Allen Price & Scarratts Pty Ltd v Shoalhaven City Council

Land and Environment Court (NSW)|2019-10-23

een and Golden Bell Frog Litoria aurea in New South Wales" (1996) 30(2) Australian Zoologist 177 Australian Government, Department of Agriculture, Water and the Environment, "PFAS National Environmental Management Plan 2.0" January 2020 G Daly, "From rags to riches and back again: fluctuations in the Green and Golden Bell Frog Litoria aurea population at Nowra on the south coast of New South Wales" (2014) 37(2) Australian Zoologist 157 National Institute of Environmental Health Sciences, Endocrine Disruptors (online) NSW Department of Primary Industries, "Threatened Species Assessment Guidelines: The assessment of significance" (February 2008) NSW Department of Planning, Industry and Environment, "Saving our Species Hygiene guidelines - Protocols to protect priority biodiversity areas in NSW from Phytophthora cinnamomi, myrtle rust, amphibian chytrid fungus and invasive plants" (April 2020) NSW Department of Primary Industries, "Healthy Estuaries for Healthy Oysters Guideline" August 2017 NSW Office of Environment and Heritage, "Statement of Management Intent: Worrigee Nature Reserve" May 2014 NSW Planning Assessment Commission Determination Report Port Waratah Coal Services Terminal 4, Newcastle LGA Planning for Bush Fire Protection 2006 Planning for Bush Fire Protection 2019 R C Carvahlo & C D Woodroffe, "Evolution from estuary to delta: Alluvial plain morphology and sedimentary characteristics of the Shoalhaven River mouth, southeastern Australia" (2020) 242 Estuarine, Coastal and Shelf Science 106857 R Payne, A Chalmers & J Laxton, "Understanding the characteristics of a groundwater-dependent ecosystem: Eucalyptus parramattensis Woodland at Porters Creek Wetland, NSW" (2012) 12(3) Cunninghamia: a journal of plant ecology for eastern Australia 191-211 Sydney Catchment Authority, "Neutral or Beneficial Effect on Water Quality Assessment Guideline" 2015 Category: Principal judgment Parties: Allen Price & Scarratts Pty Ltd (Applicant) Shoalhaven City Council (Respondent) Representation: Counsel: T Robertson SC (Applicant) M Staunton (Respondent)

Solicitors: HWL Ebsworth (Applicant) Marsdens Law Group (Respondent) File Number(s): 2017/387668 Publication restriction: Nil

Judgment

This matter has a long history, during the course of which issues arose which substantially changed the course of the proceedings.
The matter commenced with the filing of the Class 1 application on 22 December 2017, by which the Applicant, Allen Price & Scarratts Pty Ltd, appealed the deemed refusal of Development Application No. SF10570, by the Respondent, Shoalhaven City Council.
Development Application No. SF10570 was lodged with the Respondent on 8 March 2017 seeking the subdivision of 23A Aldous Place (being, at that time, Lot 586 DP1048099) and 369 Worrigee Road, Worrigee (being, at that time, Lot 587 DP1048099). Later in 2017, a boundary adjustment subdivision (SF10530) of Lots 586 and 587 was registered, creating Lot 6 DP 1236686 (23A Aldous Place) and Lot 7 DP 1236686 (369 Worrigee Road), together Lot 6 (21.09 ha) and Lot 7 (74.52 ha) constitute the subject site in this matter.
Lot 7 is accessed from Worrigee Road. Access to Lot 6 was at the time of the original application from Aldous Place via a right-of-way extending over DP 1213693 to the benefit of the then existing Lot 6 only. To the north, Aldous Place connects to Boston Road - on the north side of which is a low-density residential estate.
On 11 December 2018, the Applicant lodged Subdivision Application No. SF10714 for an adjustment to the boundary between Lot 6 DP 123666 (23A Aldous Place) and Lot 2 DP 1213693 (15 Aldous Place) to provide proposed Lot 101 (currently known as Lot 6 DP 1236686) with direct access to Aldous Place, rather than relying on the existing right-of-way to provide access to the subject site. SF10714 is yet to be determined.
To the north of Lot 7, the site adjoins a crematorium and cemetery operated by the Council. Much of the cemetery site is densely vegetated. To the north-west, the site adjoins the Worrigee Nature Reserve. To the south of the site is an area which either is, or will become, an extension to Worrigee Nature Reserve. This area has been excised from Currambene State Forest, and will provide a link between the remaining part of Currambene State Forest to the south and the original part of Worrigee Nature Reserve, and will be part of a potentially important wildlife corridor. In the Further Amended Statement of Facts and Contentions (FASOFAC) (Exhibit 26 par 20), it is stated that land had been gazetted as an extension to the Nature Reserve under Part 11 of the National Parks and Wildlife Act 1974, and is subject to the Statement of Management Intent: Worrigee Nature Reserve, published by the NSW Office of Environment and Heritage May 2014. However, during the hearing the parties and their experts were uncertain as to the current status of this land and were not able to clarify the position. Nothing depends on this - the land will remain in public ownership and will not be developed. Recognition of this area as being of conservation value means that consideration of any impacts from development on neighbouring land will be required. Figure 1 Exhibit F - Location Map
To the east of the site is the Brundee Swamp Nature Reserve. Rotten Creek and its tributaries traverse the subject site from the south-west and flow into the Brundee Swamp Nature Reserve.
The matter was set down as a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), commencing on site in the car park associated with the previous use of the site as a golf course, accessed from Worrigee Road, on 24 July 2018.
I presided over the conciliation conference. A number of submissions had been received from objectors, in response to the public exhibition of the DA. A number of objectors gave oral submissions.
After hearing from objectors, an inspection of the site, principally that part of the site constituted by Lot 7 was undertaken. Present were the legal teams of the parties and their experts. The inspection was conducted in a convoy of off-road vehicles with frequent stops for closer observation and discussion.
After completion of the site inspection, an adjournment was made to Shoalhaven City Council Chambers in Nowra, where further discussion was held between experts. Progress was reported but no agreement was reached, and the s 34 conciliation was adjourned. Discussions continued subsequently, but as it became apparent that no agreement was imminent, I terminated the conciliation conference on 22 December 2018.
The matter was mentioned before the Registrar on a number of occasions through 2019, and orders were given setting a timetable for the preparation of joint reports in a number of fields. On 21 May 2019, leave was granted for the Applicant to rely on amended plans, which were notified, and further submissions were received.
The hearing commenced on site on 21 October 2019, again commencing at the car park on 369 Worrigee Road. A number of objectors made further submissions which were summarised in Exhibit 13. The inspection which followed covered more of the site than was the case in 2018. The locations where detailed observations were made, and discussions held, are illustrated in Exhibit E reproduced below:
The guidelines are for water quality within oyster aquaculture leases, and not for water leaving a source upstream of aquaculture areas, although the water quality within aquaculture areas will be affected by inputs from upstream.
The route followed was not that depicted in Exhibit E as it commenced at what had been intended as Stop 8. However, the locations at which stops occurred are correctly identified. Exhibit E shows the proposed, but not yet determined, boundary adjustment applied for in SF10714. The inspection took place during drought conditions, so there was little water in ponds or drainage lines above the tidal limit.
The northern part of Lot 6 was inspected, as was the area around Rotten Creek where it flowed into the Brundee Swamp Nature Reserve, which is contiguous with the site to the east. The southern boundary of the site was examined in some detail, with discussion of what, if any, trees would need to be removed along the road, and the value of trees as habitat for arboreal mammals, and the importance of Rotten Creek for Green and Golden Bell Frogs (GGBF) was subject of discussion between Mr Daly (the Respondent's frog expert) and Dr Pyke (the expert for the Applicant). After leaving the site, an examination of a constructed wetland at Isa Road, Worrigee (Stop 10) was undertaken. This wetland had been developed for the purpose of habitat provision for GGBF as part of a suburban development. This provided opportunity for the experts on the frog to discuss the value of requiring construction of habitats for GGBF, and why the particular example being observed had not fulfilled its objectives.
During the course of inspection of the site between Stops 2 and 3 as depicted in Exhibit E, a long low bund was noted to the east of the route. On inspection, this was observed to be made of a grey friable material. I inquired as to whether anything was known about this feature, and the response from those with local knowledge was that it was possibly an emplacement of a paper product which may have originated from the local paper mill. I requested that inquiries be made to ascertain more details.

What was the bund made of?

