avoids canopy damage and soil compaction. Such works are to be supervised by a qualified Arborist/Ecologist. Under-scrubbing works are to be undertaken to ensure that the soil disturbance is minimised and that the vegetation which is mulched can regenerate. Mulch retained in MZ2 is to be less than 100mm depth." (Respondent's submissions dated 1 December 2022)
16. The Respondent discusses the letter written by Mr Compton - this had been at the core of the issues discussed in Aesthete 4.
17. The letter sought to establish that to permit safe and efficient work on the site that more vegetation was required to be cleared than the Respondent thought was necessary. "45. The Compton letter concludes with paragraph 12 which reads: 12. A combination of the work I have described, together with those associated with installation of the sewer, pedestrian pavement, street lighting, electrical installation and provision of telecom services, clearing of the building pads and associated compaction and batter, infill and interallotment drainage, stormwater and plumbing services, and construction of retaining walls around the [perimeter] of the subdivision necessitate the proposed vegetation removal identified in the proposed VMP. 46. It is, in the Respondent's submission, fair and reasonable to characterise the Compton letter as making statements and submissions which, from the perspective of the construction work to be dictated within the site, and issues of practicality and suggested safety in relation to that work, are relied upon to conclude the vegetation removal proposed in the 2021 VMP is necessary to establish the IPA that must be established prior to the issue of the subdivision certificate. In other words, the practicality of construction dictates, in the Applicant's opinion and submission, why the removal of vegetation as proposed in the 2021 VMP is necessary." (Respondent's submissions dated 1 December 2022)
18. Mr Compton had been identified to the Court as a civil engineering contractor with considerable experience in the Blue Mountains LGA. It was not clear (at least to me) whether his observations were intended as fairly general statements based on long experience, rather than a particular analysis of the site.
19. Mr Pickles, however, refers to him as 'the primary contractor' (Applicant's submissions par 36). Given that at the time the modification application had not been approved, so that if there had been a tender process to select a contractor, those making bids would have done so lacking detailed knowledge of the works required. If Mr Compton had been appointed as the primary contractor, then if he had been permitted to give evidence, then his intended role as contractor would need to have been identified, and his ability to give unbiased evidence in his role as an advisor to the Court, rather than being a spruiker for the Applicant's cause, might have been called into question.

Role of the Blue Mountains Development Control Plan 2015 (DCP)

