Aesthete No. 9 Pty Limited v Blue Mountains City Council

Following Aesthete 1

1. Subsequent to 15 December 2023, there were a number of directions hearings during which the Applicant proposed deletion of conditions 75(d), 79(d) and 83. These deletions were not part of the original modification application. The proposal to modify the conditions gave rise to a question of how amendment of a modification application which had not yet been made could occur. The Applicant filed a Notice of Motion to reopen the proceedings and amend the modification application on 14 March 2024. I heard the Notice of Motion, modified from that of March 14, on 28 March 2024, with judgment given in Aesthete 2 on 26 April 2024.
2. The process for applying to make an amendment to a modification application which has not yet been made is provided by s 113 of the Environmental Planning and Assessment Regulation 2021. For such an application to come before the Court, it is necessary for an application to be made by the Applicant to the consent authority, and, while on appeal, the Court exercises functions of the consent authority it is not of itself a consent authority.
3. In Aesthete 2, I ordered that: "(1) The Applicant is directed to apply to the Respondent under s 113(1) of the Environmental Planning and Assessment Regulation 2021 (2021 EPA Regulation) to amend the modification application made on 21 December 2021 by 1 May 2024. (2) The Respondent is to approve or reject the application to amend the modification application under s 113(4) of the 2021 EPA Regulation by 6 May 2024." (at [52])
4. The application required by order 1 was expected to be a short document, and the preparation of the response required by order 2 was not anticipated to be time consuming. "[46] The Applicant must therefore make an application to the Council as the relevant consent authority in this case, as required by s 113(1). The application to amend the modification application need not be a long document, and Council should be able to complete its assessment and determination of the application to amend in a short time. The Council, through Mr Cork, has already indicated it is agreeable to the Applicant amending the modification application as foreshadowed. [47] If the Council agrees to the amendment of the modification application as sought by the Applicant, the modification application will thereby be amended and become the modification application before the Court. The need for the Court to exercise s 39(2) of the LEC Act would not arise. The Court only needs to exercise the power of the Council under s 113(4) to approve the amendment of the modification application, using 39(2) of the LEC Act, if the Council does not agree to the amendment of the modification application." (Aesthete 2 at [46]-[47])

The planning framework

1. In evaluating a development application (or in the present case a modification application) the consent authority (or the Court exercising some of the roles of the consent authority) must apply s 4.15(1) of the Environmental Planning and Assessment Act 1979 (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. and take into consideration those matters which are of relevance in the circumstances of the case, in particular, but not limited to s 4.15(1)(a), (c) and (e).
2. The local environmental plan which applies is the Blue Mountains Local Environmental Plan 2015 (BMLEP), the aims of which are: 1.2 Aims of Plan (1) This Plan aims to make local environmental planning provisions for land in the Blue Mountains in accordance with the relevant standard environmental planning instrument under section 3.20 of the Act. (2) The particular aims of this Plan are as follows - (aa) to protect and promote the use and development of land for arts and cultural activity, including music and other performance arts, (a) to maintain the unique identity and values of the "City within a World Heritage National Park", (b) to provide a clear framework for the development of land that is consistent with, and promotes the principles and practices of, ecologically sustainable development, (c) to meet the needs of residents, visitors and the business community through the provision of an appropriate balance of land uses and built forms, (d) to ensure that development does not result in adverse impacts on the values of the Greater Blue Mountains World Heritage Area, (e) to conserve and enhance, for current and future generations, the ecological integrity, environmental heritage and environmental significance of the Blue Mountains, (f) to identify and conserve the distinct Aboriginal and European cultural heritage of the built forms and landscapes of the Blue Mountains, (g) to preserve and enhance watercourses, groundwater, riparian habitats, wetlands and water quality within the Blue Mountains, the Hawkesbury-Nepean River catchment and Sydney's drinking water catchments, (h) to prescribe limits to urban development having regard to the potential impacts of development on the natural environment and the provision, capacity and management of infrastructure, (i) to limit exposure to bush fire hazards and to ensure that development of bush fire prone land incorporates effective measures that protect human life, property and highly valued environmental and other assets from bush fire, without unacceptable environmental impacts, (j) to identify and retain the diverse built and landscape elements that contribute to the character and image of the Blue Mountains, (k) to promote the provision of accessible, diverse and affordable housing options to cater for the changing housing needs of the community, (l) to ensure that the social needs of existing and future residents are met through the provision of appropriate community facilities, open space and services, (m) to provide sustainable employment opportunities and strengthen the local economic base by encouraging a range of enterprises, including tourism, which respond to lifestyle choices, emerging markets and changes in technology, while protecting local amenity, character and environmental values, (n) to conserve the rural and natural landscape of Megalong Valley, the Mounts, Sun Valley and Shipley Plateau and maintain agricultural capability, (o) to ensure that the siting and design of new buildings, facilities and structures intended primarily for public use make reasonable provision for safe and comfortable access to those buildings, facilities and structures for all people, including older people, people with a disability and those with limited mobility, (p) to integrate development with transport systems and promote safe and sustainable access opportunities, including public transport initiatives, walking and cycling.
3. The aims of the BMLEP are broader, and define more particularised aims, than is the case with most other LEPs in the State. The aims stress the importance of protecting environmental values.
4. Implementation of the BMLEP is aided by the Blue Mountains Development Control Plan 2015 (DCP). Part C4.4 of the DCP deals with management of Asset Protection Zones (APZs). A DCP is not an environmental planning instrument (unlike a LEP) but is nevertheless a matter which a consent authority is required to 'take into consideration' in determining development applications (Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167). Since 2001, there have been a number of revisions of the EPA Act which have perhaps lowered the weight given to DCPs in determinations but the DCP remains a matter of importance which must be considered. The DCP was barely mentioned during this matter, but nevertheless was mentioned in the 2021 version of the VMP, but the reference was removed from the 2024 versions. The revisions to the VMP required by this judgment are to include acknowledgement that the DCP applies where appropriate and identify any parts of the VMP where there is non-compliance with the DCP.
5. Blue Mountains City Council published in February 2016 a document entitled 'Vegetation Management Plan Guide' (the Guidelines). The Guidelines were referred to in the 2021 version of the VMP but not in the 2024 versions. None of the 2021 version of the VMP or either of the 2024 versions filed to date have been approved and thus do not form part of the current conditions. There may be different ways that the information required by the Council could be presented so that strict adherence to the Guidelines in relation to format and presentation of information is unnecessary. However, given that the Guidelines were referenced in the 2021 version of the VMP, the Guidelines should be cited - future users of the VMP may wish to locate background information. The revised VMP is to include citation of the Guidelines.
6. Section 4.15(1)(e) of the EPA Act requires that the consent authority take into account the public interest. The interpretation of 'public interest' has evolved over time and will continue to do so. The environmentally-focused aims of cl 1.2 of the BMLEP serve to identify issues which, through the process of preparing the LEP, reflect matters of concern to the local population, which is one measure of public interest.
7. The consent authority must also consider jurisdictional issues, of which the requirements of s 4.55 apply to modification applications: (1A) Modifications involving minimal environmental impact 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 - … (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)…
8. There is no disagreement between the parties that the development, if modified, will still be substantially the same as the development to which consent was originally granted in 2017 and modified in 2019, so there is no jurisdictional issue preventing a determination being made.