The next day, in Court, the main concern expressed about the bund was that it might affect surface water flows in low flood conditions; at high floods, water would flow over the feature. "ROBERTSON: We were going to get some instructions on whether that material would be removed. It appears to be acting as some kind of bund wall and so it would obviously affect at least low flooding. Large flood would just pass over it, but I don't know whether what consequence that has but I'll get some instructions on that." (Tcpt, 22 October 2019, pp 1(50)-2(4))
It was indicated on the next day that sampling of the material had occurred. "ROBERTSON: There's one surviving matter which is the assessment of the ‑ as to whether the bund has contaminated material in it. Mr Williams has taken a sample, I understand, three samples but we won't get the test results back until next week. We would propose to seek leave through eCourt to submit the result of that analysis and if there's any fallout from it, if the material is contaminated we'll by agree to a condition to remove it in the usual way." (Tcpt, 23 October 2019, pp 114(49)-115(4))
By the hearing on 4 December 2019 the situation had changed, as the analytical results indicated hydrocarbon contamination. "ROBERTSON: Low level contamination but nonetheless meeting the trigger point in the national environment protection measure 2009 as amended in 2013 which is the standard to which these things are measured. We've analysed the bund for other analytes but none meet the trigger point so there's no carcinogens that will or suspected carcinogens there but there is hydrocarbon contamination. It's not serious. It's not very high. It's not in all areas but it's there. We have subsequently discovered or been advised by our consultant that the fill that comprised the bund was sourced from the Shoalhaven Paper factory that other parts of the site have been filled with it including an area to the southeast of the bund. That area is zoned for a residential development, the bund is not and as a consequence we now have undertaken to analyse the residential area that has been filled with the same material from the Shoalhaven Paper factory. That work won't be completed until 13 December but we are assured by our consultants that it will be completed by then. They have recommended that we prepare a RAP - remediation action plan - and we've accepted that recommendation. In the meantime council has been in correspondence with us and has recommended some further work be done on the site. We have accepted that our consultant should consider whether that work should be done and if they think it should be done they will do it. To a large extent council and my client are in agreement about the areas that need to be tested and we have also accepted that ground water should be tested. At the moment we have soil testing, that is surficial testing of the bund material but we haven't tested the ground water. We must do so downslope of the areas that are the subject of the filling. Just to put you in the regulatory picture we understand that this may have occurred in the early 2000s. At the time when it occurred there were requirements under the Protection of the Environment Operations Act because the material was classified as waste for the source company to have characterised the material and provided written assurance that it was not contaminated and for the transport company - transportation of waste being also something regulated to have conveyed that assurance to the recipient of the waste, us. We understand that there were signoffs in relation to the waste. This was not done, as I understand it, under the table at all but it was - the company was offering the material and it was said to be inert but it turns out that it wasn't at least in relation to hydrocarbons, so that was the regulatory position and we are undertaking a historical examination of what records there are, this having happened many years ago, to see what assurances we were given but whether or not that regulatory material exists I don't think in the end matters given the fact that we accepted an obligation to do this additional work. As you will recall we had both a phase 1 and phase 2 study. Phase 1 study did not pick up the contamination. Phase 2 study-- COMMISSIONER: As I understand it the phase 1 was restricted to the agricultural activity areas and didn't actually look over where the bund is, did it? ROBERTSON: That may be right because the agricultural activity was-- STAUNTON: Likely contaminated, yes. ROBERTSON: --classified as potentially contaminating but there should have been an assessment of aerial photography, historical aerial photography and an inquiry into former land use. Whether or not it was part of the definition of potentially contaminated land under cl 7 subclause 4 of the SEPP. For whatever reason the phase 1 study didn't pick this up. Phase 2 study which is basically following on from the phase 1 didn't pick it up and therefore we've accepted the obligation to satisfy you under cl 7 subclause 1 of the SEPP of the extent of the contamination and the nature of any remediation that is proposed for it. The RAP will deal with remediation options but we anticipate that the first option will be removal but that becomes very expensive because of the Government's landfill tax that we have to pay and we'd prefer to mix it with soil material to reduce the concentration and rebury it on the site if that's available but that's a matter for the contamination specialist, not for us really, so there may be in the RAP a choice of method of destinations for the waste or the RAP specialist may simply say remove to landfill. That has been the first issue that has meant things have had to - we've had to deal with that." (Tcpt, 4 December 2019, pp 1(29)-3(1))
The Phase 1 and Phase 2 studies referred to above were part of the investigations required by cl 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55). At the commencement of the hearing, based on the Phase 1 and 2 reports and the actions proposed, it had been agreed between the parties that contamination issues had been addressed, did not give rise to contentions and could be dealt with by way of conditions.
The hearing was adjourned to allow for further analysis, but when the hearing recommenced on 13 December 2019, there had been a major change: "MERLINO: On the last occasion it was indicated to you the applicant would be doing some further contamination testing and provision of a RAP by today. On doing that further contamination testing, we've found evidence of a substance that has not - it's one of those new contaminant substances, PFAS, for which it is not one of the substances that is part of the NEPN but it has a specific national environmental management plan and there are very low levels of this PFAS substance, however, the finding of this substance means that we have to do further testing again. COMMISSIONER: I mean it's a bit difficult to work out ..(not transcribable).. MERLINO: No. It's a by-product we understand of the paper fill. What PFAS is is a chemical that is used for fire retardant so it's used in non-stick cooking and all manner of - kids pyjamas to make them less flammable, and it was applied, it has been applied to paper to make it less combustible, hence the - and the use of the paper over the site, as we understand it, has resulted in low levels of PFAS being found. Consequently, we need to do further testing to find out the extent of where PFAS is on the site so that we can properly understand it and properly prepare a remediation action plan. I'm instructed that all of this testing, the result, et cetera, and the RAP can be prepared by 21 February, therefore we'd be seeking to vacate Friday and then seek a further date in March to finalise the hearing of this matter." (Tcpt, 13 December 2019, p 1(16-37))
Mr Merlino was solicitor for the Applicant. Referring to PFAS as a new contaminant substance is slightly misleading in that PFAS had been known for a considerable time - what was new in this particular circumstance was that the Applicant was possibly unaware that the paper material had been treated with PFAS.

What was the significance of the finding of PFAS?

PFAS is a term collectively applied to a group of manufactured chemicals - per-and poly-fluoroalkyl substances. None of these substances occur naturally. The first PFASs were manufactured in the USA in the 1940s. The number of PFAS has grown substantially, with estimates of at least 6000 different compounds having been synthesised, of which thousands have been, or continue to be, used in a range of products. Applications include the manufacture of non-stick cookware, stain protecting products, food packaging and some firefighting foams.
The range of uses indicates why the invention of PFAS has been regarded as a boon, but there has also been a downside. PFAS are very stable, and resistant to physical, chemical and biological degradation. Chemical analyses have revealed that PFAS are now probably ubiquitous throughout the global environment and can be detected in a very wide range of organisms including humans.
These characteristics are similar to those of a number of other contaminants that had given rise to environmental and health issues. Governments internationally and within Australia have been giving considerable attention to the detection and management of PFAS in the environment.
In Australia, coordination of governments' efforts are under the aegis of the National Chemicals Working Group of the Heads of EPAs Australia and New Zealand, which is responsible for the PFAS National Environmental Management Plan, the current version 2.0 was issued in January 2020 (NEMP) (Exhibit 23, Tab 7). This has been endorsed by the New South Wales government.
The NEMP contains a succinct introduction to PFAS: "1.2.1 Chemical structure and resulting environmental behaviour The distinguishing characteristic of PFAS compounds is a chain of carbon atoms bonded to fluorine atoms. Some PFAS compounds, including PFOS, PFOA and PFHxS, have a hydrophilic functional group at the end of the chain. The chemical structure of PFAS, including variations in chemical structure between different types of PFAS, is an important consideration for understanding the behaviour of PFAS in the environment. The high solubility of PFAS in water means that PFAS may readily leach from soil to surface water and groundwater, where they can move long distances to enter creeks, rivers and lakes and become part of the food chain, being transferred from organism to organism. Research into the effects of PFAS on organisms, such as potential multigenerational effects on aquatic wildlife, is ongoing. Work is also underway to understand and predict the behaviour of different PFAS in the environment. Sections 8.3 and 8.4 provide an overview of selected PFAS pathways in the environment. 1.2.2 Use and resulting contamination In Australia, PFAS have been used for a long time in a wide range of consumer products and industrial applications, including certain firefighting foams. There are now PFAS-contaminated sites around Australia resulting from these various uses. Over time, the chemicals have worked their way across and through the soil to contaminate surface and ground water, and have migrated into adjoining land areas. PFAS are also present in waste streams, including at landfills and wastewater treatment facilities, and more broadly in the environment. The NEMP uses terms including PFAS contamination and PFAS-contaminated when referring to environmental media in which detectable levels of PFAS are present. This reflects the fact that PFAS are synthetic organic compounds, for which there is no natural background level. The presence of PFAS in environmental media does not necessarily constitute an unacceptable human health or environmental risk. Risk depends on a range of factors including PFAS compounds present, PFAS leachability and concentration, degree of exposure, types of receptors exposed, land use, environmental values present, level of environmental protection, potential for bioaccumulation, and environmental media in which the contamination occurs. Section 9 provides further information on the assessment of PFAS contamination."
To the extent that the public is aware of PFAS, it is most likely in relation to the use, over many years, of PFAS in firefighting foams, particularly at airfields, which has caused extensive contamination, including of groundwater. This has given rise to serious concerns amongst local populations about potential risks to human health. The Shoalhaven LGA contains military facilities where PFAS have been used and the consequent PFAS contamination issues are now being addressed as a national priority (maps in Exhibit 23, Tab 11).
It is important to emphasise that while PFAS has been detected on the subject site, there is no suggestion whatsoever that firefighting foams have been used in the locality. The source of the PFAS on the site was a fire retardant applied to paper; the amounts present on the site are significant and require attention but the quantities are relevantly small. The paper waste was applied for soil improvement; there is no information as to its efficacy for this purpose.
Possible involvement of PFAS in a large number of human medical conditions has been suggested, but as yet the evidence is not conclusive. Animal studies suggest that some PFAS may promote certain cancers, but it is not clear whether these studies can be extrapolated to humans.
The response of health and environmental regulatory agencies globally has been to adopt a precautionary approach, to minimise human exposure to PFAS by setting guidance values for tolerable daily inputs, regulating use and release of PFAS and setting requirements for remediation of existing contamination.
The identification of PFAS in the paper mill product on the site made it necessary to conduct further investigations and make proposals to remediate the contamination.
The outcome of the new investigations were reported in "Detailed PFAS Assessment" (DPA) prepared by Construction Sciences which is behind Tab 11 in Exhibit O.
The DPA shows that paper waste was much more extensively distributed across the site than had been observed during the site inspection conducted at the start of the hearing. In addition to direct observations of material on the surface, a large number of samples of soil, sediment and ground and surface water, were taken and analysed for the presence of PFAS (see section 10 of Exhibit O, Tab 11). The sampling included excavation of 57 test pits, extraction of 6 shallow bore holes and drilling and installation of 4 ground water monitoring wells.
Although the original SEPP 55 Phase 1 investigation had made no record of the paper waste, the DPA revealed surface deposits of the waste material at numerous locations. These were readily visible and are illustrated in a series of images in the DPA (Photos 6.1-6.20). Photos 6.5 and 6.20 included below, illustrate the size and visibility of some of the surface deposits.
It is not known from the Phase 1 report whether these deposits were not observed by the original investigator, or, if observed, were not considered contaminants, and that there was no awareness that the paper material had been treated with fire retardant chemicals. The site has also been visited by experts investigating other aspects of the site - none of whom mentioned the presence of the paper material in their reports.
PFAS was identified in many of the soil samples. The distribution of PFAS, as revealed by the DPA is shown in the map:
The DPA included re-examination of a series of historic aerial photographs. Historic aerial photographs had been included in several earlier reports to illustrate the development of the golf course, and the nature of the surrounding vegetation, but signs of the application of paper waste had not been the subject of comment. The photographs analysed for the DPA clearly show an area with numerous stockpiles of the material in an image from 1997 (image 5.1.8 in the DPA). Subsequent images show that the stockpiles had been spread over other parts of the site, into areas now known to be the subject of PFAS contamination. Figure 5.1.8 The diagonal line crossing Lot 7 from the north west near the site entrance from Worrigee Road, impinging on the edge of the stockpile area and entering Currambene State Forest at the south-east corner of the site marks the position of a major water supply pipeline.
An image from 2006 shows what appears to be the paper pulp on either side of the access track running diagonally across a portion of the site.
As an outcome of the detailed assessment a conceptual model of the site was developed, which included a number of zones - AEC01-AEC07.
On 9 March 2020, the Applicant lodged a Notice of Motion seeking leave to rely on additional and amended material in the proceedings. On 23 March 2020, I granted leave to amend the DA and to rely on additional and amended material. The Applicant was to pay the Respondent's costs thrown away as result of the amendments on an as 'agreed or assessed' basis.