1. The management of vegetation is addressed in the LEP and DCP, and the Court must consider the objectives of planning controls in both. LEP 2015 and the DCP contain provisions that apply to vegetation conservation and management. It is important that these provisions are considered but they cannot be used to override the requirements of the RFS.
2. Section C2.1.5 of the DCP contains provision for protection, restoration and conservation of areas approved for development. "(a) 'the protection, restoration and conservation of areas of indigenous vegetation outside areas approved for development, including asset protection zones. These are to be retained as 'natural areas for the life of the development'; and (b) 'the progressive restoration of cleared or degraded land which is outside the areas approved for development, including asset protection zones, to an appropriate reference condition or pre-existing locally indigenous vegetation community'. (Applicant's submissions dated 30 November 2022 par 45(a) and (b))
3. However, the measures apply 'outside' areas approved for development. If the 21-lot subdivision is approved, along with the access-related development, then there would not be areas 'outside' the development area. The clauses both have the wording 'including asset protection zones' but do not make mention of either IPAs and OPAs, and do not mention the extremely restrictive nature of the requirements for IPAs.
4. Although section C2.1.5 was raised in the Applicant's submissions, I am not certain that it has any application to the matter, and the point was not discussed by the Respondent, and I do not know whether this section (or anything similarly worded in the DCP for another area) has ever been discussed in litigation and do not propose to consider the issue.
5. The topic of how and when clearing was to occur was revisited later during the cross-examination. "CORK: Mr Whyte, isn't it the fact that there are two different ways of achieving the outcome that you are seeking to achieve and they are these: 1) first way, of establishing the asset protection zones is to follow the methods outlined in the approved VMP. The other way is to follow the methods proposed in the proposed VMP. Both of them will get you to the same destination? WITNESS WHYTE: It goes to - in response, the amended VMP has been prepared with two considerations. A) the amended CC documentation, that's the primary driver of the VMP, but also to rectify through this process what was put to me as the required management methods on the site to establish an APZ. Now as I said before, I wasn't in agreement with the methodology. It was put forward in the original annotated VMP, but it was put to me to get it signed off that this is what was necessary. In removal of vegetation within the MZ3 is not a practical way for establishment of an asset protection zone in a [large] scale site and when you consider the document, that is planning for bushfire protection which requires maintenance of the ground fuels to one - to 8 mm, how does one establish that or maintain that without the use of mechanical removal and obviously mechanical machinery in those areas? If you - if you exclude mechanic machinery from those areas, how do you - you basically using hand tools like rakes to get rid of that leaf material. It's completely impractical and that's why through this amended VMP I sought to rectify the impracticality as in - of the approved VMP. But yes, you are correct Mr Cork that you would potentially still get the same result with the hand removal method. CORK: And would not, the hand removal method, allow you to retain clumps of vegetation on the site rather than mulching the entire site? WITNESS WHYTE: That's - well that's where there's a discrepancy in the appearance because my opinion is in a place mulch environment, that the shrubbery will still regenerate and it's at that time that you could implement an action to identify the areas for protection to achieve that 10%. It's council's opinion - well Ms Mach's opinion that you're removing the vegetation, it was not my opinion that the mulching removed the vegetation. Yes, it will reduce in height, but opinion is it will regenerate and it's that - at that time once you've implemented your - your hole - your hole raking just for the - for everyone's information and hole raking is a method that you use to reduce the fuel load to be consistent with that of - of the guidelines to 8 millimetre and it's - it's a very effective method to produce the mulch coverage to get the sign off at the subdivision stage. CORK: Mr Whyte you have referred to in your supplementary report, the one that was received or served on Tuesday night and you've referred to the regeneration in sites, parts of the site that have been previously under scrubbed, have you not? WITNESS WHYTE: That's correct. CORK: Isn't it the fact that those parts of the site have remained undisturbed for approximately four years, that no other activities have taken place in the areas that were under scrubbed in 2018? WITNESS WHYTE: There a - there's a little area on the northern side of the lots 17 that's been disturbed due to the implementation of hazard reduction warrants but I understand that the - the residual area that was previously mulched is - has been left for that duration of four years. CORK: But for the majority of the site, apart from that small disturbed area, there's been no other disturbance and the vegetation has been able to regenerate without any other activities taking place. No movement of vehicles et cetera? WITNESS WHYTE: Are we talking to the, to the past past or are we talking to the-- CORK: No we're talking 2018 to now. WITNESS WHYTE: Yes. Yes, so 2018 to now. No, there doesn't appear to be any other disturbance works we've gone - I just explained. CORK: That's all right. In the period from 2020 until now, there have been significant rainfall events that are a typical in eastern Australia, or seen in the Blue Mountains. That's correct isn't it? WITNESS WHYTE: Yes, we have had higher rainfall events but-- CORK: I'm sorry, could-- WITNESS WHYTE: Yes, we have had higher rainfall events, I can't quantify how much more rain we've had, we've had a lot of rain, but I can't quantify that. CORK: And that higher rainfall would certainly promote regeneration in your opinion? WITNESS WHYTE: Yeah, potentially, yes. CORK: Mr Whyte are you telling the Court that you signed the approved VMP, not because you believed in its content, but because you considered it necessary to secure the approval of the council? WITNESS WHYTE: I signed off on the VMP on the basis that it will get from point A to point B, but the methodology from getting point A to B isn't - isn't Mr White's on the - approved methodology. CORK: But I take it from your earlier answer that you accepted that the methodology could achieve or would achieve, not could, would achieve the outcome that was required even though you didn't-- WITNESS WHYTE: Yeah look, it would achieve the establishment in part but in hindsight, the level of retention as identified under that former approved VMP is - it's too great. If you were to - if you were to implement removal and part of retaining the trees you could be completely inconsistent with the requirements for the tree retention and the canopy coverage. That's what was assumed within managements zone 3, that is that that those trees will be retained. So this VMP is also sought to rectify that issue with the projective voltage cover of the starter and let's also have consideration to the new guidelines. CORK: Mr Whyte, under the proposed VMP, you're proposing the removal of all trees in the area that you now designate as MZ1, are you not? WITNESS WHYTE: Yes, that's correct. CORK: And perhaps if I could take you to that proposed VMP and Commissioner that's found under tab 18 of the development application exhibit. Mr Pickles you'll have to - that is exhibit C if I'm correct. PICKLES: Yes. WITNESS WHYTE: Yes. Tab 18. PICKLES: Yes. CORK: Mr Whyte, could you go to page 27 of the proposed VMP being the document that is dated December 2021? WITNESS WHYTE: That is correct, yep, I'm there. CORK: And that has zones MZ1 which is identified by hatching in a basic blue colour across the majority of the site? WITNESS WHYTE: Yes. CORK: And then it has area MZ2 which is identified in yellow and basically in three distinct areas on the western and southern sides of the site? WITNESS WHYTE: Yes. CORK: And so this proposed VMP which you endorse would involve the removal of every tree in MZ1? WITNESS WHYTE: Yes, that's correct. CORK: Could you assist us to understand why the removal of every tree in MZ1 is required to achieve the outcomes that you sought to achieve under the original approved VMP? WITNESS WHYTE: So the reason for the removal of the trees within MZ2 is - is guided by the horticulture, this requirement, to access to those area to undertake the works as prosed in the CC bays. CORK: So-- WITNESS WHYTE: So the plan must be developed - this plan ensures MZ2 as being developed with input from the primary contractor as to the areas that require clearing for construction works on this site. CORK: Is it fair to say that the driver of the proposed VMP is not the preservation of vegetation, but rather the construction of the subdivision works? WITNESS WHYTE: No I don't think that's fair to say at all because there is preservation of vegetation in a place mulch environment and I've maintained that through the joint report and through this - for the management part of it, so if it makes numerous statements with regards to areas outside of the work areas being left with mulch and being allowed to regenerate so whilst there is the room or the vegetation, it does allow for regeneration at the ground levels. And the ground levels include the re-establishment of trees. It doesn't exclude trees from re-establishing at that point. CORK: Why is the removal of every tree required to give the contractor access to the site to carry out works? WITNESS WHYTE: 'Cause in the - 'cause in the statement made by the contractor with regards to prescribed distances around the building - sorry, the building of the rain gardens installation of the sewer, the installation of the swale, it was deemed necessary from themselves that that vegetation would need to be in the works to accommodate those works. CORK: Mr Whyte, I want you to assume three things in the question that I'm about to ask you and I'll try and be clear on the assumption. Number 1, I want you to assume that the rain gardens are not constructed as part of the subdivision works, got that one? WITNESS WHYTE: Yep. CORK: The second assumption, I want you to make is that the evidence given by Ms Hawken a short time ago, did you hear her evidence about the width of the work zones around the perimeters of the site? WITNESS WHYTE: I did, I did. CORK: Okay. So assume that Ms Hawken's identification of the 2 metre wide strip and the 3 metre wide strip around the perimeter of the site on the north, on the west and on the southern side is correct and that the work in those areas is confined at that width so that's the second assumption I want you to make. WITNESS WHYTE: Yes. CORK: Having regard to those assumptions, is it still necessary in your opinion for every tree to be removed from the areas of the site that will not be impacted by the road construction works and the provision of services within the area marked red on the original plan that depicted MZ1, MZ2 and MZ3? WITNESS WHYTE: Okay, so I'll go through each of your points. So mainly assumption of the rain gardens are they're needed, there's - there will still be impacts on the installation of the stormwater and sewer in those areas, but obviously it will be reduced in part. With regards to the statement with Ms Hawken, the 2 metres and 3 metres, I don't think that's - I don't think that's practical at all. In terms of - yeah, there might be a 2 metre or 3 metre physical impact, but to actually do the work, there's going to be a greater impact beyond the physical impact. So you've got to account for your, your edge effects or your, your, your impacts on the edge of that impacts and so - I will state that 2 metres, in my opinion - and this is my opinion - isn't sufficient to allow for access of construction of those swales nor is it sufficient to allow for construction of restoration of the sewer. And then the third part which I kind of got a little bit distracted, I've gone a bit off - went to the two points, what was the third point you mentioned? CORK: I think there were only two assumptions, but I mentioned - I was addressing the area, no rain gardens was the first assumption at the time of the subdivision works. The second assumption was that Ms Hawken's evidence was correct and that the impact zones around the perimeter of the site were 2 metres or 3 metres wide as specified by her and thirdly, that the road construction and utility provision and stormwater I'm adding that in this time, provision, is confined to the area marked red on that original plan 3-1 that on having regard to all of those assumptions, is it still in your opinion necessary for every tree to be removed from the area that you identify as MZ1 in the plan that is attached to the proposed VMP? WITNESS WHYTE: Okay, so we assume MZ1, exhibit 3.1 is the impact area. I would still recommend the removal of the trees surrounding the building footprints and rocks through 18, within the frontage and within the site setback of those lots for the obvious reason I highlighted previously in my notes but just the - the canopy conflicts with the building footprints. There may be an opportunity - and I say "May" like I highly highly doubt it to retain a single tree on a - a few trees between the northern boundary of lots can 16 subject to them being sighted at sufficient gaps from the building footprint. But, you know, as I stated before, you've got to assume mature canopy in that area, so if you are going to keep a tree you've got to be mindful of that - how big it's going to go so there's no future conflicts with those future building paths. But if you reduced the extent of works, it may be possible to keep a tree in that area. It may. But that's not - it's not what's been put to me in terms of what's required for access and what's been put to me is that CC zones are showing rain gardens but need to be constructed and even if you physically get access to those areas to construct those rain gardens." (Tcpt, 25 August 2022, pp 65(8)-70(10))
6. The questioning then turned to Ms Mach: "CORK: No, I think my assumptions that are - the assumptions I asked you to make were clear. I don't think we need to repeat that and I would like now to ask Ms Mach for her response to that question. Ms Mach, making the same assumptions, number 1, no rain gardens are constructed as part of the subdivision works. Number 2, that Ms Hawken's evidence as to the width of the construction zones on the north side, on the west side and on the south side for the drainage and lines and swales is correct, that is 2 metres to 3 metres and that the construction zone and that involves the road construction and service provision is confined to the red area on the plan that is - the diagram, that is 3-1 to the approved VMP, do you consider that it is necessary to remove every tree from the area identified by Mr Whyte is MZ1 in the proposed plan subdivision? WITNESS MACH: No I don't. CORK: Why don't you? WITNESS MACH: Because the site is vegetated-- CORK: Ms Mach, would you mind speaking up just a little bit. With the mask, it makes it difficult to hear. Thank you. WITNESS MACH: Because the number of trees within the lots will make it possible for appropriate - trees that are inappropriate locations to be retained in favour of trees that might not be so appropriately located, however one of the difficulties is that there was never a tree survey or tree retention removal plan with arboricultural information to consider in terms of the tree retention and removal on the site, so it was proposed that those areas were left to be sensitively managed to enable to those decisions to be made at the time or may be - hang on, maybe I'm getting a bit confused here. CORK: Perhaps could we do it this way? WITNESS MACH: Yeah. CORK: I'll do what I attempted to do with Mr Whyte. WITNESS MACH: Okay. CORK: Can I take you to the approved VMP? WITNESS MACH: Yes. CORK: And let's start in 3.1 on page 24 to which I took Mr Whyte. And under the heading, "Vegetation protection measures." And I note at paragraph 1 and I'll take you while we're here conveniently to figure 3-1 on page 26. That paragraph states, "All vegetation identified" et cetera, if you could read that? WITNESS MACH: Sorry, page? CORK: Page 24-- WITNESS MACH: 24-- CORK: --of the approved VMP, under the heading, "Vegetation protection measures"? WITNESS MACH: "All vegetation identified for attention with protective"-- CORK: If you could just read that to yourself. WITNESS MACH: Okay. CORK: And then I take you down to paragraph 4 on that same page, "Building envelope shall be surveyed and identified with a temporary highly visible fence prior to vegetation removal works"? WITNESS MACH: Yes. CORK: And then paragraph 5, "All vegetation nominated for attention is to be under scrubbed using mechanical removal prior to any construction activity or earthworks" and you heard my questions to Mr Whyte and I don't repeat those to you about mechanical removal. And then I take you over the page, to page 25? WITNESS MACH: Yes. CORK: And I take you to paragraph 12 - sorry my - yes, I take you to paragraph 12, "Canopy pruning of trees identified for protection within MZ3"? So it was envisaged the trees would be retained within MZ3 under the approved plan? WITNESS MACH: Yes. CORK: Then I take you over to, as I did Mr Whyte , to page 33 and section 3.7.3, APZ establishment and ongoing management? WITNESS MACH: Yes. CORK: And to the fourth paragraph on that page starting MZ3? WITNESS MACH: Yes. CORK: And the requiring - "Will require selective removal of shrubs." And on the third line, "Shrubs are to be retained at 10% coverage within each lot and are not to be retained directly beneath retained canopy trees." Do you agree that that requirement is imposed to ensure compliance with or to work to compliance with planning for bushfire protection. Is that the reason why that figure appears of 10%? WITNESS MACH: Yes, that is right. CORK: Do you consider that if the method that is outlined here, that is, a construction zone MZ1, building footprint zone cleared mechanical removal of vegetation and a mosaic left around that you would achieve your working to achieving the requirements for an inner protection area to create the asset protection zone? WITNESS MACH: Yes, that's correct. CORK: Okay. In your opinion, is it difficult - would it be difficult in those circumstances to achieve the outcome by hand thinning of vegetation rather than machinal removal? WITNESS MACH: No, I don't believe it would be difficult. CORK: And why don't you believe it wouldn't be difficult? WITNESS MACH: Firstly because - so - yeah, firstly the level of the clearing that would be required. On some sites, would not be a great deal after the building envelopes and MZ1 are mulched because they're existing cleared areas on the sites in places, but on certain lots that have - are dense, vegetation it is, the appropriate contractors would be able to move fairly quickly and practically through the site and selectively clear the weeds species, the invasive species, more flammable shrubs. Woody weed removal is not a slow - is not a slow process, it's quite a - a quick process and there could be the use of brush cutters to slash vegetation in a mosaic pattern. It's not time consuming or difficult work." (Tcpt, 25 August 2022, pp 70(12)-72(39))