After Aesthete 2

1. Subsequent to Aesthete 2 being handed down the parties made submissions, and these submissions are discussed below.

Deletion of conditions

1. Mr Amirbeaggi, solicitor for the Applicant, advised Mr Cork, solicitor for the Respondent, and LEC Commissioner Support by email on 10 May 2024 that: "The Applicant accepts the proposed condition 83 as attached to Mr. Cork's communication below, and thanks Mr. Cork / the Respondent for preparing it."
2. Given the agreement between the parties, no hearing on conditions 75(d), 79(d) and 83 is required and the modified wording of the conditions becomes part of the amended modification application.
3. Although the parties have agreed on the wording of Condition 83, in view of the fact that the Applicant had originally sought that the condition be deleted, it is appropriate to discuss the role Condition 83 (as amended) will play, as was explained by Mr Cork in his submissions of 10 May 2024.
4. Once a subdivision certificate is issued, so allowing registration of the subdivision plan by NSW Land Registry Services (LRS), the subdivision development consent no longer has work to do. Condition 83 is designed to address circumstances that will arise after the deposited plan is registered (Mr Cork's submissions of 10 May 2024 par 10).
5. The subdivision of the site is subject to a Bushfire Safety Authority (BFSA) issued by the NSW Rural Fire Service (RFS). The BFSA requires that the whole site be maintained as an Inner Protection Area (IPA).
6. The requirement that the whole site be maintained as an IPA (including each of the individual lots created by the new subdivision) continues after the subdivision is registered. The obligation will continue to be imposed on the Applicant including in regard to unsold individual lots, although the obligation in relation to the individual lots passes to the purchaser on completion of the sale.
7. Mr Cork submitted in par 13 of his submissions of 10 May 2024: "The Respondent submits that it is appropriate for purchasers of lots within the subdivision to be given specific notice that they will, on the purchase of the lot chosen by them, assume responsibilities in relation to the management of vegetation within that lot. There are requirements that they would be appropriately required to observe."
8. Condition 83 requires that a public positive covenant under s 88E of the Conveyancing Act 1919 be registered against the title of each of the lots (1 to 21) resulting from the subdivision.
9. The covenant will specify that owners of each lot have mandatory obligations in relation to management of bushfire risks. The covenant is intended to ensure that the vegetation management obligations identified in the VMP will be maintained.
10. When arguing earlier that Condition 83 be deleted, Mr Amirbeaggi referred to MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215, in which Lloyd J considered it inappropriate to impose a covenant to reinforce requirements which could have been imposed in other ways, citing earlier judgments which had warned against relying on covenants when protection was provided for under other legislation.
11. In relation to the proposed deletion of conditions 75(d) and 79(d), the parties had previously agreed to their deletion, but the Respondent had maintained that Condition 83 should not be deleted. Mr Cork, in his submissions of 10 May 2024 in par 4, did not consent to the deletion of Condition 83, but did propose an amendment of Condition 83. "24. The Respondent submits that proposed amended condition 83 is an appropriate response to the issues raised by the Applicant in response to the original condition. The Respondent submits that the Court should approve the modification application and should also approve the amendment of condition 83 as proposed in these Submissions."
12. The Applicant now supports inclusion of Condition 83 (now known as Condition 84 in Annexure A) with its revised wording and I agree that imposition of a public positive covenant is appropriate in the particular circumstances of this case, and that enabling the continuation of management regimes beyond the end of a subdivision consent is a circumstance where a covenant affecting future owners of individual lots is relevant and appropriate. This is not a case where this protection would be provided for under other legislation.

The VMP and Arborist's report

1. Order 7 in Aesthete 2 directed the Respondent to file written submissions on the modified VMP and the Arborist's report, prepared by Mr Jack Williams, of Urban Arbor, and filed on 26 February 2024. The Respondent's Outline Submissions on the draft amended VMP dated 7 March 2024 and on the Arborist's report were filed on 10 May 2024.