Other events of note occurring during the proceedings.

Summer 2020 was marked in eastern Australia by a series of wildfires of unprecedented extent and intensity. These included a major fire in the vicinity of the subject site. This extended into the Brundee Swamp Nature Reserve and the Currambene State Forest. The fire extended to the edge of the subject site but not into it. A portfolio of images of the extent of burning close to the edge of the site was prepared by the Applicant's ecology expert, Mr Berrigan (Exhibit M, Tab 7).
The fire event was followed by drought breaking rains which resulted in localised flooding. A further heavy rain event and flooding occurred in August 2020. As the consequences of flooding had been discussed during the proceedings, particularly in regard to provision of evacuation routes, and with respect to possible implications for management of the containment cell on the site, I inquired of the parties whether there was information on the extent of flooding during this event. The Applicant submitted a report (Exhibit W), prepared by Mr Philpott which included images taken during the August event.

The application

Following the amendments made during the course of the proceedings, the DA in the final form before the Court, taken from par 1 of the Further Amended Statement of Facts and Contentions (FASOFAC) (Exhibit 26) was: "The Proposal 1. Development Application No. SF10570 seeks consent for the following works, in stages: (a) Demolition of an existing shed (on proposed lots 205/206 as per plan by APS 26311-102-104 Rev P5 dated 04/03/2020) and clubhouse (shown as office and amenities block) to be demolished during stage 3 works (plan APS 26311-101 & 108 Rev P5 04/03/2020); (b) Filling over approximately 15.6ha to raise the land above the 1:100 Average Recurrence Interval for flood; (c) Clearing of vegetation located on the portion of the site proposed to be subdivided for residential lots, establishment of APZs, and clearing of forest in order to extend and upgrade Worrigee Road; (d) Widening and re-alignment of Worrigee Road along the western boundary of the site (and dedication as public road) and construction of internal private roads, services, APZs and provision of landscaping; (e) Subdivision in 6 stages resulting in the creation of 134 Community title lots and 2 community lots (lots 1001 and 4001) and one rural lot (lot 224) with internal private roads as follows: i. Stage 1: Subdivision of Lot 6 DP1236686 to create: ● Lot 224 Rural Lot ● Lot 225 Development Lot containing lots 201-223 And provision of essential services to Lot 224 ii. Stage 2: Subdivision of Lot 7 DP123666 and Lot 225 from Stage 1 to create: ● Lot 1001 Community Lot ● Lots 1002 -1012 ● Lot 1013 Residue Lot ● Lot 1014 Residue Lot ● Stevens Rd and Coney Rd ● Emergency egress via easement from Coney Rd to Aldous Place And construction of Stevens Road and Coney Road and their connection to Aldous Place iii. Stage 3: Subdivision of Lot 1013 Residue from Stage 2 to create: ● Lots 2001 -2008 ● Lot 2009 Residue Lot And upgrading of Worrigee Road to Lot 2008 and construction of temporary turning head iv. Stage 4: Subdivision of Lot 2009 Residue Lot from Stage 3 to create: ● Lots 3001-3050 ● Lot 3051 Residue Lot And upgrading of Worrigee Road from Lot 2008 to Forest Road, Forest Road to the intersection with Brundee View, and construction of Vineyard Hill and Drivers Road v. Stage 5: Subdivision of Lot 3051 Residue Lot from Stage 4 to create: ● Lot 4001 Community Lot ● Lots 4002-4043 And construction of roads proposed within the stage 5 subdivision, connecting driveways to perimeter roads within the stage 5 subdivision, and provision of emergency access from Drivers Road to Stevens Road; vi. Stage 6: Subdivision of Lot 1014 to create: ● Lots 201-223 And construction of Stallion Way. (f) Subdivision as part of Stage 4 will create a separate community title scheme within the greater community title scheme. Community Lot 4001 will include private internal roads. (g) Proposed community Lot 1001 comprises the "conservation lands" zoned E3 and E2, and is to be managed in perpetuity in accordance with the VMP (management zones as identified in the VMP figures 3 and 4) and the community management statement by the community association. That part of proposed Lot 224 identified in the 'management zone' is to be managed in accordance with the VMP (figures 3 and 5) by the land owner. (h) The development application includes the establishment and enhancement of frog habitat (including construction of offset ponds within community lot 1001). Post development, the community corporation of Lot 1001 will have the responsibility of implementing and maintaining in perpetuity the Green and Golden Bell Frog Management Plan and Vegetation Management plan (relating to the regeneration of the EEC). (i) Remediation of contaminated land including via stabilisation and encapsulation … (APZ = Asset Protection Zone, VMP = Vegetation Management Plan)