7. Although Ms Mach considered that hand thinning would not be difficult, she did not cite any particular example either in the Blue Mountains or elsewhere of where it had been carried out at the scale of the site (see also end of [227]).
8. The issue was further considered: "CORK: Now I have another question I want to ask Ms Mach, Commissioner, about her preference for this method as against clearing the entire site is, Mr Pickles comfortable with that question being asked now or would he rather come in on what we've covered so far? PICKLES: Well you may as well ask it because I want to ask some questions about this. CORK: Good. PICKLES: Thank you. CORK: Ms Mach, could you explain to the Court why you, as an ecologist prefer the selective thinning with MZ3 that we've talked about rather than mulching across the site? WITNESS MACH: Because it is - it, it has the least environmental impact and can be done to avoid unnecessary clearing of vegetation. CORK: No further questions as this stage Commissioner. PICKLES: That may be so Ms Mach, but the planning for bushfire or the standards for asset protection zones released by the New South Wales Rural Fire Service contemplate do they not - determine which methods maybe appropriate to reduce bushfire fuel in an APZ and this is actually referenced in the BSA itself isn't it? WITNESS MACH: The standards for asset protection zones? PICKLES: Yes. WITNESS MACH: Yes. PICKLES: And there are - the first four, you've got raking or manual removal of fine fuels, this is in exhibit 9 Commissioner. You've got raking or manual removal of fine fuels. Mowing or grazing of grass and removal or pruning of trees, shrubs and understorey. Those three things are all contemplated being done essentially by hand and manual methods don't they? WITNESS MACH: Yes, they do. PICKLES: Yes, and they may even be entirely appropriate on an individual or small site. But when we come to the next point that they say is a legitimate method or a legitimate standard for asset protection zones, the bushfire - the Rural Fire Service come to slashing and trittering? WITNESS MACH: Yes. PICKLES: And it says, "Slashing and trittering are economical methods of fuel reduction for large APZ's that have good access"? WITNESS MACH: Yes. PICKLES: Now, most of this site, except for the bits that are marked by Mr Whyte as the proposed MZ2 have good access don't they? WITNESS MACH: Uh-- PICKLES: The site is readily accessible by mechanical equipment of the kind - the Posi-Track that Mr Whyte has nominated? WITNESS MACH: Yes, it is, yeah. PICKLES: Right. And this is a large APZ across this site? WITNESS MACH: Yes, it's a large APZ. PICKLES: So, when the Rural Fire Service say, "It's slashing and trittering are economical methods" you might infer from that perhaps that - the hand methods are probably not terribly economical for a larger APZ? WITNESS MACH: The - there's a combination of the two proposed on the site. PICKLES: There is. WITNESS MACH: The slashing and trittering were applicable to the building envelopes. PICKLES: They were, but - and it's still the case - it is still the case isn't it, that there will be some areas of hand removal but what Mr Whyte's proposed VMP does, is consolidate the area where there will be selective tree removal and work done by hand in the areas that are difficult to access and where move vegetation should be protected. And then utilising a mechanical method in the areas that are readily accessible. Isn't that what's proposed? WITNESS MACH: The - there won't be selective thinning of understorey in the MZ2-- PICKLES: No. WITNESS MACH: --it is proposed that the whole site is mulched. PICKLES: But there's still selective tree removal? WITNESS MACH: There's selective tree removal in the outset, MZ2. PICKLES: All right. But slashing and trittering, is a recognised method fuel reduction as a method of achieving an APZ? WITNESS MACH: It is, yes. PICKLES: And so, really, the answer to this comes down to not what your preference is as an ecologist, but what is feasible and reasonably economical to achieve on a large site isn't it? WITNESS MACH: I don't agree. PICKLES: Well how can you seriously expect this land holder who is wanting to develop this land into 20 and has consent to develop this land in to 21 lots, potentially more than once, maybe several times before any of these lots actually come to the market, you're suggesting that while they go and do these works, that they go and do all this stuff by hand across all 21 lots even though, particularly in the case of lots 10 to 18, they're readily accessible and will have houses on them and lots of other drainage infrastructure? WITNESS MACH: Yes, I am. PICKLES: You're seriously suggesting that? WITNESS MACH: I'm suggesting that it's practical and it's not difficult. PICKLES: Has that ever been done before in the Blue Mountains for a 21 lot subdivision as far as you're aware? WITNESS MACH: I don't know." (Tcpt, 25 August 2022, pp 73(29)-76(3))
9. Ms Mach has been a Council officer for some time and has previously seen a number of developments involving clearing of vegetation. She was able to suggest that hand clearing was practical and not difficult but then did not know whether there had been an example in the Blue Mountains. Mr Pickles asked whether she knew of a 21-lot subdivision, but I would interpret that as asking about subdivisions of that general size (say 18-24) rather than exactly 21. I take her response as being that she did not know of any example of a subdivision of around the same size being hand cleared in the Blue Mountains despite indicating that it would be practical.
10. The treatment of the ground and litter layers was of particular concern to Ms Mach. I will quote the relevant discussion at the hearing extensively because it reveals the issues concerned, but also the lack of preparedness and confusion between the experts. "CORK: Thank you. On the issue of mulching, the regrowth that is identified by Mr Whyte, in his plot 6 and the species identification, do you have any comment about the species that he has identified that have regrown? Are there particular species that might regenerate and others that might not in that period? WITNESS MACH: Well, I - yes, I can see the diversity of species that have regenerated in that time. I would comment that some of those species that have not reached of a mature - have not reached the maturity at which they, they might produce seed. So, I would make the comment that if an area that has previously mulched, were to be mulched for a second time before some of those species have had the opportunity to produce seed to replenish the soil seed bank, a second mulching event may not present the same level of regeneration, that's shown in these photographs. CORK: By a second mulching event, are you taking into consideration the possibility put forward in the draft VMP prepared by Mr Whyte, December 2021, that the site would be mulched if that VMP was implemented across the whole site? WITNESS MACH: That's correct, yes. CORK: Is that your understanding of what is proposed in that VMP? WITNESS MACH: Yes, the proposed VMP would propose to mulch both MZ1 and MZ2, the, the entire site of the - to mulch the shrubs and ground covers across the whole site. CORK: So, in that event, is your concern that there would be no opportunity for certain species which have not reached maturity if they were mulched a second time to regenerate, because they would not reach the stage producing seeds which drop back into the seed bank? WITNESS MACH: Yes, I'm, I'm saying that the, the, the soil seed bank for certain species would be depleted and their regeneration would be diminished of those species. CORK: Ms Mach, this is a general question in relation to mulching, so Mr Pickles may wish to also ask Mr Whyte, could you assist the Court to understand, what is the effect of mulching across a site in the way proposed by the applicant and described by Mr Whyte in his supplementary report? WITNESS MACH: The effects of mulching is that - so, one, it removes the vegetation so the existing habitat values and biodiversity values of that vegetation community are removed. So, that vegetation is currently - provides cover and habitat for wildlife, so we're looking at - we're talking about small reptiles, mammals, amphibians, invertebrates, small birds, all use that habitat for cover and for foraging, and the mulching event would also impact on wildlife in that, so they would either be killed during the mulching event or if they were to survive the mulching event, they would be vulnerable to predation. So, that - yeah, this is just a way of describing the, the biodiversity values that would be lost if the vegetation was completely cleared. CORK: When you say completely cleared, do you mean mulched in the way in which it's proposed in the draft VMP, supplemented by Mr Whyte's supplementary report? WITNESS MACH: Yes, if the vegetation were mulched. The-- CORK: Right. WITNESS MACH: --understorey of vegetation was mulched. CORK: You understand that what is proposed, and correct me if I'm wrong, is that upon the mulching event, the vegetation would be reduced to a height about 100 millimetres above ground level, is that correct? WITNESS MACH: The mulching proposed would remove all ground covers as well. CORK: Right. Are there any other matters that you wish to comment on arising out of the supplementary report that you have in front of you? COMMISSIONER: Could I just ask, given - maybe both of you, given the density of the understorey that's shown in photograph 3, you would presumably need to remove some of - if you mulched all of that, the layer of mulch would be fuel load in itself, wouldn't it? So, it's only part of what's there that would be retained, or would you retain everything? WITNESS MACH: I, I believe the mulch is proposed to be raked, so to, to reduce to a hundred millimetres depth. Does that answer your question? COMMISSIONER: Well, are there another gaps to allow it to be spread out like that or you would have to remove some of it? If all of that vegetation in photograph 3 was the understorey or midstorey mulched, would it amount to more than a hundred millimetres when spread across the whole area? WITNESS MACH: Which photo sorry, are you? COMMISSIONER: Photo 3. WITNESS MACH: Thank you. COMMISSIONER: It shows plot 6. WITNESS MACH: I'm not sure how deep it would - how, how deep the mulch would be. COMMISSIONER: Does Mr Whyte have any idea? WITNESS WHYTE: In regards to photograph 3? COMMISSIONER: Yes. WITNESS WHYTE: Let me just bring it up. Whereas - at presently at this point in time, the mulch layer is still present on the site, obviously because we have canopy trees dropping material continuously into that area. So, I wouldn't, I wouldn't assume that if you were to re-mulch the area that's been mulched that it would achieve a hundred millimetres of coverage. But there's potential that some areas could be in exceedance of a hundred mil. But the methodology purports to me - in the management plan is to retain at least a hundred more metres of coverage, post mulching across the site. But there's a few discrepancies between Planning for Bushfire Protection 2019 and the standard with regards to the depth of that mulch. One document refers to no more than 8 millimetres of coverage of - that's 1 centimetre of coverage of mulch or organic material on the ground layer to satisfy the standard for establishment of asset protection zones. So, yeah, if you're looking at 1 centimetre or 8 millimetres, yes, you would definitely achieve that coverage consistent with the standard, within photograph 3. CORK: Commissioner, sorry, I didn't entirely hear Mr Whyte's answer. Would it be possible for Mr Pickles just to clarify with Mr Whyte or do you have any-- PICKLES: Yes, sure, yes, yes. CORK: Thank you. PICKLES: Mr Whyte, just to be clear, I think you said that Planning for Bushfire Protection has a control that says no more than 100 millimetres, but I think you said something about there was an inconsistency in the documents? WITNESS WHYTE: Yeah-- PICKLES: I didn't-- WITNESS WHYTE: --that's correct. PICKLES: --quite understand where the inconsistency was. WITNESS WHYTE: So, the inconsistency, it was between the reference to ground cover vegetation height being maintained at a hundred millimetres and the standard where it talks to coverage of vegetation being below 8 millimetres in height. PICKLES: Below 8 millimetres? WITNESS WHYTE: Yeah, 8 millimetres. PICKLES: As opposed to 100 millimetres? WITNESS WHYTE: Yeah. So here's a reference to maintaining ground cover at a hundred millimetres. PICKLES: Is in the Planning for Bushfire Protection appendix, is that under the APZ requirements, is that where we find it? WITNESS WHYTE: Yeah. I'll, I'll bring you to it, if you don't mind. PICKLES: I know page 107 in appendix 4, which is 248 of the bundle talks about grass should be kept mown to no more than 100 millimetres in height and then leave some vegetation, debris should be removed? WITNESS WHYTE: Yes. PICKLES: There's a reference to 100 mils there. Where do we find the 8 millimetres? WITNESS WHYTE: I will try and get there right now. Yeah, so in the standard it says "On"-- PICKLES: So, this might be a document the Court doesn't have. Hang on-- WITNESS WHYTE: The Standard for Asset Protection Zones? PICKLES: Standard what? WITNESS WHYTE: The Standard for Asset Protection Zones-- PICKLES: Right, okay. WITNESS WHYTE: --which is called up on - called up under condition 1, with the Bushfire Safety Authority. PICKLES: Yes, I think I've got a copy but I don't think the Commissioner does. I don't know whether Mr - you've got some. Mr Cork's got them, we'll make a copy available to the Commissioner and then you can take us to it, Mr Whyte. Did you have a spare for the Commissioner? CORK: Yes. Do you want me to tender that or do you-- PICKLES: Yes, we can do it afterwards, but which page are you on Mr Whyte? WITNESS WHYTE: Was on page 6. CORK: Commissioner, while Mr Whyte and Mr Pickles and I are finding our places, I will tender this document. PICKLES: Yes. CORK: What's the - sorry Commissioner-- PICKLES: Nine. CORK: Nine. PICKLES: Page 6, you said Mr Whyte? WITNESS WHYTE: Yeah, sorry it's referring to the thickness of the vegetation being six millimetres but-- PICKLES: Where are you on that page? I see, raking or manual removal-- WITNESS WHYTE: It's in the - it's actually - I'm, I'm, I'm sorry to mess the Court around, but it's actually page 107 of Planning for Bushfire Protection, which says, "Litter fuels within the RPA should be kept below 1 centimetre in height and be discontinuous", so that's page 107 of Planning for Bushfire Protection under section A4.1.1. PICKLES: I'm looking for - yes, there it is. I found it, yes. "Vegetation within the IPA should be a kept to a minimum level. Litter fuels within the IPA should be kept below 1 centimetre in height and be discontinuous." WITNESS WHYTE: And when I, when I say there's a discrepancy, I'm referring to the other reference which talks about ground vegetation to be kept below a hundred millimetres in height-- PICKLES: Where it talks about-- WITNESS WHYTE: --which is on - under section 3.2.4 of PBP under "Defendable space". I hope I've got this reference correct, I apologise-- PICKLES: 3.2.4 is defendable space, yes. I don't see a reference to 100 millimetres-- WITNESS WHYTE: No. Can you go back to - sorry, to A4.1.1. PICKLES: Yes. WITNESS WHYTE: "As a guide, grass should be kept no more than a hundred millimetres in height." PICKLES: Yes, that's the grass reference that I read earlier, yes. WITNESS WHYTE: Yes. PICKLES: How does that sit then with this other document which is the standards which then has ways in which you can control fuel on page 6 that talks about raking or manual removal, and then it talks about mowing or grazing of grass and then removal or pruning of trees, shrubs and understorey. It doesn't tell us there about a thickness or a depth of - although slashing and trittering on the following page. WITNESS WHYTE: Yeah, no the reference that's probably relevant to the, the ground coverage is under step 5, ground cover, where it talks about the mechanical reduction methods and should retain cover of at least 75% material-- PICKLES: That's page 9, yes. WITNESS WHYTE: --to prevent erosion. But, yeah, so in summary, 1 centimetre under the IPA requirements or that of an - within an IPA, is the, the height. I know it took a bit of time to get to it but I'm not an expert on this document, I'm doing my best to-- PICKLES: All right. WITNESS WHYTE: --bring you to the relevant parts. PICKLES: So, in that respect then, given what the requirements are under this document, the Planning for Bushfire Protection to grass to be no more than a hundred millimetres and litter fuels be kept below 1 centimetre in height, I'm just wondering what's the point of the debate between you and Ms Mach about mulching and its ability to regrow? I'm not sure where it goes. Why do we need to know if it's going to have to be-- WITNESS WHYTE: I think the debate is-- PICKLES: --maintained as an IPA? WITNESS WHYTE: Yeah, well the debate between ourselves is, I think Ms Mach makes reference to clearing of all vegetation, my opinion is that it's not - it's not clearing in a - in a true sense like scraping, scalping, it's a methodology, which is consistent of that of the guidelines, but it will allow if, if it's done properly will allow regeneration at the ground level, level post mulching, and the reference to the, the supplementary letter or statement I provided was to demonstrate that in a post mulch environment that you will have regeneration-- PICKLES: I understand that-- WITNESS WHYTE: --and I, I-- PICKLES: --Mr Whyte, but my question really then is, if what Planning for Bushfire tells us this that you've got keep this vegetation trimmed to the level-- WITNESS WHYTE: Yeah. PICKLES: --specified in that document, there's no opportunity, is there, for it to regrow to the levels shown in your post mulch photographs, because that exceeds the requirements? WITNESS WHYTE: Not - there will be some species that could stay below that height of a hundred millimetres, but, you know, maintaining that ground vegetation at a hundred mil. There will be some species that will persist like herbs, like small herbs and..