Appointment of Arborist and the Arborist's role

1. The need for appointing an arborist to identify trees which can be retained was generated by the RFS requirement that the whole site be managed in perpetuity as an IPA. The requirement for management of the IPA sets limits on the extent of tree canopies and the understorey and ground layer throughout the site so there will be a requirement to remove some existing trees as well as manage the understorey and ground layers. Mr Whyte, the ecology expert for the Applicant, has knowledge of tree identification and general biology but does not hold arborist qualifications.
2. The Respondent in its submissions on the amended VMP and the Arborist's report dated 7 March 2024 identified concerns in pars 4 and 5: "4.The Respondent anticipated that the tree survey would be undertaken to meet the Court's nominated requirements. The Respondent also anticipated that its task, when draft VMP 2024 was provided to the Court by the Applicant, it would be a simple checking exercise. Draft VMP 2024 would be reviewed against the requirements nominated in the judgment and checked to ensure that each requirement, including required additional content, had been satisfied or included. 5. The Respondent submits that the tree survey was not undertaken in accordance with the Court's requirements, as set out below. The tree survey was undertaken by Mr Jack Williams of Urban Arbor Pty Ltd (UA), as indicated on page 2 of the UA tree survey that has been filed with the Court. Mr Williams on behalf of UA prepared the Tree Survey Report dated 14 February 2024 that has been filed with the Court (UA report)."
3. In the letter from the Respondent's solicitors to the Applicant's solicitors dated 22 January 2024, labelled "MK-1" attached to the Respondent's outline submissions on the amended VMP dated 7 March 2024, pars 9-11 read:
4. The Respondent's estimate of the possible speed at which the matter could be resolved was, unfortunately, over optimistic.
5. In the Respondent's outline submissions dated 7 March 2024 on proposed conditions of consent which remained in dispute, the following submissions were made in respect to proposed Condition 31: "25. The parties agree that a project arborist should be appointed. The Applicant, in its communication to the Respondent (Via solicitors) opened on 4 March 2024, contends that it is not necessary for one arborist to be appointed and to be retained for the entire project. The Applicant proposes a requirement that the project arborist be independent of the Applicant and hold nominated qualifications and a nominated professional membership. 26. The Respondent accepts that the project arborist should not be employed by the Applicant. However, the Respondent (in response to the Applicant's submissions received today) proposes that the third paragraph within condition 31 be re-phrased to read: The applicant shall appoint a Project Arborist, being an Arborist independent of the applicant with a minimum qualification of AQF Level 5, and holding a current membership of either: a) Arboriculture Australia (Registered Consulting Arborist); or b) Institute of Australian Consulting Arboriculturists. The person appointed as the Project Arborist should, if possible, be the Arborist who advised on the preparation of the approved VMP. However if that is not possible, or if the person appointed is unable or unwilling to continue to act, then a new project arborist is to be appointed. 27. The Respondent opposes the Applicant's proposed inclusion of the words "unless necessary to carry out the subdivision works" within each of paragraphs 31(c), 31(d) and 31(e). 28. Paragraphs 31(c), 31(d) and 31(e), as proposed to be amended by the Applicant, will relate to the exclusion zone that is to be established in accordance with condition 31. By definition, the exclusion zone should not be the site of any of the activities identified in paragraphs (a) to (f). The addition of the proposed words would compromise the creation of the proposed exclusion zone and, in effect, render that zone meaningless."
6. In the Respondent's outline submissions on the amended VMP dated 7 March 2024, par 38 reads: "38. Condition 31 as proposed by the Respondent (and the Respondent understands, accepts at least in principle, by the Applicant) requires the appoint of a Project Arborist. That person should be referenced in paragraph 1.1.2 The Participants of draft VMP 2024. Similarly, the qualifications of the Project Arborist, minimum AQF5 qualification (and, in the Respondent's submission, membership of one of the two nominated professional associations in the Respondent's draft condition 31) should be specified in section 1.2 of draft VMP 2024."
7. The Applicant appointed Mr Williams as Arborist to prepare the tree survey (that was included in the Arborist's report dated 14 February 2024 and attached to the VMP prepared by Mr Whyte of EnviroEcology dated 8 March 2024 and filed on 14 May 2024). The role of the Project Arborist will be spread out over a considerable time period. The appointed Project Arborist's time will not be committed solely to the one project, they would also be working on other projects. The Applicant should as far as possible plan for work requiring Project Arborist supervision to occur when the Project Arborist can be present. There may be a few occasions where a clash with the Project Arborist's timetable is inevitable. To require the Project Arborist to be replaced by a newly appointed Project Arborist, possibly at short notice, would impose delays and, in my opinion would be an excessive imposition on the Applicant. The appointed Project Arborist is part of a company which employs other arborists, and he would also have knowledge of other arborists outside his company, with appropriate qualifications, who could carry out work at short notice. The Project Arborist is to appoint one or more potential understudies, and brief them on what would be required if they were called upon. Their appointments are be notified to the parties, and in the event of them being called upon they would be remunerated by the Applicant at a rate determined at the time of their appointment and advised both to the potential understudy(ies) and the Applicant. The draft conditions of consent require supervision of a number of activities by an arborist. The proposed wording of Condition 31 in the consolidated version of the draft 'without prejudice' conditions of consent submitted to the Court dated 27 February 2024 contains requirements for the Project Arborist to hold certain qualifications and memberships of professional bodies and also requirements for the Project Arborist to be replaced if the originally appointed Project Arborist is unable to continue to act. I consider that a requirement to resign is unnecessary and have amended Condition 31 to allow for the appointment of 'temporary arborists'.
8. In the event that there are occasions when the Project Arborist is unable to be present on site when activities requiring supervision by an arborist are scheduled to occur, an arborist appointed under the regime proposed above (in [42] and reflected in Condition 31) is to be present. The revised VMP is to specify that 'if the Project Arborist is unable to be present on every occasion, when supervision by an arborist is required, a replacement arborist appointed under Condition 31 is to be present'.

The tree survey

1. The final paragraph on p 9 of the Respondent's submissions of 7 March 2024 discusses retention of the tree canopy in the IPA and points out that there is "no diagram to demonstrate the minimum level of tree removal necessary to comply with RFS IPA requirements."
2. The last two figures in the Arborist's report depict location of trees and show the distribution of trees and the estimated TPZs. Canopy dimensions are provided in the Table which is Appendix 2 to the Arborist's report. It is difficult to visualise from the table how these data translate to canopy extent and structure. A reader could plot the data and construct their own diagram, but given the instruction given, this is a task which should have been carried out by, or on behalf of, the Applicant. The revised VMP is to include a plan (or plans) showing canopy distributions for all trees.
3. The mapping of TPZs is important to visualise the potential construction impacts through soil disturbance, while the distribution of canopy is important in relation to meeting the IPA requirements.

Limiting potential of plant pathogens that cause plant death or retarded growth

1. In Aesthete 1 at [331]-[333], I considered measures which would be appropriately applied to limit the risk of plant pathogens being introduced to the site during construction work.
2. In section 3.2.1 of the 8 March 2024 version of the VMP, the Applicant states that "nor is a step through disinfectant bath by workers required. The measures identified in the VMP are sufficient to prevent transfer of plant diseases."
3. The Respondent specifically supports the requirement that workers step through a disinfectant foot bath before entering the site and take other simple precautions to prevent infection entering the site, and contends that section 3.2.1 in the VMP version of 8 March 2024 be amended to impose the requirement.
4. Plant pathogens are emerging as a major threat globally to a wide range of species growing in natural or semi-natural ecological communities, particularly, but not restricted to, trees. The pathogens concerned vary in their biology and modes of dispersal. In the context of the development and the vegetation of the site, the pathogen that is currently of greatest concern is Phytophthora.
5. Control measures to limit the spread of Phytophthora have been applied across Australia for many years and have often included disinfectant foot baths.
6. Section 3.2.1 of the 8 March 2024 version of the VMP provides details of removing mud from vehicles and equipment but does not discuss disinfectant foot baths other than making the assertion that they are not required.
7. As a precautionary approach, disinfectant foot baths are to be provided, and section 3.2 (or its equivalent if there are changes in the numbering of sections or sections are otherwise changed, from earlier versions) of the VMP is to be amended accordingly, including specifying locations of foot baths.

Retention of trees

1. The Respondent included in the submissions an email from Mr Amirbeaggi labelled by the Respondent as "YB-1" which reads as:
2. The opening paragraph of "YB-1" identifies that the Applicant is "required to mark out the plan below by way of tree survey those trees that will remain".
3. The Arborist's report of 18 February 2024 forms Annexure A to the VMP of 8 March 2024 identifies 16 trees that could potentially remain viable for retention (in par 4.6). Details of the trees are provided in the table which constitutes Appendix 2 to the Arborist's report. The trees have been tagged with a silver metal tag. The Respondent has not raised any concerns over the identification to species level of the trees.
4. In par 4.8 of the Arborist's report (which is Ex N), Mr. Williams is of "the opinion that trees identified as 2, 4, 8, 9 and 12 may not be viable for retention because of likely encroachment into the TPZ".
5. This statement - "the trees may not be viable" - is not absolute. There is no indication of whether measures to permit reducing the encroachment into the TPZs of at least some of the six trees would be possible.
6. In the Arborist's report, section 2.3 states: "Sometimes encroachment into the TPZ whilst undertaking civil work is unavoidable. If there is any such encroachment the Project Arborist should be consulted to determine whether the tree may be retained."
7. Encroachment into TPZs may be unavoidable in some circumstances, but Mr Williams did not document any investigation into whether there may be ways to modify the civil works to reduce encroachment into TPZs. If the size of the civil works is determined by the size of what is to be installed, for example the diameter of a sewer pipe which could not be smaller, and/or because what it connects to cannot be moved, then encroachment into TPZs may be unavoidable if the development were to be approved, although mitigation in some form is likely to be required.
8. If the encroachment would be due to the nature of the machinery proposed to be used for infrastructure construction, could smaller machinery be used which would enable the desired construction to be completed but with a lower environmental impact? This is an issue which has been raised several times during the hearing and over which no agreement between the parties was reached.
9. Because of the nature of the construction work required there may be instances where there is no opportunity to use different types of machinery, but there was no indication in the Arborist's report that any inquiries were made by the Arborist as to whether impacts could be reduced using different machinery.
10. I am concerned that the decision to determine that the trees may not be viable reflects the concerns of the contractor, without consideration of other options (as I raised in [297] in Aesthete 1). "[297] 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)."
11. All of trees 2, 4, 8, 9 and 12 are to be retained, unless Council agrees that operational requirements justify removal. Application to remove any of trees 2, 4, 8, 9 and 12 is to be made to the Council at least three (3) weeks before any planned work to remove trees. The Applicant is to revise the VMP to include this instruction.