The site and its history

The site has had a long history of use since European colonisation and would also have been utilised prior to that by the First Nations people inhabiting the area.
The Shoalhaven region has a long history of agricultural development since European colonisation. The Phase 1 contamination report (Exhibit A1, Tab 16) documented the history of dairy farming in the area of the subject site, with the first farms developed in the earliest years of the 20th century. Numerous historical aerial photographs in several exhibits show the extent of paddock development, including within the area which is now Brundee Swamp Nature Reserve.
In 1994, approval was given for the development of a golf course on what is now Lot 7. Approval was given for a 27-hole course, of which 18 holes were developed. The activity at the golf course was not associated with a large clubhouse, nor was the course used for competitive golf, rather it was for groups of social golfers to play rounds. The history of the development of the golf course is presented in Exhibit 5. The golf course was referred to as Vineyards Links Golf Course. The proposed residential development is referred to as Vineyards Estate.
The owners of Lot 7 have the benefits of an existing consent which enables them to continue to operate it at any time, and is not extinguished by disuse, so the golf course could be reactivated (Tcpt, 22 October 2019, p 6(44 - 47)).
I enquired as to what would be possible if not all the currently proposed development proceeded. Mr Robertson responded: ROBERTSON: That's an interesting question. If we have a consent for the whole of the land and we activate that consent then it becomes inconsistent with the earlier consent and must, according to the principles of statutory interpretation, override it, but some courts prefer to tidy these things up by imposing a condition requiring surrender. When I say some courts, it's not necessarily courts but decision makers. It would really depend on whether we I mean we could get a consent and not activate it. That happens frequently for economic reasons and in which case we could always revert to the golf course consent and reopen the golf course. At the moment, as you saw on the site, the area is maintained to the extent that it's cut or the fairways are cut. I don't think the tees are maintained as tees but it probably wouldn't take much effort for there to be golfing resurgence on the site, but that maintenance work which is currently suppressing the vegetation or the recovery of the swamp vegetation would, under our management plans of course cease and one would then fairly rapidly see the extent of recovery…" (Tcpt, 22 October 2019, p 7(3-19))
Draft condition of consent 8 provides for surrender of Development Consent No. 94/118 - the consent for the golf course prior to the issue of the subdivision certificate for Stage 2 of the present proposal.
The regrowth of vegetation on parts of the site, and on the Brundee Swamp Nature Reserve, is testimony to the relative resilience of the local native plant communities. However, the regeneration is still ongoing. It is difficult to reconstruct the natural extent of the original communities, especially as some communities respond to very small differences in topography and drainage. The aerial photographs allowed canopy to be distinguished but do not allow recognition of understorey species, nor provide any details of communities. Nevertheless, the native vegetation stands are functional ecological communities and are more than just canopy, and they provide comfort that what is proposed for revegetation and ongoing management, according to the provisions of the proposed Vegetation Management Plan, has good prospects of success.
Lot 6 contains a dwelling house, agricultural buildings, trotting track and farmland. Lot 7 contains a former golf course with associated facilities building, ponds, a dwelling and sheds.
Although use of the golf course on Lot 7 ceased some years ago, the greens and fairways are still clearly visible, and are heavily grazed by a large number of kangaroos, as were seen on both site inspections.
Both Lots 6 and 7 include exotic pasture with remnant trees, numerous water bodies and areas of native vegetation, including at least three Endangered Ecological Communities (EECs) which are listed on Schedule 2 Part 2 of the Biodiversity Conservation Act 2016 - relevantly these listings of the communities were transferred over from the schedules of the Threatened Species Conservation Act 1995 which was the relevant legislation at the time the DA was originally submitted and which still applies to the assessment required in this matter.
Wetlands occur within the site associated with the Brundee Swamp floodplain and the Rotten Creek corridor that traverses the site before entering the Brundee Swamp Nature Reserve. There are two arms to Rotten Creek which join to form the single main channel flowing into the Nature Reserve. The southern arm of the creek drains from a large area of forest (Currambene State Forest), under Worrigee Road in the vicinity of point W1 shown on Exhibit E. The north-western arm has a catchment which includes developed and developing suburbs in East Nowra and Worrigee, and the experts were in agreement that the water flowing in this arm of the creek was likely to be of lower quality, bringing nutrients and contaminants into the site.
The NSW Biodiversity Values Map identifies the riparian area associated with Rotten Creek as land with High Biodiversity Values as defined in the Biodiversity Conservation Regulation 2017 (BC Regulation) - cl 7.3(3)(e).
The site contains environmentally sensitive land subject to the provisions of cl 3.3 of the Shoalhaven Local Environmental Plan 2014 (SLEP 2014) (cl 3.3(2)(h) and (ja)). Exempt and complying development is excluded from environmentally sensitive areas.
The land contains biodiversity significant vegetation (terrestrial biodiversity layer) subject to cl 7.5 of SLEP 2014. (Note that the map layer under SLEP 2014 is identified on the SCC GIS, and is not the same map as that referred to in the BC Regulation although in this instance they would cover very similar areas.)
The site is within a broader area identified as being occupied by Crookhaven floodplain GGBF key population. Wetlands adjacent to the site have been monitored for a number of years as part of the 'Save our Species' (SoS) project for GGBF. At the time the FASOFAC (Exhibit 26) was prepared, it was indicated (par 16) that the NSW Department of Planning, Industry and Development considered the wetlands on the subject site were likely to be important for GGBF occupancy - despite changes to organisational identity, no indications were provided that this is not still the official position.
The site is part of the floodplain associated with the Crookhaven River estuary which, in turn, is part of the larger Shoalhaven River Delta; since 1822 the construction of Berrys Canal linking the Shoalhaven River to the Crookhaven River has meant that the flow of the Shoalhaven now normally enters the ocean through Crookhaven Heads, and the Crookhaven floodplain experiences the impact of major floods from the Shoalhaven (see R C Carvahlo & C D Woodroffe, "Evolution from estuary to delta: Alluvial plain morphology and sedimentary characteristics of the Shoalhaven River mouth, southeastern Australia" (2020) 242 Estuarine, Coastal and Shelf Science 106857).