(not transcribable)..but, but the largest shrub species with that, that height level of a hundred millimetres and some of the ground colour species, they're not going to, they're not going to be sustainable long term with that maintenance regime-- PICKLES: No, right, so-- WITNESS WHYTE: --for that height. PICKLES: --the proposition that Ms Mach puts that the regrowth, if they are mulched again before they have grown to the level shown in your photographs, or rather even after the level shown in your photographs, some of those species wouldn't be able to reseed or wouldn't have developed in a way that would produce seed, what do you say about that? WITNESS WHYTE: So, the assumption has been made that most of what you're seeing regenerated post mulching is seed bank material. There is no doubt that there is a, a level of seed bank regeneration evident in that plot and even then onsite, but there is also a number of species that are, are - that are revegetating from root material and in particular the, the larger shrub species, they seem to be persisting from root stock not from, from seed bank. And if we had the opportunity to go to the site, I could, I could point to the Court some black wattles, Callicomas which have been mulched and they're now to a height of about 4 metres in height post mulching, and I didn't like - obviously we've had some favourable conditions but they're species that are clearly regenerating from root stock not seed bank and, and that's like - that's typical for these fire communities for certain species of, of shrubs. Some will regenerate from root stock while some will generate from seed bank. COMMISSIONER: But, Mr Whyte, to regenerate from root stock, they've got to have accumulated reserves in the roots to do that, so that with repeated mulching, is there a risk that there's going to be a decline in reserves - in underground for them to draw upon so that they might decline over possibly a reasonably large number of cycles but if the mulching is too frequent, it's not a viable in perpetuity option to keep that species? WITNESS WHYTE: Yes, and I - and I guess that's probably one, one point and your point is very valid. I guess the inclusion of that, an additional step into the management plan would be, you know post mulching the identification of, of shrubs to be retained post mulching so that they not mulched in, into the future. So, I do take the point that the maintenance regime probably hasn't factored in completely or entirely the - what you've just put to me which is the - that reserves being depleted over time. But I, I believe it can be - it can be dealt with quite simply with inclusion of an additional management action which would be simply put post mulching identification of certain species in the areas to be kept or a simple statement that 10% shrubbery is to be maintained post mulching within the asset protection zones. COMMISSIONER: But who do you envisage is going to be responsible for this management, because they're on-- WITNESS WHYTE: Well-- COMMISSIONER: --private lots? WITNESS WHYTE: Yes, I, I agree with you. It's, it's problematic when you're dealing with private land owners, mums and dads that don't know much about native plants, native shrubs, yeah. It's, it's a bit - it's a challenge, even though - look, I'll be honest though, my opinion is that most likely that most of these sites will be turfed and it's probably only through the provision through a landscape plan at, at the DA stage where, where you're really going to get some assurances as to what species, where they're put - what - where they're going to be kept and managed into the future. It's a difficult exercise that - obviously at this point but I believe it could be done through a landscape plan, nominating species for..(not transcribable)..species to be planted. In terms of the personnel that actually undertakes the work, you know, could be qualified horticulturists or bush regenerators, but it is an onerous requirement on a residential property. PICKLES: I'm just wondering, you've directed us Mr Whyte to page 107, I should perhaps put that to Ms Mach. It says in Planning for Bushfire Protection - if you don't have it, I'll just read you this very small bit - it says: "In practical terms the IPA, the inner protection area, is typically the curtilage around the building, consisting of a mown lawn and well maintained gardens." Given that practical outcome Ms Mach, what's the problem with mulching because it's not going to be in the longer term when the houses are built on these sites. It's going to be more - it's going to be more than mulching that goes on. It's going to be managed to a point pretty much of mown lawn and well maintained gardens isn't it? WITNESS MACH: Look, on lot size 1,200 square metres approximately in a C4 zone, there is - there are provisions within the DCP for retention of existing vegetation within the landscape. So, that becomes difficult to do. If the site is mulched, it, it is difficult to request future landholders to retain native vegetation within their landscaping if, if it isn't there. So, in this PBP document, it does not require that, an IPA is completely cleared. It allows for up to 10% shrub cover and, and does, does talk about how if it's managed to be in disconnected islands or clumps. It is acceptable for reducing the spread of fire or the fire threat. PICKLES: So, isn't the best way to achieve that ultimately going to be in the landscape plans that each of the owners that build houses on these lots is required to provide. That's going to be the most certain way of ensuring that shrubs are provided but also they comply with the inner protection area requirements? WITNESS MACH: I don't - I don't think so, no. PICKLES: Well, it's going to be very difficult, isn't it, to - in the construction of a 21 lot subdivision, to pick out for the future owners, the clumps of shrubs that will meet the IPA requirements while having to go about the mechanics of constructing all the infrastructure in the roads and the building pads and the rain gardens. How is a developer going to keep particular shrubs in accordance with the IPA if he doesn't do something akin to what Mr Whyte has recommended which is mulching with a mechanical mulcher? WITNESS MACH: Okay, so to answer that question what was envisaged with the approved VMP was that, that mulching method would be appropriate for the building envelopes and the construction zone area which is MZ1, that it was acceptable to provide an access point into the building envelopes to be mulched, and then once - that also there would be a requirement for removal of weeds and invasive species within those lots and that no works were necessarily required within the broader lot-- PICKLES: Well, yes, but that's the assumption I'm trying to challenge here-- WITNESS MACH: Mm-hmm. PICKLES: --because that assumption is wrong, isn't it? Because the moment these works, the subdivision works are taken up, the requirement is even before the houses are built, there is a requirement to manage each of these lots as an inner protection area? WITNESS MACH: Yes, and there was work proposed within the vegetation to reduce the shrub cover to below 10% and that was through selective thinning of the shrub species to achieve the 10% cover which would have been permissible within the IPA. PICKLES: But I suppose what I'm putting to you is that's not practical, is it, in the context of before each lot comes to - it might be practical for individual owners to selectively go around a section beyond their building envelope to work out which shrubs they might remove to maintain an IPA, but across a 21 lot subdivision, it's not practical, is it, to suggest that the person constructing - that you had no problem with the mulching on the building envelopes. But it wouldn't be practical, would it to suggest to a developer of this 21 lot subdivision that he go around selectively for lots 10 to 18, then picking out shrub cover in between the building envelope and the rain garden and the drainage works to identify particular shrubs for retention in the longer term, is that really viable and practical? WITNESS MACH: Yes, it is. PICKLES: Is it? WITNESS MACH: It doesn't take - it is not difficult - John Whyte mentioned bush regeneration companies that do that kind of work. It is not necessarily a lot of thinning that would be required. Once the other areas are cleared, you would be left with patches of vegetation on the lots that could be further thinned by hand or by brush cutting if necessary to manage a mosaic clearing-- PICKLES: Well, I'm looking at the volume that might be anticipated in something like photo 3 that we've - the Commissioner asked about. I mean just looking at the extent of that shrubbery, it's of enormous volume across the site and the suggestion that you would differentiate between areas of the building envelope where you would happily mulch with a mechanical mulcher and the space between the rear boundary and the rain gardens and the building envelope, you'd go out in amongst that kind of vegetation and pick up shrubbery by hand. Are you seriously suggesting that? WITNESS MACH: The - this report says that the shrub cover in that vegetation there is about 39.1% and if you have to clear - if - so that the lots already have some cleared areas, so they're not completely cleared with vegetation of that density to start with. Once you clear, clear the MZ1 areas to the rear of the lots and on the building envelopes and an access track into the building envelope and even - you may be left with less than half of that 1,200 square metre lot that is covered in vegetation. Of that vegetation, it may have up to that 40% cover. So, the thinning that is then required at that point on some lots, may be negligible, and it is certainly not unreasonable to do. There are companies that do that kind of work quite quickly and what you're left with, with is something that retains the ecological integrity of that vegetation, in accordance with the DCP requirements. PICKLES: All right, the DCP requirements are also anticipated, don't they that each of the land owners will prepare a landscape plan that will meet the objectives of the zone? WITNESS MACH: That's right. PICKLES: And that entails, doesn't it identification of planting of shrubs at 3 metre centres, medium shrubs at 1.5 to 2 metres centres and ground covers and the like and your DCP contains a list of plant species, doesn't it, that are suitable for planting in the E3 and E4 zone? WITNESS MACH: Yes, it does. PICKLES: In the context of a bushfire of an area needed to be managed as an APZ, in fact your species list is quite different to the community that's on this site. Have you had regard to part C4 of the DCP at all? WITNESS MACH: Just bear with me, I'll have a look at the list. PICKLES: I'll give you - I've got a copy of C4 if that's - to hand, if it's of assistance, and the table of vegetation that I'm referring to identifies native species on page 176. WITNESS MACH: Yes. PICKLES: Those native species while indigenous to the Blue Mountains, are not actually indigenous to the community on this site, are they? WITNESS MACH: Yes, the community on the site includes species of the banksia, the Hakea, Lambertia, Petunia, the Petunia genus', there are plenty of Protea species on the site that are on this list. [There are no Petunias on the site - this may be a mistranscription of Persoonia. There are no species of Protea (a South African genus) but a number of species in the family Proteaceae are present.] PICKLES: Right. WITNESS MACH: There's also 30% foliage cover of I think Leptospermum species on the site that would be prioritised for removal to, to prioritise the retention of the Protea species that are on this list in the part C4 - part C4, the DCP. PICKLES: Right, and then doesn't it also contemplate in this part of the DCP that in order to avoid the - in terms of the principles for suitable plant material selection, you need to avoid volatile oils, waxes, resins in leaves, smooth, hard or persistent bark, trees with a low - and you should have trees with a low leaf litter production over summer, you've got to minimise haven't you, on this site those species, because they're the ones at the moment, the species on this site infringe all of those principles, don't they? WITNESS MACH: No, when they talk about volatile oils they - so that's why the accepted VMP proposes the selected thinning of Leptospermums and Kunzea species. PICKLES: But it also anticipates in conjunction with that, that individual owners will plant non-indigenous species as ground covers in between as well, which will ultimately change the floristic characterisation of the areas we're talking about between the building the envelopes and the drain infrastructure will be changed in the future, because that's what your DCP will ask landowners to do? CORK: Commissioner, could I ask Mr Pickles to clarify, was that comment directed to the content of the VMP or the content of the DCP? PICKLES: Content of the DCP. CORK: Right, Ms Mach may not have understood that. WITNESS MACH: So, the, the landscaping objectives are to incorporate retained or existing bushland elements into the landscape, so that doesn't exclude that, that future landholders will want to have a lawn or plants and exotic species, it just does provide for retention of a level of existing native bushland. PICKLES: But the proposition I want to put to you is quite simply that mulching the ground cover in the areas of MZ1 outside the areas of infrastructure and building envelopes is not going to completely remove that vegetation or its characteristics. It will be there, but it will simply be reduced in accordance with the requirements of the standard for bushfire protection? WITNESS MACH: I would say that is removal. PICKLES: Would you? You think it's removal, even though it has potential for regrowth? WITNESS MACH: I, I agree it, it could regenerate, but it is removal. PICKLES: Mr Whyte, in terms of what Ms Mach has just said about the species in the bushfire section of the council's DCP, do you have anything to say about the groups of species which are recommended by the council for planting in APZ areas, relative to what's on the site? WITNESS WHYTE: Well, what, what, what I would say is that some of the species that are identified, would be inconsistence - inconsistent with that in the Planning for Bushfire Protection, which talks about planting non sclerophyllic vegetation and a lot of those species in the first list are sclerophyllic in - by nature. The other thing that I'd like to point out for the Court is that none of the tree species on the site, with the exception of probably the blueberry ash, in the council's list, would be appropriate for retention based on that list. And what I'm trying to say is that the species of eucalypt and the Corymbia and the Angophora species on the site are not identified as species that are appropriate for planting within an asset protection zone, so I might make the point, why is it appropriate to retain them? PICKLES: Do you have a response to that Ms Mach? WITNESS MACH: Only that I'm not, I'm not sure of the, the factors that went into preparing the list in the - are we talking about the list in C4.4 or the-- PICKLES: Yes. WITNESS MACH: --the, the landscaping part of the-- PICKLES: In C4, because we-- WITNESS MACH: Yeah. PICKLES: --are concerned with a site which is affected by bushfire requirements, I think we have to-- WITNESS MACH: Only that this, this section is talking about what people might plant in their garden. So, it may not have focused on canopy species. I can't comment completely on how this was compiled, but it's definitely different to retaining, retaining what's - the retention of elements that are already on the site that would include eucalypts and Corymbias and Angophoras. They may not always be appropriate to plant in the landscape setting, but I'm not sure why they wouldn't be on the list. COMMISSIONER: Could I just ask, you've referred to the community, both of you, that's present, what is the dominant PCT and-- WITNESS WHYTE: Yeah. COMMISSIONER: --what is it under the new numbers? Which is not a one to one-- WITNESS WHYTE: To be, to be frank-- COMMISSIONER: --comparison? WITNESS WHYTE: Because it was - that the previous ecology reports was done under the - under formal consideration to not plant community types, Commissioner, I haven't turned my head to the BioNet Vegetation Consideration(as said) to, to identify to an PCT. On the surface it looks like it's consistent with PCT 10881 but look, it, it's just a guess. I'd have to look at the floristic composition and input that through the, the tool to, to get the, the correct PCT. What I can say is that it's, it's not a threat to vegetation type, it's not a - it's non-scheduled vegetation under the council LEP and DCP, and, and I'm not making - just to make it look less significant but in the hierarchy of council's considerations, it's not a vegetation type where the council has specific LEP considerations or DCP controls in regards to, it's non scheduled vegetation. It's a - it's a silvertop ash/peppermint red bloodwood angophora open forest community in part, particularly in the western portion. The eastern portion of the site is highly modified. It's dominated by pines and..(not transcribable)..predominantly, with the occasional eucalypt. There was a few..(not transcribable)..in that eastern portion that, you know, it's a bit of mishmash, the sites being subject to historical clearing, so what's come back in is, is this mixed - it's a mixed result as a community. So, it's not one particular community, it's probably a mixture of two communities, natural communities and one highly modified community being exotic in nature. COMMISSIONER: Ms Mach? WITNESS MACH: Yes, it is - yeah, look the - most of the community on the site, I believe is under the council's mapping, an unscheduled community, Angophora, eucalyptus piperita, angophora costata, open woodland I believe, but I - I'm sorry, I'm not, I think it's in one of my reports but I can't recall which community types are on there. WITNESS WHYTE: And if it would assist the Commissioner, I've actually provided a vegetation map within the vegetation management plan under the approved document figure 2.1 on page 23, where I've attempted to mark those vegetation if it is on the site. PICKLES: Sorry, Mr Whyte? WITNESS WHYTE: 23, page 23, figure 2.1. PICKLES: Yes, I must say actually I was going to ask you about that. The colour scheme on that is very hard to interpret against the key, but as I detect it, the area to the west, and an area in the centre, that's coloured green, is it? That's intact-- WITNESS WHYTE: That's correct. PICKLES: --open silvertop ash smooth, blood - apple red wood - red bloodwood class 1, and then there's the under scrubbed open forest silvertop ash, is the bit in the middle where Luchetti Avenue ends, is that right? WITNESS WHYTE: Yes, that's correct and that was the area that was subject to past, past under scrubbing works-- PICKLES: All right, and then the regrowth scrub and scattered trees class 2, is the bit in the east and along the northern boundary in the middle of the site? WITNESS WHYTE: Yes, that's correct. PICKLES: And then cleared land - two sections of clear land, south eastern corner where the existing dwelling is and along the north eastern boundary? WITNESS WHYTE: Yes, and the vegetation types were aligned with council's vegetation mapping project for consistency. PICKLES: There's a bit of cleared land with scattered trees in the western corner as well, adjacent to the boundary of those, those other houses. …. PICKLES: Yes. There's a couple of matters, if I can ask both witnesses to clarify in the joint report in exhibit 6. There's some places where it's difficult to understand who's speaking and there's some other parts where I'm not sure there's agreement. On page 2, under the general comments, it says, "We agree that although the final construction footprint is being addressed by other experts, that it is reasonable to expect that vegetation retention areas could be provided on each lot outside of a construction footprint required for subdivision works." Do you agree with that Mr Whyte, is that both of you agreeing with that proposition? WITNESS WHYTE: Now, my, my position is this: whatever the construction footprint ends up being, that should be the basis for the management plan. PICKLES: That should be the basis for the what? The management plan? WITNESS WHYTE: The vegetation management plan. PICKLES: Right. WITNESS WHYTE: So, MZ1, final location would determine the outcomes of the VMP, so you know if the - if the area would reduce, then I would say the VMP would have to be amended accordingly to reflect that." (Tcpt, 25 August 2022, pp 18(33)-33(32))
11. From the exchange, I draw attention to:

• the need under the IPA requirements to manage the litter layer by reducing its extent and depth - provided that there is sufficient litter left to limit potential for soil erosion
• that the RFS requires the litter depth to be in the order of 1 cm, and the 'grass layer' to be 10 cm
• the maintenance of the litter and ground layers may limit regeneration, potential for seed generation and seedling establishment
• the possible difficulties that will be arise for future owners of individual blocks
• uncertainty about the identity of plant community types (PCTs)

1. The joint expert report of the ecologists (Ex 6) includes photographs (by Mr Whyte) illustrating regeneration post mulching (for the shrubs most likely vegetative reproduction). Although there has been considerable regeneration, there can be no certainty that this would occur if mulching was a regular occurrence. Figure 6 Shrubs Lomatia silaifolia numerous groundcovers regenerating post mulching 30-09-2021 (Source: Ex 6 photo 6) Figure 7 Persoonia levis, Acacia terminalis, Hakea dactyloides, Banksia spinulosa shrubs regenerating post mulching 30-09-2021 (Ex 6 photo 8)
2. The RFS standards for management of mulch and litter prescribe a degree of precision that is, in a practical context, unattainable. The expected height of a grass layer of 100 mm is expressed as 'about', giving a degree of flexibility, but possibly would be challenged by the rate of growth in a wet summer. However, a litter layer depth of 1 cm would be difficult to maintain. The land surface, even if described as 'flat' will have minor ridges and depressions, so that a litter layer will have variable depth, perhaps a few centimetres over hollows in the ground, although generally only 1 cm over larger areas.
3. If the trees above the litter layer have canopies (even if they have been reduced) that will move even in very light winds then there will be a rain of twigs and small branches, which will locally increase the depth of the litter layer.
4. Rigid enforcement of the standard would be impossible but even with a more lax approach lot owners may not regularly check the litter layer, and only take action when it was obviously much deeper.
5. The Respondent in submissions at par 99-101 states: "99. Original condition 5 was drawn to impose limits on the removal of vegetation and the removal of trees. The condition imposed a positive obligation on the Applicant to take every practicable measure to ensure that the safe useful life expectancy of trees to be retained was not compromised. 100. In its place, the Applicant first proposed a new condition 5 which simply stated that vegetation shall be cleared in accordance with the 2021 VMP. That condition would have permitted the complete clearing and mulching of understorey vegetation within the site, the removal of all trees within MZ1 (2021 version) and the selective clearing of trees within MZ2. The number of trees that would be retained within MZ2 is not clear. (The Respondent notes that the Applicant has submitted revised wording for proposed amended condition 5). 101. The Court imposed condition 18, requiring the preparation of a VMP. That condition specifies that any VMP must address the matters identified in paragraphs (a)-(i) inclusive. Amongst other matters, paragraph (c) mandated tree retention and required that priority be given to the retention of significant trees, having a diameter greater than 300mm. The Applicant proposes that condition 18 be deleted, with the result that paragraph (c) would also be deleted. In its place, the 2021 VMP (as varied) will be in force and effect." [The Applicant does not propose deletion of Condition 18, rather that it be replaced by a very short version. From the Respondent's perspective, the effect might be perceived as deletion, but there would still be a Condition 18 (see [300]) and I must consider what would be proposed by the Applicant in the modified Condition 18.]