Management of IPAs

1. Management of areas as IPAs has consequences for the nature of the vegetation and biodiversity as a whole present on the site, given that vegetation provides the habitat of many species. Flora surveys of the site had been conducted on a number of occasions, and information from these surveys had been used by the Applicant to specify the future vegetation in the APZs. Details of the timing of surveys and their objectives were provided in section 2.3 of the 2024 amended VMP:
2. In Winifred West Schools Ltd v Wingecarribee Shire Council [2024] NSWLEC 1799 (Winifred West), bushfire risk was an important matter for consideration. In that matter the RFS required an extensive APZ, of which a large part would be managed as an IPA.
3. I expressed concern in my judgment in Winifred West that if the management requirements for the IPA were to be observed strictly, which, if the requirements were written into the conditions applied to the grant of development consent, I must assume they would be, the result would be a change to the species composition and structure of the ground layer, including potentially favouring introduced grass species over native grasses (Winifred West at [290]-[291]).
4. Given the nature and extent of the likely eventual development on the site subsequent to the completion of the subdivision and the sale of individual lots to future landholders, I would not consider that the loss and change to biodiversity is likely to be such that the changes consequent on approving the current modification application would be grounds for not granting development consent for the subdivision. The impacts on biodiversity when the original consent was modified to increase the number of lots to 21 would have been considered by the parties before they reached the s34 agreement, and they must have considered the impacts on biodiversity to be acceptable. The Commissioner presiding over that s34 conference accepted the parties' agreement as one that was lawfully available, as he was obliged to do, and so did not carry out any merits assessment. The whole site is to be managed as an IPA when subdivision occurs, including what, after sale, will become individual lots with dwellings. Satisfying the RFS requirements will, for the canopy layer, result in changes to overall canopy cover, through canopy thinning and the canopies of individual trees to be more than specified distances from neighbouring trees. This will necessitate removal of some trees; changes to the shrub and ground layers will also involve some removal of vegetation but until applicants have development consent for dwellings on their individual lots, when clearing will be required, the RFS requirements could be met with less than complete clearing. The revised VMP is to specify that vegetation management by the Applicant within each of the individual 21 blocks until they have been sold to individual owners is to be no more than necessary to meet the RFS requirements for APZs.

The building pads and batters issue

1. The Respondent in its submissions of 10 May 2024 at par 11 does "not accept, and does not now accept, that conditions should be imposed which allow the building envelopes to be cleared, batters adjacent to the cleared envelopes to be created and vegetation removed within the area indicatively covered by those batters".
2. The development consent, which the Applicant is seeking to modify, is for a 21-lot subdivision and associated subdivision works. The boundaries of the lots are defined, within each lot a future building envelope is shown, being the area within each lot in which in the future a dwelling could be constructed subject to approval. The dwelling will not occupy the entirety of the envelope, although the size of the ground floor plan of the dwelling is not specified. The area to be occupied the dwelling will reflect the wishes of individual owners, and requirements of the BMLEP and DCP and relevant standards. The size, orientation and setbacks between dwellings will be determined during the process of preparing the development applications for individual lots and the subsequent assessment. The actual building is likely to be on a pad, and depending on the circumstances of the individual lots, batters may be required. The Applicant and the Respondent disagree as to the timing of construction of batters, although the joint report of the engineers did not encompass batters, and, although the Applicant's expert indicated that he was not an expert in that aspect of the proposal, he did not seek to amend the joint report, or withdraw from the agreement, and neither did the Applicant.
3. Mr Cork argued that when Mr Williams prepared the Arborist's report, he had not understood the engineering experts' intent when they referred to the J. Wyndham Prince (JWP) plans. Mr Williams' interpretation of the annotations on the plans as provided to him formed the basis of his proposals in his report.
4. Mr Williams in his report considered that: "3.1 The approved subdivision works include: • Road and Drainage Works Plan identified on the engineering sheet number CC011. • Cut and Fill/Bulk Earthworks Plan identified on the engineering sheet number CC010."
5. Plan Sheet No CC010 is marked in the top right corner: "Note: 1. Cut/fill shown on plan taken from design boxing surface to existing surface (no stripping or bulking factors calculated). 2. Localised regrading as instructed by the site superintendent will be required in order to deliver level building pads on each lot for the future house construction."
6. The Arborist's report includes, as the final two unnumbered pages, marked-up versions of plans in the Joint Report of the engineers.
7. The first of these is titled "Tree Location - EnviroEcology Feb 2024", annotated with a handwritten comment "1:1000 approx". The building footprints are shown on this plan.
8. The final page of the Arborist's report is a plan which shows the location of trees and their TPZs. This plan does not include building footprints.
9. The Respondent agrees to the clearing of vegetation for roadworks and other infrastructure and for the clearing of the building footprints so as to meet the RFS requirements for establishment and management of IPAs but not for levelling and construction of batters on the building pads on the individual lots.
10. The Respondent contends that the note on the plan JWP-CC010 relates to the road construction works that are part of the subdivision, being the construction of major road works with their associated cut and fill, the construction of the stormwater drainage including the perimeter swales and internal drainage infrastructure and the construction of the rain gardens (Respondent's written submissions of 10 May 2024 par 23).
11. The judgment in Aesthete 1 did not refer to levelling and batters on the building pads given that such work relates to individual lots which will be subject to future development applications. Works which might be required by future owners could not be specified on the JWP plans as they have not yet been designed, and no development application for individual dwellings has been submitted.
12. Plan CC010 is included in the Table of Plans in Condition 1 of the Conditions. The plan is marked in the top right corner with two notes (see [76]). The second note is to be deleted. It does not form part of the approved plans and I direct that Note 2 be removed from Plan CC010 Version D 17/8/22. After removal of Note 2, the plan is to be known as Plan CC010 Version E (see Condition 1B of Annexure A).
13. Development applications for the individual lots will be made in due course by or on behalf of individual lot owners, and will be assessed by the consent authority against conformity with relevant legislative requirements and consideration of the merits of the proposal. If consent is granted, the consent authority will impose appropriate conditions of consent.