Planning framework

The applicable local environmental plan is SLEP 2014, cl 2.6 of which requires development consent for subdivision. Four zones are currently applicable to the subject site.
The proposed residential development component of the proposal will occur in Zone R2 Low Density Residential for which the Land Use Table provides: 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide an environment primarily for detached housing and to ensure that other development is compatible with that environment. 2 Permitted without consent Home occupations 3 Permitted with consent Bed and breakfast accommodation; Boarding houses; Boat launching ramps; Boat sheds; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Exhibition homes; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Jetties; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Respite day care centres; Roads; Semi-detached dwellings; Sewerage systems; Tank-based aquaculture; Water supply systems 4 Prohibited Any development not specified in item 2 or 3
The proposed conservation lot (Lot 1001) is in zones E2 Environmental Conservation and E3 Environmental Management for which the Land Use Table provides: Zone E2 Environmental Conservation 1 Objectives of zone • To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values. • To protect water quality and the ecological integrity of water supply catchments and other catchments and natural waterways. • To protect the scenic, ecological, educational and recreational values of wetlands, rainforests, escarpment areas and fauna habitat linkages. • To conserve and, where appropriate, restore natural vegetation in order to protect the erosion and slippage of steep slopes. 2 Permitted without consent Nil 3 Permitted with consent Bed and breakfast accommodation; Boat sheds; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Emergency services facilities; Environmental facilities; Environmental protection works; Home businesses; Oyster aquaculture; Recreation areas; Research stations; Roads; Sewerage systems; Water recreation structures; Water supply systems 4 Prohibited Business premises; Hotel or motel accommodation; Industries; Multi dwelling housing; Pond-based aquaculture; Recreation facilities (major); Residential flat buildings; Restricted premises; Retail premises; Seniors housing; Service stations; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 3 Zone E3 Environmental Management 1 Objectives of zone • To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values. • To provide for a limited range of development that does not have an adverse effect on those values. • To protect the natural and cultural features of the landscape, including coastal and foreshore areas, that contribute to scenic value and visual amenity. • To maintain the stability of coastal land forms and protect the water quality and ecological values of estuaries and coastal streams. 2 Permitted without consent Home occupations 3 Permitted with consent Animal boarding or training establishments; Boat building and repair facilities; Boat sheds; Building identification signs; Business identification signs; Camping grounds; Cellar door premises; Charter and tourism boating facilities; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Environmental facilities; Environmental protection works; Extensive agriculture; Forestry; Group homes; Helipads; Home-based child care; Home businesses; Home industries; Information and educational facilities; Kiosks; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Research stations; Roads; Roadside stalls; Sewerage systems; Tank-based aquaculture; Tourist and visitor accommodation; Water recreation structures; Water supply systems 4 Prohibited Hotel or motel accommodation; Industries; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Serviced apartments; Warehouse or distribution centres; Any other development not specified in item 2 or 3
A large part of the existing Lot 6 is within zone RU2 for which the Land Use Table provides: Zone RU2 Rural Landscape 1 Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. 2 Permitted without consent Extensive agriculture; Forestry; Home occupations 3 Permitted with consent Agriculture; Air transport facilities; Airstrips; Animal boarding or training establishments; Aquaculture; Artisan food and drink industries; Boat building and repair facilities; Boat sheds; Building identification signs; Business identification signs; Camping grounds; Caravan parks; Cellar door premises; Cemeteries; Charter and tourism boating facilities; Community facilities; Crematoria; Depots; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Environmental facilities; Environmental protection works; Extractive industries; Farm buildings; Flood mitigation works; Food and drink premises; Freight transport facilities; Funeral homes; Group homes; Hazardous industries; Helipads; Home-based child care; Home businesses; Home industries; Information and education facilities; Marinas; Markets; Mooring pens; Moorings; Offensive industries; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Roads; Roadside stalls; Rural industries; Tourist and visitor accommodation; Veterinary hospitals; Water recreation structures; Water supply systems 4 Prohibited Hotel or motel accommodation; Pubs; Serviced apartments; Any other development not specified in item 2 or 3
A separate development application, SF10714, has been lodged, and by agreement between the parties is in abeyance. SF10714, when and if approved, will permit a boundary adjustment north of the subject site, after which the subject site would also include land zoned R5 - Large Lot Residential for which the Land Use Table provides: Zone R5 Large Lot Residential 1 Objectives of zone • To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality. • To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future. • To ensure that development in the area does not unreasonably increase the demand for public services or public facilities. • To minimise conflict between land uses within this zone and land uses within adjoining zones. 2 Permitted without consent Home occupations 3 Permitted with consent Bed and breakfast accommodation; Building identification signs; Business identification signs; Community facilities; Dual occupancies (attached); Dwelling houses; Emergency services facilities; Environmental facilities; Environmental protection works; Exhibition homes; Extensive agriculture; Group homes (transitional); Home-based child care; Home businesses; Home industries; Horticulture; Neighbourhood shops; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Roads; Sewerage systems; Tank-based aquaculture; Water supply systems 4 Prohibited Any development not specified in item 2 or 3
Approval of SF10714 does not form part of these proceedings. However, the proposal in SF10570 was dependent on SF10714 being approved and proceeding prior to the commencement of the subdivision.
The question of how subdivision would be achieved was addressed in the joint report of the parties' planning experts (Mr Philpott for the Applicant, Mrs Downing for the Respondent - Exhibit 6). Minimum subdivision lot sizes are shown in the Lot Size Map (SLEP 2014 cl 4.1(2)). The experts disagreed as to whether the size of proposed Lot 224 met the development standard.
However, the experts agreed on a modification to the subdivision proposal to avoid the area of disagreement (Exhibit 6, pars 65-84).
The proposed modification was either to withdraw the DA for the boundary adjustment or hold it in abeyance subject to the changed sequencing they proposed. Stage 5 of the subdivision proposal could be modified to involve only a subdivision of Lot 6 DP 1236686 - illustrated in Appendix F to Exhibit 6. This would allow Lots 224A and 225A to be lawfully created. Once Lot 224A is created, a boundary adjustment between Lot 2 DP 13693 and Lot DP 1236686 (proposed Lot 224A) could be pursued. There would be options to modify sequencing of the overall subdivision so that after creation of Lot 225A further subdivision of Lot 225 could be undertaken in stages.
On Day 1 of the hearing, the Applicant agreed that the planning experts' possible modification should be adopted as it provided greater legal certainty and achieved the intended result. "ROBERTSON: The confusion arises, Commissioner, because of a land swap that was negotiated with the neighbour to obtain the emergency access road which has included the R5 area into the development proposal and that was to be achieved by the boundary adjustment at or prior to stage 1 of the subdivision. I have instructions now to say that we are prepared to accept what the planners have described in the joint planning report as the second option which is a different system of subdivision but which reaches the same result. It strikes us that it provides greater legal certainty and it's the subject of agreement by the planners that it can be appropriately done. We will make an amendment when we get a plan together, hopefully today, which reflects the agreement of the planners about the second option. We no longer are pressing the boundary adjustment as a predicate to the grant of this consent or to the implementation of this consent, but it will achieve the same result and so sheet 11 reflects accurately what is proposed. Just the methodology for reaching that will be slightly different. STAUNTON: Yes, so that boundary adjustment that was going to take place before anything happened will now take place after stage 5. ROBERTSON: Yes. STAUNTON: I should say not before stage 5. ROBERTSON: Yes. There will still be a boundary adjustment to achieve that. Because we have, the underlying difficulty we have of course is a third party was involved in swapping some land and we had a legal agreement with that third party and that enables us to get the emergency access road. That was a critical step in meeting our fire requirements and council correctly had insisted on it and we solved that problem by disagreement. COMMISSIONER: The approval of that third party is in the owners' consent. ROBERTSON: It's in the application. Yes, we have owners' consent. Sorry, I thought I'd explain that now so you didn't have to deal with the subdivision issues, thank you." (Tcpt, 22 October 2019, pp 10(28)-11(12)) "STAUNTON: Then the matter that was in issue which appears to no longer be in issue is the minimum lot size standards which start on p 33 of 171 where there's a reference to 4.1 and then on p 34 of 171 4.1AA and then on 36 of 171 is the convoluted provision which is the subject of most of that planning report, Commissioner, which is 4.1E. The issue arose in relation to 4.1E(3)(c)(i) and also in relation to subs (7)(b) but we're anticipating that will be resolved. ROBERTSON: Commissioner, it's probably unnecessary for you to crack your way through what my friend correctly describes as convoluted, but can I just state the effect of it, and because these clauses were inserted for this subdivision, they came into the plan, the instrument I think at the time of the rezoning that effectively it was to encourage us to manage the part of the land not committed for urban development as a whole and so required, if you like, a notional amalgamation of the E land and RU2 land to enable us to achieve the lot size map requirements for the R2 land. It has the effect of overriding the lot size map for all land other than the R2 land. It encourages, if you like, a holistic development rather than a thing of threads and patches or partial development and effectively forces the development of this land into a subdivision framework that caters for the whole of the land rather than just for a portion of it. It has two purposes it seems to us. It relieves us from complying with lot size provisions so long as we amalgamate all the non urban land and it forces us to develop it if you like once and for all, or to subdivide it once and for all and enables us consequently not to be bound by a minimum sizes except in the urban area. Do you agree with that? STAUNTON: I do, yes. Then on p 68 of 171 of ROBERTSON: Sorry, I should have just mentioned at 4.1G I think also came into effect at the time and applies specifically to I think the subject, part of the subject land. There are, you'll find occasional provisions that relate to that 4.1G relates to the boundary adjustment land. There was a specific clause authorising the boundary adjustment. This had been the subject of discussion with counsel prior to the rezoning. STAUNTON: You picked that up, Commissioner, in subcl (2), the clause applies to and then it refers to 15 Aldous Place, 23A Aldous Place and 369 Worrigee Road. ROBERTSON: We can do a boundary adjustment so long as we didn't produce anymore building lots than we were allowed. That introduced flexibility and enabled us to provide a better ecological outcome. (Tcpt, 22 October 2019, pp 14(12)-15(2))
As the possible modification is adopted, no question of requiring to seek modification of a minimum development standard arises. All the proposed lots meet the minimum lot size requirement for the applicable zone. What is proposed within each zone is permissible with consent.