Fauna

1. From the first case (Aesthete 1) to the present, the VMP has been a focus of attention. However, the VMP does not completely ignore other components of biodiversity.
2. In the 2020 VMP, section 3.2.3 dealt with animal welfare. "Animal injury has the potential to occur throughout various construction operations. In the event that any sick, injured or orphaned native animals are located during construction, WIRES should be contacted to assist in capture, handling and welfare of the animal (contact No: 13000 WIRES or 1300 094 737). A suitably qualified ecologist or wildlife handler should be on site during clearing of vegetation associated with the establishment future dwellings & asset protection zones. The qualified Ecologist is to hold a Section 132 licence issued by the Office of Environment & Heritage and a current Animal Ethics licence issued by the Department of Industries & Investment." (p 28)
3. These are general requirements that are applied to many developments - there is no indication that there is a priori knowledge that particular species are present in particular lots.
4. The Kellys, in their objection to the proposed development, drew attention to the presence of a number of nest boxes in the subject land adjacent to the Kellys' property in Luchetti Avenue. There was brief discussion about these nest boxes during the hearing, see [73] above.
5. During the exchange during the hearing no mention was made to section 3.3 of the 2020 VMP. The same text occurs in the 2021 version at Tab 18 of Ex C. "3.3 Nest boxes Five of the six hollow-bearing trees (1-5 fall) within the 'MZ1/MZ2' (Figure 3-2). Prior to the commencement of clearing works the site the clearing protocol in section 3.4 is to be implemented. The following 12 next (sic) boxes 4 glider boxes, 4 microbat boxes and 4 possum style boxes are to be installed within retained trees throughout the subdivision. Nest boxes are to be installed prior to the commencement of clearing works. The dimension of the nest boxes were as per the nest boxes for wildlife 'A practical Guide' (Stacey & Alan Franks 2011) table below: The size of boxes selected provide suitable habitat for a number of species type and will adequately compensate the loss of trees being removed as a result of the proposed development. Figure 8 The table of dimension was taken from Franks, A & Franks, S 2011, Nest boxes for wildlife: A practical guide. Corrected edn. Bloomings Books
6. At the time of the site inspection by the Court, the nest boxes were installed in a limited area of site, but the intent is that they would be relocated to particular individual lots during the subdivision process. It is indicated that 12 boxes of different types be distributed, but how many will go into each of the individual lots, and how it will be determined what types go in what lot is not explained.
7. A requirement for the installation of nest boxes in conditions for development is becoming more frequent, and there are examples where successful colonisation rates have been high, both for birds and mammals.
8. What will be the rationale for making decisions, and how will management of the boxes be monitored? Even if this is a requirement for certain boxes to be installed, individual owners might choose to install more, and perhaps different boxes. Not every lot will have suitable trees, or provide suitable habitat for all species. (The table includes the dimensions for a box for small ducks which in the context of the site might be wood duck - but I doubt that there would be a need to provide a nest box for a duck.)
9. Ms Mach raised concerns that maintaining a much-reduced litter layer could have adverse effects on reptiles. However, neither party has identified measures that could be taken to mitigate the impacts on reptiles given that the site, and subsequently the individual lots, are required to be maintained as an IPA, which necessarily requires maintaining a low fuel load, and thus a low litter load.
10. Protocols for minimising impact on fauna are given in section 3.4.1 of the 2021 VMP: "3.4 Site Clearing Protocol 3.4.1 Fauna investigation of Hollow-bearing Trees All trees within the clearing zone are to be visually inspected from the ground using binoculars prior to the commencement of clearing works. Any trees which were identified as containing a hollows, fissures, nests or dreys are to be flagged using pink tape. Flagging of hollows, fissures, nests or dreys is to be undertaken by the 'Project Ecologist' prior to the commencement of clearing works. A recent site inspection on the 28th of October 2018 has resulted in the identification of five (5) HBT's identified for removal (Figure 3-2). Removal of trees/vegetation within the clearing zone (MZ1) All non HBT are to be inspected for bird nests and possum dreys prior to there (sic) removal within MZ1. All non-HBT are to be removed prior to the removal of HBT's. Non-hollow-bearing trees are to be removed in a westerly direction to ensure fauna do not move towards surrounding residential areas. An excavator is to be used to remove HBT's this involves cutting structural roots, then nudging the tree and waiting for a minute then re-nudging if no fauna are identified. If no fauna are identified then the tree is to be gently pushed over. If fauna species are identified within HBT then the tree is to be gently lowered over using the arm of the excavator. Once the tree is on the ground inspection of hollows using a led lenser is to be undertaken. If the hollow is found to be too deep to inspect or was curved and the HBT is intact and not crushed then the hollow is to be left on the ground overnight prior to being sectioned out and relocated within (MZ2) (Figure 3-1). Natural hollows suitable for habitat restoration works or that could be salvaged to be placed within retained vegetation and were marked with a RH 'Retain Hollow'. Arrows are then to be sprayed onto hollow indicating length of hollow to be removed." (Ex C Tab 18 p 30) Any hollow-bearing trees will be carefully inspected at the removal stage and that some might be salvaged and placed in retained vegetation. Whether or not there are any segments of trees with hollows which might be potential habitat could not be identified prior to the trees being felled so the 2021 VMP could not provide details of where hollow segments might be placed. If there are any such segments the number will be very small, but section 3.4.1 should be amended to provide guidance as to how the decision to relocate should be made.
11. For reptiles, amphibia and small mammals on the litter layer are to be relocated. However, the protocol does not specify when clearing would occur. If it was in winter, many species may not be detected. Would relocation be within the site or could it be to areas outside the subject site?
12. The VMP, in whatever form, will be included in the conditions of consent. I require the VMP to include details of pre-clearing inspections for fauna (including specification of the season for inspection) and protocols for determining what, if any, species of reptile and amphibia, will be relocated, and management of habitat (including the vegetation) of any areas to which relocation occurs.
13. Although relocation may be desirable in some circumstances, it should not be carried out if relocation to elsewhere on the site, if that would result in parts of the site having populations of particular species at densities above carrying capacity. The VMP is to discuss the issue including determining whether permission could be sought and obtained for translocation to other sites, and, if translocation is not possible, determine what should happen to 'surplus' animals. While none of the species likely to be concerned are currently listed as threatened, they are still components of biodiversity and are also listed on Sch 5 of the BC Act as protected animals.
14. The raingardens are identified as potential habitat for amphibia - both tadpoles and adults, and this is likely to be the case - a further advantage of requiring the raingardens to be constructed by the Applicant would be that amphibian habitat will be available from the initial subdivision, and appropriate planting could be made. Whether the plantings could be tailored for tadpoles of individual frog species is something that is to be considered in the VMP.
15. The 2021 VMP includes a section, 3.13.1, on monitoring and auditing. This includes a requirement to establish a baseline database through establishing photopoints and quadrats, which would also be used to monitor the outcome of implementation of the VMP. The section refers to "monitor the success of the VMP works" but this presumes success - which cannot be guaranteed.
16. There is also a requirement to set up these quadrat plots as shown in the figure below. Figure 9 Location of monitoring quadrats and photo monitoring points (Source Fig 3-4 Sheet No. SK004)
17. There are requirements for 6-monthly reports for up to two years or until each allotment has been sold. There is also to be an annual report 'which will highlight the effectiveness of the program and identify any changes needed to improve'.
18. If changes are 'needed' the 2021 VMP does not indicate who would approve and implement changes. The 2021 VMP should be amended to establish an adaptive management regime. This need not be bureaucratically complex - but must establish who decides that a change is required, and determine how the change is to be carried out. Depending on the change to be required, there may need to be an extension of the period in which monitoring occurs.