Need for flexibility

1. Section 3.2 (Mitigation) of the second 2024 version of VMP (filed on 14 May 2024) has been amended from the approved 2020 version and the 2021 and earlier 2024 versions to remove a paragraph requiring works to cease in wet weather. The Respondent considers that this paragraph should be reinstated.
2. Wet weather is not defined but could encompass a range of conditions, and whether they would impact on work being conducted would depend on the nature of the work to be performed and the likely intensity of rainfall expected. Although the discussion has focused on rain, it could be expanded to adverse weather conditions more generally, such as strong winds or dry lightning. Cessation of work might, in particular circumstances, be required for occupational health or safety reasons or to limit environmental damage. To cover every possible weather event the drafting of a condition would be complicated. I will not direct that section 3.2 of the earlier VMP be reinserted.
3. The required section 3.41 of the 2021 version of the VMP is to be amended to contain a statement that in some circumstances work is to cease, or be amended, if weather and site conditions required, and the decision would be taken by the relevant on-site manager. (I would anticipate that the site manager would be fully au fait with occupational heath and safety requirements, and also the need to avoid equipment becoming bogged.)

Possible translocation of fauna

1. Relocation of individuals of certain fauna species was discussed in [251]-[254] in Aesthete 1. The comments made in Mr Cork's submissions of 7 March 2024 raise issues about the lack of guidance provided for possible works on the ground which might be associated with translocations. The Respondent requested that this lack be addressed.
2. Some aspects of possible relocation will not be able to be addressed and resolved unless and until animals are detected when clearing occurs.
3. Absence of records of species of potential concern in the period before clearing does not preclude the possibility that sampling on other days, or at different times of day, or in different seasons may reveal the presence of species of concern.
4. If species of native vertebrates (birds, reptiles (snakes and lizards), amphibia (frogs) and mammals - (which in the context could include bats, small arboreal mammals (possums and gliders) and small ground dwelling mammals) are located on the site in the course of subdivision works the information needs to be shared between the parties as quickly as possible. The revised VMP is to be amended so that if during the course of subdivision works any native vertebrate species (birds, reptiles, amphibia and mammals) are sighted or captured on the site, relocation is to be suspended until:

• the project ecologist has determined whether there is a need to translocate the newly located species, and
• if so, individuals of the species are translocated in accordance with any necessary approvals under the Biodiversity Conservation Act 2016.

1. Nothing in this judgment or in the conditions replaces the need to obtain any other approvals required from other authorities, such a need would arise in many approvals (see Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 (NHVSS) at [9]). The need for authorities additional to the consent authority may be known at the time an application for development consent is submitted. In other cases, it may arise at a later time - for example if an unanticipated threatened species were located on the site.
2. In [252]-[254] of Aesthete 1 questions were raised, inter alia, about amphibians, Mr Whyte in the 8 March 2024 VMP section 3.11 notes that the March 2019 survey did not identify any amphibians on the site, but that if any amphibia were located during the course of work the project ecologist is to take appropriate steps to relocate tadpoles of amphibia, if appropriate, to rain gardens.
3. Detectability of species of frogs, reptiles, birds and native mammals within the subject site will depend on what is known about the biology of the species and on the season when the survey is conducted. Appendix E of the 2024 version of the VMP dated 8 March 2024 specifies that pre-clearing inspection should be conducted 10 days before clearing, but does not indicate when (even at the level of season) clearing will occur. The Applicant's decision on when to commence work if consent is granted will be determined by a number of factors, possibly including financial considerations and the availability of contractors, rather than occurring solely at what would be the optimal time for detection of species. Survey at the most appropriate time for detection would be ideal, but given that the initial subdivision work has commenced, sampling for vertebrate fauna may have to be arranged regardless of whether the timing is ecologically optimal for detection.
4. It is not clear whether the March 2019 survey included targeted attempts to detect amphibia. In recent years the amount of data on the occurrence of identified amphibia at defined locations across the state has increased considerably, particularly following the availability of the Australian Museum Frog Call Identification app. Even if there are no records from within the site, or at similar locations within the vicinity of the site, there should be sufficient data available from sites at similar elevation with similar topography, hydrology and vegetation across the Blue Mountains to predict which species are likely to occur within the subject site. The Applicant's ecologist is to compile a list of native vertebrate species with the potential to occur on the site, and prepare short notes and illustrations to be provided to all workers on the site prior to clearing. Any sightings of native vertebrate fauna, even if potential identifications are lacking, are to be reported to the project ecologist immediately. The list and notes and illustrations are to be included in the revised VMP. If any species detected are listed as threatened, National Parks and Wildlife Service are to be notified and instructions sought from the Applicant are to be provided to National Parks and Wildlife Service.
5. The 2024 version of the VMP specifies in section 3.1.1 the nature of required plantings on the site, including within the rain gardens. However, although the issue was raised in Aesthete 1 at [255], Mr Cork points out in his submissions of 7 March 2024 at par 36, that the Applicant in the revision of the VMP had not addressed whether the proposed plantings in the rain gardens would be appropriate as habitat for fauna including amphibians. The proposed plantings are of species which occur in wetlands across the Blue Mountains so it is likely that the rain gardens could be appropriate habitat, but the Applicant has not provided confirmation and is to do so in the next version of the VMP. The revised VMP is to specify that the vegetation to be planted in the rain gardens will provide potential habitat for tadpoles which could occur in the area.
6. In Aesthete 1, the issues of removal and possible relocation of hollow-bearing trees (HBTs) was discussed and I cited the Site Clearing Protocol and the investigation of HBTs included in the 2021 VMP at [251]. "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 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 some might be salvaged and placed in retained vegetation. Whether there are hollows which might provide potential habitat might not be determined until a tree has been felled. In the 2024 draft VMP section 3.4 includes the statement "Any fauna found or displaced are to be relocated to the installed nest boxes". There is not, nor can there be, any estimate of the number of individuals of faunal species of concern which might be found and need to be relocated, but the number of nest boxes is small. No mention is made of reptiles or amphibians For many species of which these boxes may be inappropriate. No locations, on or off the site, to which translocations might occur are suggested.
7. In Aesthete 1 at [251] I required section 3.4 of the VMP version of 8 March 2024 to provide guidance on relocation of hollow segments from trunks of trees which were removed. Section 3.4.1 in the VMP 2021 has been replaced by section 3.4 in which relocation of hollow segments is not specifically addressed. Draft VMP 2024 requires that the existing 12 nest boxes are to be removed and reinstalled on retained trees, prior to removal of the trees on which nest boxes are currently installed. There will be few trees on which the boxes could be relocated, but the issue of densities reaching or exceeding carrying capacity is not addressed. The VMP is to include an assessment of carrying capacity and how, if the number of animals exceeds the carrying capacity, the issue will be addressed. The few trees that will remain will be limited in their capacity to support more nest boxes, and the discussion in the VMP is based on there being only 12 boxes. Twelve is not a magic number, so there is a possibility that more boxes could be needed; a protocol for determining where they would be situated is to be included in the VMP, which is to be revised accordingly.