SLEP 2014 is in the standard template form, and includes in Pt 7 additional provisions dealing with environmental issues which have been drafted to address the specific circumstances of the LGA. STAUNTON: Commissioner, the additional provisions in pt 7 commence on p 68 of 171. First of all is 7.1 which is acid sulphate soil where there was originally a contention raised by council which there's an agreement now as to how that's to be addressed and I will take you to that in due course. There's a clause that deals with earthworks in cl 7.2 and there was some concern raised with respect to filling and there's an agreement with respect to that matter. Then the flood planning map that I took you to is the subject of cl 7.3 flood planning and there's a residual issue with respect to that matter as to whether or not there should be a restriction as to user on title of residential lots that have part high hazard flooding. Riparian land and water courses is dealt with at 7.6 and you'll see that that clause sets out some objectives and then it tells you that it applies to the land identified as riparian land on the riparian land and water courses map in relation to the category 1, category 2 or category 3 water courses identified on the map and all land that is within 50 metres from the top of bank of each water course on land identified as category 1, 2 or 3 on that map and then there's some matters that the consent authority has to consider which are in 7.6(3). Then in 7.6(4) there's some matters that the consent authority must be satisfied with respect to and you'd be familiar with those I think from that case of Statewide v Blacktown City Council before consent can be granted. I think that's all of the relevant provisions that I need to take you to in the LEP. Commissioner, the DCP is contained behind tab 61 and the matters that are relevant to matters in issue, if you can go to up in the top there's stamped folio numbers and there's a number which is 465. This is part of chapter G9 which deals with development on flood prone land. On p 4 you've got five controls, 5.1 general or specific objectives R2 and at (iii) this is reference in the contentions "Ensure development does...the natural environment". Then over the page on p 5 under the performance criteria you can see P1 and the first three bullet points are referenced in the contentions." (Tcpt, 22 October 2019, p 15(4-34))
In describing the site, I mentioned that the site contains land mapped under cl 7.5 (Terrestrial biodiversity) and cl 7.6 (Riparian land and watercourses) and the consequences of the provision of both clauses must be addressed. 7.5 Terrestrial biodiversity (1) The objective of this clause is to maintain terrestrial biodiversity, by - (a) protecting native fauna and flora, (b) protecting the ecological processes necessary for their continued existence, and (c) encouraging the conservation and recovery of native fauna and flora and their habitats. (2) This clause applies to land - (a) identified as "Biodiversity - habitat corridor" or "Biodiversity - significant vegetation" on the Terrestrial Biodiversity Map, and (b) situated within 40m of the bank (measured horizontally from the top of the bank) of a natural waterbody. (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider - (a) whether the development is likely to have - (i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and (ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and (iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (iv) any adverse impact on the habitat elements providing connectivity on the land, and (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that - (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact. (5) For the purpose of this clause - bank means the limit of the bed of a natural waterbody. bed, of a natural waterbody, means the whole of the soil of the channel in which the waterbody flows, including the portion that is alternatively covered and left bare with an increase or diminution in the supply of water and that is adequate to contain the waterbody at its average or mean stage without reference to extraordinary freshets in the time of flood or to extreme droughts. 7.6 Riparian land and watercourses (1) The objective of this clause is to protect and maintain the following - (a) water quality within watercourses, (b) the stability of the bed and banks of watercourses, (c) aquatic and riparian habitats, (d) ecological processes within watercourses and riparian areas. (2) This clause applies to all of the following - (a) land identified as "Riparian Land" on the Riparian Lands and Watercourses Map, (b) land identified as "Watercourse Category 1", "Watercourse Category 2" or "Watercourse Category 3" on that map, (c) all land that is within 50 metres of the top of the bank of each watercourse on land identified as "Watercourse Category 1", "Watercourse Category 2" or "Watercourse Category 3" on that map. (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider - (a) whether or not the development is likely to have any adverse impact on the following - (i) the water quality and flows within the watercourse, (ii) aquatic and riparian species, habitats and ecosystems of the watercourse, (iii) the stability of the bed and banks of the watercourse, (iv) the free passage of fish and other aquatic organisms within or along the watercourse, (v) any future rehabilitation of the watercourse and its riparian areas, and (b) whether or not the development is likely to increase water extraction from the watercourse, and (c) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that - (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact. (5) For the purpose of this clause - bank means the limit of the bed of a watercourse. bed, of a watercourse, means the whole of the soil of the channel in which the watercourse flows, including the portion that is alternatively covered and left bare with an increase or diminution in the supply of water and that is adequate to contain the watercourse at its average or mean stage without reference to extraordinary freshets in the time of flood or to extreme droughts.
Both cl 7.5(4) and cl 7.6(4) require that I be satisfied (acting as consent authority standing in the shoes of Council) that they have been met in order to have jurisdiction.
The DA is for integrated development and requires a Bushfire Safety Authority from the Rural Fire Service (RFS) under s 100B of the Rural Fires Act 1997, and a Control Activity Approval from the Department of Primary Industries (NSW DPI) - Water under s 91 of the Water Management Act 2000.
On 20 March 2017, the Respondent submitted the Development Application for Comment to the RFS, Department of Primary Industries - Water, Department of Primary Industries - Fisheries, Endeavour Energy, the Office of Water, the Office of Environment and Heritage and Shoalhaven Water.
In the long interval between the lodging of the initial DA and the end of the hearing, a number of changes to legislation occurred.
At the time, the DA was submitted Planning for Bush Fire Protection 2006 (PFP 2006) set down the requirements which have to be met in order to obtain a s100B authority. PBP 2006 was superseded by PFP 2019. Application of PFP 2019 is mandated by cl 272 of the Environmental Planning and Assessment Regulation 2000. 272 Planning for Bush Fire Protection For the purposes of section 4.14(1)(a) of the Act, the version of the document entitled Planning for Bush Fire Protection with ISBN 978 0 646 99126 9 and dated November 2019 is prescribed.
However, a transitional provision is provided in cl 273B: 273B Transitional provision - Planning for Bush Fire Protection An amendment made to clause 272 or 273 by the Environmental Planning and Assessment Amendment (Planning for Bush Fire Protection) Regulation 2020 does not apply to a development application made (but not determined) before 1 March 2020. This means that PFP 2006 is the relevant document applicable in this matter.
Insofar as there are differences between PFP 2006 and PFP 2019, they would not appear to make a material difference to the requirements to be applied in this particular case.
The Threatened Species Conservation Act was repealed and replaced by the Biodiversity Conservation Act. The Biodiversity Conservation Act commenced on 25 August 2017, which was after 8 March 2017, the date when the DA was submitted. The Biodiversity Conservation (Savings and Transitional) Regulation 2017 (Transitional Regulation) therefore applies to the DA. I discussed the application of the Transitional Regulation in Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397 at [46] to [58]. The parties, after some discussion, agreed that this interpretation was applicable in the present matter.
Clause 27(1) of the Transitional Regulation includes the following definition pending or interim planning application means any of the following - (a) an application for planning approval (or for the modification of a planning approval) made before the commencement of the new Act but not finally determined immediately before that commencement, (b) an application for planning approval (or for the modification of a planning approval) made within 18 months after the commencement of the new Act if an environmental impact statement is to be submitted in connection with the application and the Secretary of the Department of Planning and Environment issued, before the commencement of the new Act, environmental assessment requirements for the preparation of the statement, (c) an application for planning approval (or for the modification of a planning approval) made within 12 months after the commencement of the new Act if a species impact statement is to be submitted in connection with the application and the Environment Agency Head issued, before the commencement of the new Act, requirements for the preparation of the statement, (d) an application for planning approval (or for the modification of a planning approval) made after the commencement of the new Act if an environmental impact statement is to be submitted in connection with the application and the Secretary of the Department of Planning and Environment determines in writing that the proponent had undertaken substantial environmental assessment in connection with the statement before the commencement of the new Act (but only if the application is made within 18 months after that determination), (e) except in the case of State significant development - an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (or for the modification of such a development consent) made within 6 months after the commencement of the new Act (but only if any species impact statement that is to be submitted in connection with the application is submitted within 12 months after the commencement of the new Act), (f) in the case of development (except State significant development) within a Western Sydney interim designated area under subclause (3) - an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (or for the modification of such a development consent) made on or before 24 November 2019 (but only if any species impact statement that is to be submitted in connection with the application is submitted on or before 24 May 2020), (f1) in the case of development (except State significant development) within an expired interim designated area under subclause (3) - an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (or for the modification of such a development consent) made on or before 24 November 2018 (but only if any species impact statement that is to be submitted in connection with the application is submitted on or before 24 May 2019), (g) in the case of development for the purposes of mining - an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (or for the modification of such a development consent) made within 2 years after the commencement of the new Act if the Secretary of the Department of Planning and Environment determines in writing (within 3 months after the commencement of the new Act) that the proponent had submitted before that commencement the conceptual project development plan for the mining project that is required by departmental policy before an application for development consent is made. former planning provisions means the provisions of the Environmental Planning and Assessment Act 1979 that would be in force if that Act had not been amended by the new Act.
Clause 28 of the Transitional Regulation states: 28 Former planning provisions continue to apply to pending or interim planning applications (1) The former planning provisions continue to apply (and Part 7 of the new Act does not apply) to the determination of a pending or interim planning application. (2) However, Part 7 of the new Act applies to the determination of a pending or interim planning application referred to in paragraph (b), (c) or (d) of the definition of pending or interim planning application in clause 27 (1) if the applicant or proponent and the planning approval body for the application agree in writing that Part 7 of the new Act is to apply to the determination of the application instead of the former planning provisions.