Discussion

1. I am of the opinion that there is no jurisdictional bar to approving the modification application as the outcome will still be substantially the same development. What remains to be determined are the conditions.
2. The Respondent's proposed draft conditions of consent, prepared on a 'without prejudice' basis, were responded to by the Applicant. The conditions proposed are largely those approved by the Court in Aesthete 1 and Aesthete 2, but with changes to respond to the modification application before the Court at the end of the hearing.
3. The conditions imposed in Aesthete 1 reflected the then applicable LEP - LEP 1991. The current matter is to be assessed under the provisions of LEP 2015. While the wording of the LEPs has changed, the objectives and intent of the two LEPs remain very similar.
4. The major differences between the parties relate to Condition 18, directly or indirectly, regarding whether the drainage works in what will become the 21 individual lots should be constructed by the Applicant or by the future owners of individual lots.
5. The Applicant considers that, on grounds of practicality and efficiency, the works on the integrated drainage system should be constructed by the Applicant prior to the issue of the subdivision certificate as summarised at par 17 in the Applicant's submissions.
6. Importantly, the development consent sought by the Applicant will have a limited life. Once the subdivision certificate has been issued the consent ceases to require any practical works the Respondent requires that the Applicant would be responsible for monitoring for three years after the subdivision works have been completed although the VMP specifies two years of monitoring. The owners of the individual lots will not be carrying out any work under the consent, but will be required to obtain separate approval for the construction of a dwelling. Although the dwelling is required to be within the development outline, which is within the larger lot, conditions will be imposed applying to the management of the whole of the lot.
7. An important aspect of the subdivision stage will be the consequences of being required to manage the whole area as an IPA. This will have implications for the ground and litter layers as well as the shrub and tree layers.
8. The need for canopy reduction to meet the RFS requirements limits the number of trees that can be retained across the whole site. Mr Whyte, influenced by the views of Mr Compton, considers that very few trees can survive, but that reflects Mr Compton's perceived needs for access.
9. There has been no assessment by an arborist and/or ecologist that has examined in detail which trees could be retained while still satisfying the RFS requirements for management of IPAs. As the Respondent has emphasised there is no mapped inventory of trees across the subject site which accurately shows the position of every tree and its species identity.
10. I require that the VMP be modified to identify the trees that can be retained while still satisfying the Bush Fire Safety Authority requirements. This will require further field work by Mr Whyte and/or a qualified arborist (with at least AQF Level 5 qualification). The VMP is also to include details of fauna management requirements (as specified in [253] above).
11. The Applicant's proposed wording of Condition 19 (Weed Control Strategy) requires invasive plants species to be carried out in accordance with the VMP, subject to section 3.8.1 of the VMP being amended so that 'Primary weeding is to be carried out over the entire area of the VMP prior to works commencing and prior to mulching'.
12. The clearing and mulching will provide conditions which may stimulate regeneration of weeds and/or provide conditions for invasion by propagules of existing and new weeds.
13. The Respondent proposes that the approved VMP be referred to in a positive covenant in favour of Council pursuant to s 88E of the Conveyancing Act 1919 which will be required under Condition 83. Within the residential lots, APZs are to be implemented in accordance with the approved VMP, until development consent for the construction of a dwelling has been granted. Following the granting of a development consent to an individual landowner, landscaping and vegetation management would be conducted in accordance with the consent conditions imposed on development within the single lot.
14. The Applicant agreed that the covenants proposed in Condition 83 'to the extent they are imposed would be the only legal means of binding future owners to any part of the consent conditions'.
15. The Applicant does not consider it appropriate for future landholders to be bound by the VMP which applies to subdivision works as they cannot carry out any works under that consent.
16. What conditions are imposed on individual owners would nevertheless be appropriately subject to a s88E covenant and be binding on subsequent owners. It is likely that elements of the vegetation management requirements will reflect the need to maintain the IPA and would reflect the covenant imposed on the subdivision works, but could be modified to include other relevant changes necessitated by changed circumstances.

Conditions of consent

1. The parties have each provided draft version of conditions of consent and a table in which they provide reasons for favouring one version over the other.
2. The outstanding differences between the differences are as follows:

Condition 1 "Confirmation of relevant plans and documents"

1. Condition 1 relates to the table of plans and documents. The Applicant seeks to include the VMP prepared by Mr Whyte in December 2021; the Respondent wishes to retain the 2021 VMP which Council approved on 18 March 2020. I have determined that the VMP needs to be amended as required above. The revised 2021 VMP is to be submitted to the Court for approval.
2. If the version of the VMP referred to above is approved, Condition 18 is deleted.
3. I consider that the more recent plan for the drainage swale and raingardens is to be included, but that further changes to the VMP are required in relation to determining which trees should be retained.

Condition 5 "Limits of vegetation removal"

1. The Respondent seeks to add an additional sentence to the first paragraph: "Limited removal of trees and other vegetation is permitted by the consent."
2. A correct statement, as is clear from the rest of the condition. The Applicant does not incorporate the sentence in its version of the condition, but the VMP will establish what areas may be cleared, and what trees are retained, so the Respondent's inclusion is not added to the condition.

Condition 5(a)

1. In Condition 5(a) the Respondent seeks to limit the conditions to the 'footprint of the approved subdivision construction works', from which it would exclude work on the drainage swale and raingardens.
2. The Applicant seeks to amend (a) to within the approved subdivision works and drainage infrastructure works which would include the drainage swales and raingardens.
3. I have already indicated (at [200]) that I prefer the Applicant's position regarding the swale and raingardens.

Proposed Condition 5(d)

1. The Applicant also wishes to add a new (d) 'within the approved building envelopes'.
2. The building envelopes are within the IPA so that the Bush Fire Safety Authority would already require substantial reduction in vegetation.
3. However, in case there was any scope for ambiguity I would include the Applicant's proposed (d).

Condition 6 "Submission of Amended Civil and Drainage Plans"

Condition 6(a)

1. In Condition 6, the Respondent wishes to amend (a). "a) The plans shall be generally in accordance with the approved plans, the approved Vegetation Management Plan referred to in condition 18, and the other conditions of this consent. The following works must not be completed prior to the issue of the Subdivision Certificate and are to be deleted from the plans: i. earthworks outside the construction zone footprint; ii. individual stormwater connections from each lot to the street gutter; and iii. lot-scale raingardens. The works referred to in i., ii. and iii., above are to be carried out by the owners of the new lots to be created by the subdivision and are to be the subject of a development application seeking a grant of consent for the construction of a dwelling house on the lot concerned."
2. I have already indicated that the Applicant's inclusion of the swale and raingardens is to be preferred (see [200]).

Condition 6(b)

1. In Condition 6 (b) in the Respondent's version, the vii should be corrected to v.

Condition 10 "Construction Management Plan"

1. I had raised with the parties the wording of the preamble, and the Applicant had agreed with my interpretation of what was the intended outcome. The Respondent raised a broader issue: "The Respondent notes that a Subdivision Works Certificate has been issued for the works originally contemplated under the development consent granted by the Court, prior to the modification of that consent. The parties must determine whether the existing certificate may lawfully be amended or whether a new certificate, for the works now proposed, must be issued."
2. In the question I had raised with the parties regarding this condition I sought clarification as to how the condition should be read. The Applicant agreed with my suggestion - that the wording should be 'for the amended plans'. I had assumed that a new certificate would be issued, and the matters raised by the Respondent were not in my mind when I sought clarification.
3. If a new certificate were to be issued, rather than the existing certificate be amended, would that be lawful, even if it were not essential?
4. The parties are requested to make either an agreed or competing submission on the resolution of this condition - would the rewording I originally suggested, and agreed to by the Applicant, be lawful, or is the condition to be worded so as to require a new subdivision works certificate be issued?

Condition 10(c)

1. I had suggested to the parties during the hearing that a detailed plan would be preferable to the sketch plan prepared by the joint experts in addition to the areas included in the sketch plan. I direct that a detailed plan be provided and it be included in Condition 1.
2. However, I do not accept that the civil contractor should be accepted as providing the last word on the extent of clearing of vegetation and I require that the trees which will need to be cleared to meet the IPA requirements should be determined following examination by Mr Whyte and an arborist and the incorporation of findings in the VMP (see [269] above).
3. The VMP is to be submitted to the Court for approval and the VMP be incorporated in Condition 1.

Condition 10(g), (h) and (i)

1. Condition 10(g), (h) and (i) should be amended to reflect the agreement between the parties.

Condition 18 "Vegetation Management Plan - Preparation"