The Arborist's report as an exhibit

1. In Aesthete 2, I directed the Applicant, through its ecology expert Mr Whyte, to make amendments to the VMP and include the Arborist's report as an annexure. In discussion, the parties had agreed that the Arborist's report and the VMP could be received by the Court as an exhibit; I indicated that the revised VMP, with the Arborist's report as an annexure, would become Ex M.
2. I no longer consider that Ex M should consist of both the modified VMP and the Arborist's report combined in the same exhibit.
3. Rather than go through the process of rewriting the Arborist's report, and then considering how the revised report should be reflected in the revised VMP, it would be more efficient if Mr Whyte, in discussion with Mr Williams, made changes to the VMP.
4. The parties had agreed to the revised VMP and, as an annexure, the Arborist's report, becoming exhibits. They should be two separate exhibits. I will label the revised VMP 'Ex M' and the Arborist's report filed on 26 February 2024 'Ex N'.
5. The Respondent in par 35 of its submissions of 7 March 2024 argues: "In summary, a second tree survey must be undertaken. That tree survey should be based on the Joint Plan, including the proposed clearing of vegetation within the building envelopes. The further survey should not assume the levelling of the building pads or the creation of batters in association with the levelling of the building pads or building envelopes." There are a number of aspects of the tree survey which were unsatisfactory as identified elsewhere in this judgment. The Arborist may have overestimated the amount of clearing required during the subdivision phase by assuming that leveling and construction of batters would occur during the subdivision phase and I agree with the Respondent as to the need for resurvey of future individual lots without assuming theoretical batters. The resurvey must occur, and the results be taken into account, before the revision and submission of the revised VMP.
6. The Respondent provides details in the tables to par 36 and 37 of the Respondent's submissions dated 7 March 2024 of additional matters where it considers the requirements of the 2023 judgment to amend the VMP have not been reflected in draft VMP 2024. These tables have been of assistance in requiring changes required in the VMP, and have been read carefully; many, but not all, changes proposed by the Respondent have been adopted.

Requirements for monitoring and adaptive management

1. Monitoring of the condition of vegetation is required. The VMP proposes that monitoring of vegetation within the site should be undertaken for two years until each of the individual 21 lots have been sold. The Respondent understands that vegetation on the lots not sold would continue to be managed by the Applicant until the sale of the last sites. This could be more than two years after the issue of the subdivision certificate. The Respondent considers that whether there will be monitoring of unsold lots beyond two years after the issue of the subdivision certificate should be clarified.
2. Once all the lots are sold the development consent ceases to have effect. Whether that is in two years, four years or even longer, monitoring will cease before the state of the vegetation is likely to have stabilised. What monitoring could be required on each individual lot, how monitoring would be co-ordinated across the whole of the original site, who would be responsible for monitoring, to whom would the data be provided and who should be responsible for any rectification needed remains to be established. Such questions are not unique to this particular development and site, and reflect a weakness in the current requirements for monitoring biodiversity during the subdivision process and subsequently during and beyond the construction phase. A monitoring regime is to be specified as part of the final VMP. This must address coordination of the monitoring regime, identify the person or organisation responsible for conducting monitoring, specify to whom results of monitoring are to be reported, and provide a process for feedback to the ongoing management regime if changes to the management regime are required. Condition 84 (previously known as Condition 83) requires ongoing management of lots regardless of ownership, under the terms of the s88E covenant which will be imposed. Condition 84 c) requires that until such time as development consent is granted for a dwelling on an individual lot, the lot owner is to undertake vegetation management works to comply with RFS requirements twice annually.
3. Requirements for adaptive management are a feature of many conditions, but the term is often used in a very generalised sense. The nature of adaptive management was described by Preston CJ in NHVSS at [184]: "184 Adaptive management is a concept which is frequently invoked but less often implemented in practice. Adaptive management is not a "suck it and see", trial and error approach to management, but it is an iterative approach involving explicit testing of the achievement of defined goals. Through feedback to the management process, the management procedures are changed in steps until monitoring shows that the desired outcome is obtained. The monitoring program has to be designed so that there is statistical confidence in the outcome. In adaptive management the goal to be achieved is set, so there is no uncertainty as to the outcome and conditions requiring adaptive management do not lack certainty, but rather they establish a regime which would permit changes, within defined parameters, to the way the outcome is achieved."
4. When adaptive management is discussed in the VMP, the hypotheses which are to be tested must be presented and the nature of the feedback regime which would be established so that monitoring results could, if necessary, lead to changes in the management regime is to be provided. I direct that the hypotheses to be tested by monitoring and the process of feedback between monitoring results and continuing management are to be included in the revised VMP. The length of time during which monitoring would occur is likely to be a limitation on its effectiveness, but the imposition of the s88E covenant will provide for management beyond the subdivision construction stage.

Weed management

1. Invasion and establishment of weeds is a continuing process that requires active management across all of New South Wales. 'Weed' is a broad term and can encompass exotic (introduced from overseas or interstate) species and also species native to New South Wales which have been introduced (deliberately or accidentally) outside their natural range and have spread into bushland (Cootamundra wattle being an example). Local councils have responsibility for publicising weed threats and discouraging planting of potentially invasive weeds.
2. Weed management will be a continuing requirement across the site and the VMP provides for this and establishes performance criteria. However, as the Respondent identifies in par 37 of its submissions of 7 March 2024, there are differences between the performance criteria for weed management between the 2021 and 8 March 2024 versions of the VMP and between sections 3.13 and 3.14 in both versions. Performance criteria in the 2024 version require initial reduction in cover of total weed within the first two years, with further reduction by 10 years, even though the VMP is said to apply for only two years.
3. The internal inconsistencies present in the March 2024 VMP regarding weed management are to be eliminated in the revised VMP and, in a table, the changes in proposed management since the 2021 VMP are to be identified.

Chronology of required activities

1. The Respondent also considers that the Schedule of Activities in Table 3.5 of the VMP should be in chronological order and clearer timing provided. A chronological order may be preferable, although there are likely to be differences of opinion on the appropriate order of works, the time of commencement of particular activities, and the length of time for the completion of each activity (although this would need to be interpreted flexibly if periods of major rainfall occurred or there is a severe prolonged drought). The Respondent has issued guidelines to the preparation of VMPs. Observance of the Guidelines is not mandatory but they identify the matters that Council wishes to be informed about before making a determination of a development application. The information requested is largely covered in the Applicant's documentation, although not necessarily under the same headings. One of the requests is for a timeframe: E. Prepare a timeframe - Gantt chart (or similar) Indicate a timeframe necessary for the completion of each task. A Gantt chart or similar may assist in presenting the VMP tasks in a logical sequence for their implementation. The VMP may require work to be undertaken over a brief (e.g. 3 month) timeframe or an extended period (e.g. 3 years). This will depend upon the size of the site, the type of development proposed, who will be undertaking the work and the complexity of the issues present on the site. The timing of works may need to coincide with key stages of the development e.g. prior to commencement of works, or the issue of a Construction Certificate or Occupation Certificate. (The Guidelines, p 6) The application before the Court is for subdivision and so only extends to the issue of a subdivision certificate, not a construction or occupation certificate. Nevertheless a timeframe of tasks, and an estimate of length of time for completion will be of assistance, and is to be provided in the VMP in some form (Gantt chart is one option but there are others which the Applicant may consider more appropriate); the chronology should also accommodate the possibility of changes required by changing circumstances (including weather).