For purposes of biodiversity assessment, the DA is a pending or interim planning application. Subclause 28(2) does not apply and the relevant former planning provisions are those in the Environmental Planning and Assessment Act 1979 (EPA Act) as of 24 August 2017 (ie the EPA Act before the 2018 amendments), so that the assessment of significant effects requires application of the then s 5A of the EPA Act (the so called 7-part test). Section 5A of the EPA Act reads: 5A Significant effect on threatened species, populations or ecological communities, or their habitats (1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) each of the factors listed in subsection (2), (b) any assessment guidelines. (2) The following factors must be taken into account in making a determination under this section: (a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction, (b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction, (c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed: (i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or (ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction, (d) in relation to the habitat of a threatened species, population or ecological community: (i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and (ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality, (e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly), (f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan, (g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process. (3) In this section: assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994. key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 1994.
In the hierarchy of planning instruments below SLEP 2014 is the Development Control Plan (DCP) - Shoalhaven Development Control Plan 2014, which provides fine level detail for the operation of SLEP 2014. The DCP will have much work to do, if the current proposal is approved, when individual lots are developed.
At the subdivision stage, there are apparent contradictions between provisions of different parts of the DCP in regard to water and runoff management. The proposed development will be sewered, but how surface water is managed was a matter of debate between the parties, particularly in regard to the adoption of Water Sensitive Urban Design (WSUD) principles, with particular emphasis on stormwater capture and treatment.
This was first raised in the hearing on day one during Mr Staunton's opening when he was taking the Court through the relevant planning documents including the DCP (Exhibit 2, Tab 61). "STAUNTON: Commissioner, just returning then to folio 509. I don't know whether you need to turn your folder upside to read yours. There's a table, p 28. There is a table that goes across the top and then underneath it there's table 3, pt 2, large residential development. You would have seen some of the evidence that there was this issue about whether or not there should be kerb and gutter and you'll see the table there says allotment size 2000 square metres layback kerb and gutter and then when you get to 4000 square metres grass table drain, concrete edge strip, grade 10% plus layback kerb and both of them provide for drainage underground. That's one of the matters that I think remains in issue. ROBERTSON: Yes, we proudly don't comply with that. STAUNTON: My friends just asked a question about the WSUD provisions and I'll just ROBERTSON: Yes, it's at 5.11 on p 38 and it requires us to comply with chapter G2 sustainable stormwater management and erosion control and chapter G2 starts at p 440. You will see that we are required for large scale development on p 444 to do a number of things, all of which would involve us not complying with the generic subdivision prescriptions to which my learned friend has just referred but indeed to minimise our impacts on post development loads and flows by providing retention, infiltration and attention to limit post development flows, which we say we do. Part of that are swales and certainly not using conventional kerb and gutter, but there's also a requirement in the performance criteria on p 13 at 445 in A 10.9 to A 10.11 requiring us to adopt the soft rather than the hard drainage measures for the site and to obey guidelines for filter media in infiltration systems or demonstrated equivalent. Which we say we do. Anyway the point is, Commissioner, it's all very well for my friend to refer to the generic provisions but there are highly specific provisions that require us to adopt the WSUD approach in designing the subdivision and we have chosen to follow those provisions and they have certain impacts downstream which are beneficial for ecological reasons which they wouldn't have if we complied with council's preferred position. It surprises us that council is preferring a generic provision in the DCP to a highly specific one in the interest of its road maintenance practice rather than in the interest of the environment, but as you'll see when we take you to other parts of the DCP regrettably that is also the position with their stormwater treatment prescriptions which provide that all developments in Shoalhaven must pollute the oyster growing areas. It's actually the provision, it's a requirement to meet a minimal amount of pollution to be discharged from subdivisions. It permits subdivisions to pollute. We have taken the view that we won't comply with that, we design to a stricter standard. STAUNTON: I understand they're proposing to comply with the control which is on folio 538 that relates to the Worrigee subdivision and there is a performance criteria P17 "Development of the...natural water courses" and 17.1 "A stormwater assessment...onsite stormwater detention". ROBERTSON: Yes, which we do or have. I mean we can't do that and have conventional drainage with kerb and gutter. We saw the consequence of that in the conventional subdivision of 500 square metre lots yesterday when we looked at the detention pond. The need for those massive detention ponds is made necessary because of the failure to put storage on individual sites on individual lots and also because of the failure to infiltrate stormwater rather than convey it by drainage. STAUNTON: Commissioner, there was some contention about no requirement about natural or beneficial but that's where it is in the DCP on 538, and when you have the acceptable solutions at 17.3 "Stormwater discharge designed...and nutrient loads". (Tcpt, 20 October 2019, pp 16(19)-17(31)) (The detention pond mentioned by Mr Robertson was that at Worrigee - Stop 10 in Exhibit E.)
Mr Robertson returned to this matter slightly later in the hearing when the question of NorBE - Neutral or Beneficial Effect on Water Quality - was raised. The concept of NorBE was introduced in State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 (Sydney Drinking Water SEPP). Consent authorities within the area to which the SEPP applies are obliged to consider whether a development application will have a NorBE on water quality. Consent authorities are advised how to assess whether NorBE is achieved by the Neutral or Beneficial Effect on Water Quality Assessment Guideline 2015 (NorBE guideline) published by the Sydney Catchment Authority. Included within the assessment guidelines in Appendix 1, is the Neutral or Beneficial Effect on Water Quality Assessment Tool 2015.
Shoalhaven City Council LGA is not one of the areas to which the Sydney Drinking Water SEPP applies, so the Respondent was not required to carry out the assessment and did not require the Applicant to apply the tool. Nevertheless the question of whether the proposal satisfied the NorBE was raised by Dr Wotherspoon, the Respondent's ecology expert, in joint reports, where he suggested that it did not.
Mr Robertson argued that although he was not required to demonstrate NorBE,the proposal was clearly compliant.
The joint expert report of the ecologists is Exhibit 11, and was prepared by Dr Wotherspoon for the Respondent and Mr Berrigan for the Applicant. The experts disagreed in relation to a number of contentions, including those related to hollow-bearing trees which do not involve NorBE. In relation to NorBE they disagreed particularly in relation to contention 1(c) ii - "impacts on the EECs are caused by changes to the natural hydrological regime of the site". The contentions discussed in Exhibit 11 are those that appeared in the Amended Statement of Facts and Contentions (ASOFAC- Exhibit 1) which differ slightly from those in the FASOFAC- Exhibit 26
Dr Wotherspoon suggested (Exhibit 11, p 3) "Increased urban run-off as greater peak flow and volumes at point discharges is an input factor to affect salinity for SSF EEC and thus ecological integrity."
Mr Berrigan (Exhibit 11 pp 3-5) disagreed. He made his comments on the basis of his knowledge of the ecology of the EECs likely to be affected by the development, and the predicted consequences of development on run-off volumes - concluding (at p 5) "Overall, thus, key ecological processes defining the SCF EEC of flooding, a variable water table (i.e. periodic waterlogging with periods of inundation) and presence of alluvial soils. These processes will remain within the current edaphic spectrum to which the plants and animals are adapted to, post development. It is thus not possible that local occurrence of SCF or any of the three EECs present will be placed at risk of extinction by reduction in salinity."
Contention 1(c)(iii) is that "There will be impacts that untreated effluent and stormwater runoff could have on the EECs caused by phosphorus."
Dr Wotherspoon's concern was that the swales to be constructed along the perimeter roads to address runoff had not been shown to meet NorBE standards.
It is a characteristic of many (not all) Australian ecosystems that, in a natural undisturbed state, phosphorus content is low, and that addition of biologically available phosphorus has deleterious effects.
Dr Wotherspoon presented no data on the background natural levels of phosphorus or the increased levels that he claimed will result from the development.
Dr Wotherspoon presumed the prior use of the site as a golf course would not have required large quantities of fertilisers so that previous nutrient flows were not likely to have been high. The prior fertiliser regime is not known in detail, but there is at least anecdotal evidence that the operator did apply fertiliser. Coastal swamp forests in comparison to some coastal dry sclerophyll communities do not, in my experience, have particularly low levels of nutrients. In discussing his assumption, Dr Wotherspoon implied that the Applicant was required to demonstrate NorBE.
Mr Berrigan indicated that he was not a stormwater expert (and I would interpose that, on the basis of his CV, Dr Wotherspoon has no formal qualifications in the field).
Contention 1(e) is that "An assessment of the impact that filling of the drains may have on other areas of the site has not been undertaken." Dr Wotherspoon argued that filling of the drains is expected to be by freshwater urban run-off that will have an impact on soil salinity. This will compromise the regeneration of SSF EEC.
From my understanding of the literature, very little is known about regeneration requirements of the whole range of coastal swamp forests - but a brief reduction in soil salinity (even for saltmarsh halophytes) often promotes regeneration from seed.
Mr Berrigan pointed out that the drains are artificial and postdate 1994 - when the golf course was established. Fluctuation in salinity and water level will have occurred naturally over a very long time and he sees no threat to the EECs from the restoration of natural hydrological regimes, which is what is proposed.
Contention 1(g) is that "The applicant does not consider the impact fill, within the residential areas, is likely to have on the adjoining wetland as result of changes in the soil regime and hydraulic regime." Dr Wotherspoon considers that "Preloading compression impacts on groundwater circulation".
I note that the fill experts in their joint report (Exhibit 7) did not raise issues. Mr Berrigan, from experience of major projects on the north coast, has not noticed any signs of stress to vegetation adjacent to filled areas and concluded that the effect would not have the capacity to place local occurrences of the EECs at risk of extinction.
Contention 1(i) is that "The applicant has not provided any evidentiary basis to support the claim that 100 metres is the maximum extent of edge effects". Dr Wotherspoon argues "edge effects will extend from all development areas". This is undoubtedly true, but the question is what effects are involved, what are the consequences and how far will they extend. I am not aware of a categorical statement in the Applicant's reports that 100 m is the absolute limit of impact. The impact will depend on the nature of the impacting process, the nature of the community and landscape experiencing impact, and for individual species, their response to particular impacts.