1. The fundamental difference between the parties is shown in the competing versions of Condition 18. Applicant's Condition 18 "Vegetation removal shall be carried out in accordance with the Vegetation Management Plan prepared by John Whyte dated December 2021 as identified in Condition 1, however with amendment to the requirements for weed management as specified in Condition 19." Respondent's Condition 18 "The development shall be carried out in accordance with this consent and with the Vegetation Management Plan prepared for the site and approved by the Council on 18 March 2020 (VMP), which is to be amended pursuant to this consent and, following those amendments, is to be submitted to and approved by the Council. The VMP has been prepared for the site in accordance with Council's Guidelines and submitted to and approved by Council. The VMP shall be amended in accordance with this condition 18 prior to the amendment of the Subdivision Works Certificate. The VMP was prepared by persons with professional qualifications and/or demonstrated knowledge and experience in bushland rehabilitation practices. The VMP was prepared to demonstrate compliance with Residential - Bushland conservation zone objectives in LEP 1991.Management strategies outlined within the VMP are to address the protection of bushland values while implementing the approved development and its asset protection zones, and specify landscape restoration requirements. The VMP addresses and must continue to address: a) protection of native vegetation located beyond the footprint of approved works; b) establishment and maintenance of the required bushfire asset protection zones in an environmentally sensitive manner* (see condition titled "Vegetation management within asset protection zones"); c) tree retention within the asset protection zones: significant trees with a diameter greater than 300mm are to be prioritised for retention, in conjunction with a mix of smaller trees to achieve/retain the 15% tree canopy cover within the Inner Protection Area (IPA). Trees to be retained are to be identified on site with a weather proof label and shown on a plan (as part of the VMP) with their survey location and details of size, health, habitat value, and SULE rating. d) provision of native vegetation retention for screening along street frontages and lot boundaries; e) provision of street trees and appropriate ground cover within the new road reserve. Plantings are to be advanced or super- advanced stock comprising local indigenous tree species such as Corymbia gummifera, Angohpora costata, Eucalyptus piperita, and Eucalyptus sieberi), at minimum 25m spacings. f) vegetation rehabilitation of degraded or disturbed surfaces, including areas impacted by earthworks and erosion and sediment controls; g) vegetative components of stormwater conveyance, water quality treatment, infiltration devices and outlets. h) control of invasive plant species within the site as identified under the provisions of the Biosecurity Act 2015 and the Blue Mountains DCP 2015 Part 2.3 (see condition titled: "Weed Control Strategy"). i) the manner in which trees within the Inner Protection Area are proposed to be removed to prevent significant damage to the root zones of trees that will be retained within that Area. The VMP includes a written report with an annotated site plan / aerial photograph and shows the entire property including all development and environmental features covered by these conditions. The VMP includes objectives, identifies management zones, defines and describes tasks and provides a timeframe for task implementation, performance targets, on-going monitoring and maintenance of the above works. Note: Council Guidelines for the preparation of VMPs are available at: http://www.bmcc.nsw.gov.au/development-controls-for-land-under-lep-2015/guides. The VMP provides clear specifications and supporting illustrations regarding trees and other vegetation to be retained/removed, the existing and proposed structure, density and percentage cover of vegetation for all stratum (groundcover, shrub and canopy) within the required APZ inner and outer protection areas with reference to current NSW Rural Fire Service standards, guidelines and conditions relating to the provision of APZ's. The relevant diagrams and figures within the VMP are to be amended and updated to reflect the modified subdivision works approved under this consent, including: i. any minor changes to the construction works footprint for area MZI, as depicted in sketch entitled "Agreed Construction Zone Footprint" superimposed on J Wyndham Prince Drawing CC010; ii. the installation of fence netting (such as the fence netting supplied by Seton Australia) or the installation of high visibility bunting (both as referred to in condition 31 of this consent) in the locations identified in Section 3 paragraph 8 of the joint expert report of Bronya Mach and John Whyte dated 18 August 2022 (Joint Report); and iii. the installation of steel fencing in accordance with AS4970-2009, as specified in Section 3 paragraph 9 of the Joint Report and in condition 31 (third bullet point paragraph) of this consent."
2. The Respondent points out that Condition 18 has applied to the development since the development consent was granted in 2017 (Aesthete 1). In 2019, the parties reached a s34 agreement which included agreed conditions (Aesthete 2).
3. The Respondent, in the table of responses submitted that the RFS 'does not require that only a small number of woody specimens can be retained within the site'. I have indicated that the requirements may allow more trees than the Applicant now proposes to retain and the Applicant's position results from its response to Mr Compton's report which was driven by his views on access requirements rather than the RFS standards for an IPA.
4. However, the Respondent's position does not, in my opinion, reflect the RFS requirements for management of the ground and litter layers which will have effects on the long-term sustainability of not only those layers, but the shrub layer, and over a longer term, the canopy.
5. I have determined that the subdivision works include work on the drainage swale and raingardens. The subdivision works will be completed in a relatively short time, after which individual lots will be sold and responsibility for the lots will transfer to the new owners, although the Applicant will still have responsibility for the unsold parts of the site until they are sold.
6. I require that the VMP be revised to make the changes as discussed above, and the revised VMP be submitted to the Court for approval, so that Condition 18 can be deleted.

Condition 19 "Weed control strategy"

1. The Applicant proposes to carry out primary weeding across the whole site prior to the work commencing.
2. Regeneration of weed species in situ, and invasion by propagules from areas external to the site will commence almost as soon as the initial weeding has been completed. Invasion may include propagules of species not currently recorded from the site, additional species may be declared to be weeds and techniques for managing weeds continue to evolve.
3. Given that the Applicant will continue to have responsibility for areas which it owns, there should be capacity for incremental amendment of the weed management strategy to reflect changing circumstances and I have required in [256] that provision for adaptive management should be included in the VMP.

Condition 20 "Vegetation management within asset protection zones"

Condition 20(a)

1. The Respondent proposes to add "complete removal of vegetation within the asset protection zone (APZ) is not permitted".
2. Given the requirements of Condition 20(a)-(i), these additional words are unnecessary and should not be included.

Condition 20(b)

1. In view of the standards for IPAs imposed by the RFS, and the more detailed provisions in other parts of Condition 20, Condition 20(b) is not to be included.

Condition 20I

1. This is to be amended to include the words suggested by the Respondent.

Condition 20(d)

1. It is possible to relate growth form with age in some species but not all. Even some ground layer herbs may be very long lived, and ground layer prostrate shrubs may also have long lifetimes.
2. There may be areas within the site where not all the strata are present. Although the intent is appropriate, it will, to the extent possible, be met by other parts of Condition 20. Condition 20(d) should not be included.

Condition 20A "Provision of Street Trees"

1. The Respondent proposes that if I approve the 2021 VMP that water gums not be included in street plantings. No explanation is provided for not including water gums. Water gums, in my opinion, could be planted but that would not be essential.
2. I have determined that a revised 2021 VMP should be submitted to the Court for approval. The wording of the revised 2021 VMP in relation to the street tree planting should be determined by Mr Whyte following consultation with, and advice from, an arborist.

Condition 31 "Exclusion zone and Tree Protection Zones"

1. The Respondent has suggested a number of amendments to wording and these should be adopted. The remaining point of difference is whether fencing barriers should be required, or whether high visibility bunting is appropriate.
2. I consider that the VMP should contain reference to high visibility bunting and also contain a requirement that work should not occur internal to the bunting. This, coupled with regular inspection to ensure the integrity of the bunting will meet the desired objective.
3. The site is relatively small, and the number of workers present, at any one time, is likely to be relatively few, so that, provided workers are instructed not to cross the bunting boundaries, the condition will provide appropriate protection. The VMP should contain the necessary wording.
4. In the table of responses to the alternative conditions, there is agreement regarding the need for a number of changes and/or additions to the conditions. These should be incorporated in the final version of the conditions.

Condition 80 "Lots adjacent to overflow channel"

1. The parties have different levels in (a) and (b). The Applicant proposes lower levels than does the Respondent. However, these levels do not relate to any required for subdivision works but will apply to the levels of any future dwellings. The condition requires a s88B instrument under the Conveyancing Act to be registered on the title for all the lots that contain or have the potential to be impacted by water flowing from stormwater drainage channels.
2. The Respondent explained that the levels included in the conditions were those agreed between the engineering experts in the joint expert report.
3. The Applicant offered no explanation for wishing to set lower levels.
4. Noting that the condition will only come into play when individual owners lodge development applications for construction of dwellings, I consider that the Respondent's version of Condition 80 should be adopted.

Condition 83 "Section 88B or 88E - Positive covenant"

1. I accept the position adopted by the Applicant, discussed above at [267], but note that both parties agree that the terms of the s88 positive covenant 'not be limited to' - so that some refining of the wording may be appropriate when the wording of the VMP is determined.

Other changes to conditions

1. The table of responses includes agreement between the parties on a number of matters - those agreements should be incorporated where relevant in the modified conditions, along with any changes agreed during the hearing. The parties are directed to address the matters identified in this judgment and those referred to above including that raised in [295] regarding Condition 10.
2. There are a number of other changes which I direct be included in the VMP.

Section 3.2

1. Dot point 4 - the last sentence refers to inspection, but a requirement for inspection is not raised earlier in the paragraph. Wording along the lines of: "All vehicles and other equipment to be used in weed works are to be inspected prior to entering the site to ensure that they are completely free of soil, seeds, and plant material, to minimise the risk of introduction of exotic or weedy plant species and pathogens. Equipment failing inspection must be sent away for cleaning." should be included. [I suggest that known weeds should be mentioned as well as exotics, as while exotic would be interpreted as referring to introduced non-native species, there are some native species which can be serious weeds such as Cootamundra wattle.]
2. Where will inspections take place? Is there a suitable location either near the site or if it is in the site, be right on the edge, with any drainage directed away from the subject site?
3. Who will carry out inspections? There needs to be a more than cursory look. Will the person be required to undergo training before starting inspections?

Section 3.2.2 extends controls to construction vehicles

1. Will there be a routine requirement for workers to step through a disinfectant bath before entering the site? Dot point 2 in 3.2.2 partly covers the point, but not fully.
2. Second sentence should be more than a hope, and should be worded as mandatory. "The following simple procedures to reduce the chance of transferring diseases should be applied at all times:"
3. Globally new plant diseases are becoming problems very rapidly - so wording should be: "Transfer of plant diseases including but not restricted to Phytophthora or Myrtle Rust."

Section 3.8.2

1. Rather than "it is recommended", the sentence should read: "Secondary weeding should be conducted every two weeks (weather permitting)…".

The public interest

1. The consent authority in evaluating a proposal is required to consider, under s 4.15(1)(e) of the EPA Act, 'the public interest'. This includes upholding the objectives of legislation (Carstens v Pittwater Council (1999) 111 LGERA 1, per Lloyd J). This requires giving appropriate weight to the objects of zones within local planning instruments. McLellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 (BGP) said, at [118]-[119]: "118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project."
2. That the zoning of an area permits a particular category of development does not mean that consent for an example of that category of development will automatically be forthcoming (BGP at [118]).
3. An application will be considered in the light of its environmental impacts and other provisions in legislation and planning instruments, and that could result in either refusal (in whole or part) or being approved but with conditions. In the present case the conditions applied reflect both the aims of the C4 zone to promote (in broad terms) protection of biodiversity and the need for protection of life and property required by the RFS.
4. The initial approval in 2017 (Aesthete 1) and the modification application in 2019 (Aesthete 2) considered the requirements for assessment under the EPA Act. In Aesthete 2, the brief formulaic discussion, typical of s34 judgments at that time, provides little information about the matters considered. As I discussed (at [120]-[156] above) there are inherent conflicts between protecting the bushland character of the site and applying the management regime required in an IPA. Public interest consideration would give priority to protection of life and property, although the VMP aims to secure to the maximum possible, subject to implementing the RFS requirements, protection of biodiversity.
5. The Applicant's SEE, prepared by Vince Hardy (at Tab 17 of Ex C) had a minimal discussion of public interest. "6.6 THE PUBLIC INTEREST The modified development proposal does not generate any development outcomes that would be considered to be not in the public interest."

Orders

1. The Court orders: 1. The parties are directed to address the matters raised in this judgment and provide to the Court an agreed set of modified conditions that will form Annexure A, and a consolidated set of conditions that will form Annexure B in Word format on or before close of business on 15 December 2023. An electronic copy of any relevant documents referred and attached to the consent is to be provided to the Court on or before close of business on 15 December 2023. 2. The Applicant is directed to submit a revised version of the Vegetation Management Plan (VMP), and to provide an electronic copy of the same, to the Court before close of business on 15 December 2023. 3. The parties are directed to provide by 15 December 2023 either an agreed submission or competing submissions on the resolution of Condition 10 (refer to [295] of the judgment). 4. Liberty to reapply if Order (1) is not met. …………….. P Adam Acting Commissioner of the Court

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: 24 November 2023