Other matters raised by the Respondent

1. The Respondent in par 37 of its submissions of 10 May 2024 presents a table of changes to the VMP between VMP 2021 and draft VMP 2024. The Respondent submits that the judgment in Aesthete 1 did not require changes to VMP 2021 other than those specified in the judgment. That is so, but the need for the Applicant to review the VMP provided him an opportunity to identify and amend, where he thought appropriate, other aspects of the VMP. The VMP which has been formally approved is the 2020 VMP - much effort was expended on comparing unapproved version of the conditions.
2. Notes 1 and 2 in Mr Cork's submissions of 7 March 2024 were: Note 1: Figure 3-3 to draft VMP 2024 is titled "Street Tree Plantings". Figure 3-3 depicts 19 street trees. That was also the case with Figure 3-3 in VMP 2021. However, section 3.9 of each of VMP 2021 and draft VMP 2024 requires the planting of 20 street trees. Figure 3-3 in draft VMP 2024 should be amended accordingly. Note 2: Draft VMP 2024 incorrectly retains throughout the VMP the JWP plans issue B dated 27 July 2021 rather than the new plans prepared by JWP dated 17 August 2022, version C. All incorrect plans should be omitted and the correct plans inserted.

If these matters have not already been addressed, I direct that the necessary changes be made in the revised VMP.

1. Council, through Mr Tully, commented on draft Condition 21A that there could be a greater variety of street trees planted, rather than just two species - water gums Tristaniopsis laurina and Angophora costata. The Council proposes that if I approve the 2021 VMP that water gums not be included. The suggestion that water gums be planted arose during the hearing, when they were suggested as a possible species with potentially desirable characteristics. The only approved VMP currently is VMP 2020, and a revised 2024 VMP is still to be produced and approved. In Aesthete 1 at [316], I suggested: 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. and the 2024 revision is still to be completed. The street trees will be planted by the Applicant although the long-term maintenance as street trees will be the responsibility of the Respondent. The nature of the street trees to be planted will be determined following discussions between Mr Whyte and the Arborist and appear in the VMP. The total number of street trees is fairly small so the number of species chosen would be less than the number of individuals.
2. In Figure 3.1 of the VMP 2021, MZ2 (retention areas) are specified for mulching and site regrading. The Respondent in its submissions of 7 March 2024 par 37 (p 12) interpreted 'regrading' as indicating that 'earthworks are proposed in this area'. It was my interpretation of VMP 2021 that regrading would not occur. If the intent of the wording in VMP 2024 was to indicate that earthworks would occur in the MZ2 area but provides no location(s), the revised VMP is to identify what, if any, earthworks are proposed in Management Zone 2 (MZ2). If regrading is proposed then the VMP should remove reference to regrading and specify that no regrading is to occur.
3. In the earlier version of the VMP in 3.7.3, the following was stated: "Under-scrubbing/clearing is to be undertaken throughout MGT1 & MGT2. All trees and the majority of vegetation mulch generated from clearing within MGT1 is to be removed and taken off site. The shrubs and ground covers within MGT2 are to be mulched in-situ using a rubber tracked posi truck however trees are to be retained." Use of such machinery would minimise environmental damage, and the requirement is to be included with the revised VMP. MGT1, MGT2 and MGT3 are the names given to Vegetation Management Zones as mapped in Figure 3.1 of the VMP prepared by Mr Whyte of EnviroEcology dated 8 March 2024 and filed on 14 May 2024.
4. In Figure 3.2 Habitat Tree HBT4 was to be retained but in the draft VMP 2024 it is not retained. No reason for the removal of HBT4 was provided. HBT4 is to be retained, unless there are strong reasons for removal. If the Applicant wishes to remove HBT4, an application is to be made to the Respondent for approval at least three (3) weeks prior to the date proposed for removal.
5. In section 3.7.3 APZ,16 trees were selected for removal within MZ2, and they were to be removed using 'sensitive methods'. 'Sensitive Methods' were defined in the 2021 VMP as being that trees would be 'cut by hand to ground level, cut up and removed using rubber tracked equipment to reduce impacts upon retained trees/shrub and ground vegetation'. Use of sensitive methods to was not included in either the February or March versions of the VMP. The definition of sensitive methods is to be included in the forthcoming version of the VMP, which will also require that tree removal in MZ2 is to be achieved by use of sensitive methods. Under both of the 2024 versions of the VMP, most of the trees will be removed. The Respondent interprets the change as being due to the Arborist assuming that the future building pads would be levelled and batters would be constructed. This is not what was agreed to by the joint experts in engineering, and I have ruled that the agreed plans do not include notations dealing with the levelling and batters.
6. Section 3.7.3 of VMP 2021 provided for retention of a range of age and size classes of trees in MZ2 and retention of all ground layer and understorey vegetation. The proposed changes in VMP 2024 refer to the RFS Standards for Asset Protection Zones, which require the whole site to be managed as an IPA. The RFS Standards are prescriptive and mandatory. They would take precedence if any requirements in the VMP would require lesser clearing. The Respondent in its outline submissions dated 7 March 2024 on the amended VMP at p 12 par 37 points to removal of a number of actions in 3.7.3 of the 2021 VMP including retention of 15% canopy, groves of trees of a variety of age classes and retention of all native ground and understorey vegetation. The canopy retention rule, when combined with required separation between canopies may not be able to be met for all age classes at the local scale. The RFS requirements for ground and understorey do not differentiate between native and introduced species so retention of all native ground and understorey vegetation may not be compatible with the RFS requirements. It would be desirable in an ideal world to meet the criteria specified in the 2021 VMP but this may not be achievable given the RFS requirements.
7. The two draft 2024 versions of the VMP refers in section 3.13 to two management plots being established in each management zone. Figure 3.4 shows three monitoring plots in MGT2, but no plots are shown in zones MGT1 and MGT3. Monitoring of the vegetation in all the management zones as required by section 3.13 is essential, despite it likely to occur for only a few years. The revised VMP is to require that at least three monitoring plots be established in each of Vegetation Management Zone MGT1 and MGT3 and the location of the plots is to be shown on an appropriate figure.
8. Performance criteria for weeds are not proposed to be assessed in zone MGT1. This zone is to be entirely disturbed and will be highly vulnerable to weed invasion. The revised VMP is to provide for weed assessment in Vegetation Management Zone MGT1.
9. The revised VMP is to provide for hydromulching to occur after the subdivision works are completed. The Respondent considers that hydromulching should be progressive, as bare ground will be likely to receive continuous input of weed propagules. The revised VMP must provide for management, which may include hydromulching, of disturbed areas to limit erosion and promote native vegetation re-establishment.
10. The Project Arborist is to be included in the listing of participants in paragraph 1.1.2 of the revised VMP.

Discussion

1. The current matter is an application for modification of an existing approval for development on the site, so if the modification application were not upheld the Applicant could continue to develop the approved 21-lot subdivision. However, the parties are in agreement that the current application will provide a better management of runoff and drainage than proposed previously, but the advantages of the proposed hydrological management regime would not occur if the modified drainage works were not part of the development.
2. If the modification application were not upheld this would not prevent the Applicant making another application for modification - indeed the Applicant would be able to make such an application under any circumstances. The decision to be reached in the present matter in no way predicts or pre-empts any future application.

Directions

1. In the course of this judgment, I have identified a number of matters which must be addressed by the Applicant in the revision of the VMP. There is overlap between a number of the conditions, but I do not perceive conflict between conditions so do not require a wholesale rewriting to remove duplication. That requirements to apply the VMP occur in several conditions serves to emphasise the importance of the role that the VMP will play. The changes to the VMP that are required appear in Condition 7, but for convenience are also listed below:

• The revised VMP submitted for approval by Council is to address the matters raised in the judgment and to include acknowledgement that the Blue Mountains Development Control Plan 2015 currently applies and to identify any parts of the VMP which are not compliant with the DCP (at [20]).
• The Blue Mountains City Council's Vegetation Management Plan Guide: Guidelines to assist in the preparation of a Vegetation Management Plan (February 2016) is to be cited in the revised VMP (at [21]).
• The revised VMP is to specify that 'if the Project Arborist is unable to be present on every occasion when supervision by an arborist is required, a replacement arborist appointed under the terms of Condition 31 is to be present' (at [46]).
• The revised VMP is to include a plan (or plans) showing canopy distributions for all trees (at [48]).
• Section 3.2 of the revised VMP is to be amended to require provision of disinfectant foot baths and specify their location (at [56]).
• The revised VMP is to require that all of trees 2, 4, 8, 9 and 12 are to be retained unless Council agrees that operational requirements justify removal. Application to remove any of trees 2, 4, 8, 9 and 12 is to be made to the Council at least three (3) weeks before any planned work to remove trees (at [67]).
• The revised VMP is to acknowledge that the whole site is to be managed as an Inner Protection Area (IPA) (at [71]).
• The revised VMP is to specify that vegetation management by the Applicant within each of the individual 21 blocks until they have been sold to individual owners is to be no more than necessary to meet the RFS requirements for APZs (at [71]).
• The revised VMP is to contain a statement that the site manager is to suspend work in adverse (or adverse forecast) weather conditions i.e. where there is likelihood of environmental damage occurring if work were to continue (at [87]).
• The revised VMP is to be amended so that if during the course of subdivision works any native vertebrate species (birds, reptiles, amphibia and mammals) are sighted or captured on the site, relocation is to be suspended until: • the project ecologist has determined whether there is a need to translocate the newly located species, and • if so, individuals of the species are translocated in accordance with any necessary approvals under the Biodiversity Conservation Act 2016 (at [91]).
• The Applicant's ecologist is to compile a list of native vertebrate species with the potential to occur on the site and prepare notes on each species, and to provide the notes and an illustration of each species to all workers on the site prior to clearing. Any sightings of native vertebrate species, even if identifications are lacking, are to be reported to the project ecologist immediately. The list and notes and illustrations are to be included in the revised VMP. If any species detected are listed as threatened, National Parks and Wildlife Service are to be notified and instructions sought from the Applicant are to be provided to National Parks and Wildlife Service (at [95]).
• The revised VMP is to specify that the vegetation to be planted in the rain gardens will provide potential habitat for tadpoles which could occur in the area (at [96]).
• The revised VMP is to include an assessment of carrying capacity for native fauna of vegetation on the site after it has been managed to meet the RFS's requirements for maintenance of the APZ as an IPA, and include a protocol for determining where extra nest boxes (if more than twelve are required to accommodate displaced or newly recorded individuals) would be situated (at [98]).
• The Arborist is to conduct a resurvey of all trees across the whole site to determine which can be retained. (The decision on which trees are to be retained is to determined by the tree health and the RFS requirements for maintaining an IPA). The resurvey must occur, and the results considered in revising the VMP, before the revision and submission of the revised VMP (at [103]).
• A monitoring regime is to be specified in the revised VMP. This must address coordination of the monitoring regime, identify the person or organization responsible for monitoring, specify to whom results of monitoring are to be reported, and provide a process for feedback to the ongoing management regime if changes to the management regime are required. The hypotheses to be tested by monitoring and the process of feedback between monitoring results and continuing management are to be included in the revised VMP (at [106] and [108]).
• The internal inconsistencies present in the March 2024 VMP regarding weed management are to be eliminated in the revised VMP and, in a table, the changes in proposed management since the 2021 VMP are to be identified (at [111]).
• The revised VMP is to include a timeframe of tasks, and an estimate of the time for completion (at [112]).
• If the matters in Notes 1 and 2 in [114] have not already been addressed, I direct that the necessary changes be made in the revised VMP.
• The revised VMP is to eliminate inconsistencies in the discussion of street trees including number and type (at [115]).
• The revised VMP is to identify what, if any, earthworks are proposed in Management Zone 2 (MZ2). If regrading is proposed then the revised VMP should remove reference to regrading and specify that no regrading is to occur (at [116]).
• The revised VMP is to include a requirement to use a rubber tracked posi truck for in situ mulching of shrubs and ground layers in Vegetation Management Zone MGT2 (at [117]).
• HBT4 is to be retained, unless there are strong reasons for removal. If the Applicant wishes to remove HBT4, an application is to be made to the Council for approval at least three (3) weeks prior to the date proposed for removal (at [118]).
• The revised VMP is to include the definition of sensitive methods for tree removal, and require that tree removal in MZ2 is to use sensitive methods (at [119]).
• The revised VMP is to require that at least three monitoring plots be established in each of Vegetation Management Zone MGT1 and MGT3, and the location of the plots is to be shown on an appropriate figure (at [121]).
• The revised VMP is to provide for weed assessment in Vegetation Management Zone MGT1 (at [122]).
• The revised VMP is to provide for hydromulching to occur after the subdivision works are completed. The revised VMP is to provide for management, which may include hydromulching, of disturbed areas to limit erosion and promote native vegetation re-establishment (at [123]).
• The Project Arborist is to be included in the listing of participants in paragraph 1.1.2 of the revised VMP (at [124]).

1. Condition 7 requires the revised VMP to be submitted for approval by the Respondent. The Respondent's task in approving the revised VMP is simply to check that the VMP has been revised to address each matter specified in Condition 7. It does not entail any assessment of the merits of what has been prepared by the Applicant.
2. The Court orders: 1. The appeal is upheld. 2. Modification application SM/45/2015B to modify the development consent granted for subdivision of 54 Luchetti Avenue, Hazelbrook in SM/45/2015A in regard to a number of engineering and vegetation management changes is approved subject to conditions in Annexure A. 3. The Applicant is to file: 1. the revised version of the Vegetation Management Plan approved by the Respondent under Condition 7 of the development consent. 2. the amended Cut and Fill Plan under Condition 1B of the development consent. ………………….. P Adam Acting Commissioner of the Court Annexure A (233102, pdf)

---

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: 09 September 2024