Mr Berrigan points out that the edge effects of prior development have already occurred and considers that the proposal "has limited potential to increase the order of magnitude of these edge effects". He also points out that 100 m as a buffer has been widely adopted in many circumstances.
Contention 1(j) (i) is that the remainder of the local occurrence of the SSF EEC will be exposed to threats that could cause extinction. Dr Wotherspoon identifies the threats as including: "arson fire, pollution from the urban area and domestic predators being dogs and cats. Such impacts may cause local extinction or compromised ecological function by loss of species and altered soil chemistry."
Mr Berrigan argues that the Respondent has not provided any evidentiary basis to support these claims. He disagrees that local extinction is likely, given that the EEC on Lot 1001 would be permanently protected and would be managed. He also suggests that the EEC is highly resilient as demonstrated by its regeneration since the cessation of slashing in the area.
Contention 1(j) (ii) is that: "The remainder of the local occurrence of the EEC Swamp Sclerophyll Forest will be subject to edge effects and other effects that will continue to modify its composition and limits its recovery potential (i.e. to a full EEC composition)".
Dr Wotherspoon postulates that "edge effects will include high nutrient loads, heavy metals, fertilisers, detergents, herbicides, pesticides, endocrine disruptor compounds, plastics and petroleum products in urban run-off, heat island effects and weed invasion."
Several of these effects had been suggested by Dr Wotherspoon earlier in the joint report, and there is nothing to indicate that they would be greater in SSF than elsewhere on the site. Two potential effects are raised for the first time, heat island effects - these can occur with dense urban development or be associated with major roads, but are not likely on the subject land; and, endocrine disruptor compounds (EDC).
EDC are a global concern but there is no evidence that the threat from them is greater on the subject site, or in this particular EEC, than anywhere else.
A brief introduction to endocrine disruptors is provided by the US National Institute of Environmental Health Sciences website. [1] EDCs include a large number of chemicals, natural and man-made, which may mimic or interfere with the endocrine system (both in humans and other species). EDCs are found naturally and in a great range of products. Some EDCs break down slowly, which may make them potentially hazardous over time. EDCs include naturally occurring phytoestrogens, dioxins, phthalates, PCBs (polychlorinated biphenyls) and PFAS.
Dr Wotherspoon is right to be concerned about EDCs, but apart from PFAS, there are no data about their occurrence on the subject site, and no evidence that they will increase as a result of the development. (The joint report predates the identification of PFAS on the site).
As a consequence of Exhibit 11 and the issues raised, a further joint conference was held (Exhibit 16), with the addition of Mr Sevenier and Mr Barthelmess, hydraulic engineers for the Respondent and Applicant respectively. Mr Barthelmess, in a single expert report (Exhibit D), specifically addressed points raised in Exhibit 11 by Dr Wotherspoon.
In Exhibit D are the results of running a MUSIC model. I note that MUSIC is the preferred stormwater model to determine a neutral or beneficial effect in SCA catchment areas for larger developments where the impervious area is greater or equal to 2500 sqm. (NorBE guideline, p 16, section 5.2).
The model results (Table A in Exhibit D) show no increase in urban run-off volume from development, contrary to Dr Weatherspoon's assumption. There is also no increase in peak flows.
The model also shows no increased nutrient loads downstream. The MUSIC modelling clearly demonstrates that the site, once developed, will export significantly lower nutrient loads than it does currently. Mr Barthlemess considered (Exhibit D, par 32) that the proposed residential development meets both the DCP's water quality targets and NorBE.
Dr Wotherspoon maintained his concerns regarding EDCs and that there was still a concern about the possibility of bioaccumulation. The joint experts all agreed 'that all rainwater devices, pipes and tanks are to be metal not plastic so as to minimise inputs of Endocrine Disruptor Compounds in water disbursed to Lot 4001' (Exhibit 16 p 3).
The experts agreed contention 1(c) (iii) had been resolved in the light of the results presented in Exhibit D and could be addressed by conditions. Contentions 1(d) and 1(e) were also resolved.
In relation to contention 1(i) regarding buffers, Dr Wotherspoon was able to present evidence for edge effects beyond 100 m in some instances, which Mr Berrigan accepted, but he maintained his position that most edge effects will already have manifested as a result of past activities.
To support his concerns about potential impacts of changing hydrology, Dr Wotherspoon referred to the paper by R Payne, A Chalmers & J Laxton, "Understanding the characteristics of a groundwater-dependent ecosystem: Eucalyptus parramattensis Woodland at Porters Creek Wetland, NSW" (2012) 12(3) Cunninghamia: a journal of plant ecology for eastern Australia 191-211. Porters Creek Wetland is a large and diverse wetland on the Central Coast, with a different geomorphological context and different plant communities from those on the subject site. The paper supports the idea of susceptibility of groundwater-dependent wetlands to variability in groundwater conditions, a generality applicable to a wide range of wetlands worldwide. However, predicting specific effects on the subject site of variation in groundwater if, or when, it occurs would require knowledge of the specific responses of the individual species and communities at the site and extrapolation from elsewhere other than at a general level would not be easy.
Although ultimately the parties reached agreement on the issues and hydrology and run-off no longer remained contentions, the issues were of great importance to the objectors to the proposal - who were particularly concerned about impacts on the oyster leases in the Crookhaven River estuary. These concerns were raised in written submissions and orally at the two site inspections, and were also expressed by NSW Fisheries.
The subject site is upstream of Priority Oyster Aquaculture Areas (POAA) in the Crookhaven River estuary - NSW Oyster Industry Sustainable Aquaculture Strategy 2016 (OISAS).
The Respondent referred to State Environmental Planning Policy No 62 - Sustainable Aquaculture (SEPP 62) since repealed but because of a savings provision still applicable to the present DA and to OISAS in the FASOFAC (Exhibit 26, par 24). SEPP 62 was repealed by State Environmental Planning Policy (Primary Production - Rural Development) 2019 which contains a savings provision at cl 9: If a development application has been made before the commencement of this Policy in relation to land to which this Policy applies and the application has not been finally determined before that commencement, the application must be determined as if this Policy had not commenced. SEPP 62 continues to apply to the current application. OISAS was prepared as a result of concerns about existing and potential impacts on the oyster industry associated with development of the New South Wales coastline. OISAS identifies POAA in every estuary in New South Wales and sets water quality objectives.
When a consent authority is considering development applications for development which may affect a POAA, SEPP 62 requires the consent authority to: 1. give the Director-General of the NSW DPI (the relevant authority at the time OIASS was released) written notice of the DA and to take into consideration any written submissions received; 2. take into consideration the provisions of OISAS; and 3. consider any issues likely to make the development incompatible with oyster aquaculture and measures the Applicant has proposed to address these issues.
The Respondent made the necessary notification of the application to NSW Fisheries and received a submission in response. The Statement of Environmental Effects (SEE) prepared by Ecological (Exhibit A2, Tab 28) considered SEPP 62 (in Section 507, pp 69-70) and concluded that the development was compliant with the SEPP 66 requirements.
OISAS suggests as a guide that: "any development or activity within an extra catchment that is located within 10 kilometres, or activity that is located within 10 kilometres of a point where a stream enters in history of an oyster aquaculture lease is considered to represent significant risk. However, some judgement is required. an intense development at 11 kilometres is of great concern the low-impact development at 9 kilometres." (section 1.4, p 3)
No information was provided by either party about the distance between the subject site and oyster leases in the Crookhaven River estuary. However, perusal of the map of leases in the Crookhaven River estuary provided within OISAS suggest that the development is sufficiently close and has to be considered a significant risk.
The "Healthy Estuaries for Healthy Oysters Guidelines" ( NSW Department of Primary Industries 2017) section 1.3 and section 2.8 recommend that councils apply the NorBE Guideline when assessing development proposals where impacts on receiving waters including oyster leases might occur. This supports the application of WSUD principles to subdivision.
WSUD is an essential component of the current proposal, and Mr Bartlemess' evidence (Exhibit D) is that, as a result of the WSUD measures to be employed, water quality leaving the development will be no worse and may be better than the water quality in the present situation.
There may be situations where much denser urban development still requires kerbing and guttering, and where WSUD is more difficult to apply, but the present application does not demand kerbing and guttering and the WSUD structures proposed are appropriate and desirable.
The submissions on behalf of the oyster farmers pointed to the increasing number of days each year when, because of water quality issues, it has been necessary to close the oyster fishery in the Crookhaven River estuary. This has serious economic consequences for the leaseholders, and reduces the availability of oysters to the public. If the industry is to remain viable, then measures to improve water quality in the estuary are essential.
The present situation is the outcome of developments within the entire catchment over many years (a situation not unique to the Shoalhaven estuary, but repeated in all oyster farming areas on the NSW coast).
On both occasions after objectors had addressed the Court, Mr Robertson took the opportunity to respond by stressing the Applicant's commitment to WSUD and how what was proposed would represent an improvement for that part of the total catchment occupied by the proposal. Mr Robertson also at every opportunity during the hearing pointed the finger at Shoalhaven City Council, as most previous approvals had not applied WSUD (for example, Tcpt, 22 October 2019, p 26(35-40)). I note that the Respondent did not rebut Mr Robertson's assertions.
Rather late in the proceedings, the Respondent raised the Water Quality Guidelines for Oyster Aquaculture Areas - Table 4 (in NSW Department of Primary Industries, 'NSW Oyster Industry Sustainable Aquaculture Strategy', January 2016 p 21).
The guidelines for water quality are within oyster aquaculture areas, not those of water leaving a source upstream of aquaculture areas.
Water in the oyster leases is a mixture of inputs from numerous sources. The water draining from the subject site would be unlikely to meet the guidelines at all times for at least two of the parameters - pH and salinity. The pH requirement covers a range from very slightly acidic to alkaline. This is a considerable range bearing in mind that pH is a logarithmic scale. The salinity guidelines extend from full seawater to 20ppt, so covering periods of freshwater input resulting in lower, but still high, salinities. Discharges from both point and diffuse sources from the entire upstream catchment would not satisfy the salinity guidelines. What the salinity range in Table 4 represents is the range of tolerance of oysters, with 20ppt being at the lower end of acceptable outcomes of the mixing of the tidal (saline) water in the lower estuary with the discharges from the entire terrestrial catchment. When the Shoalhaven River is in full flood, and massive amounts of freshwater flows through Berrys Canal into the Crookhaven River estuary (Carvahlo & Woodroffe 2020) the resultant salinity in the oyster lease area may be below 20ppt for a period. There is nothing that can be done to prevent freshwater flows in those circumstances. Episodes of low salinity will be an inevitable consequence of the location of oyster leases in the estuary; they are likely to have an adverse impact on oysters, so that episodes of low salinity are one of the inherent risks that oyster farmers face.
Input of some of the materials from the catchment can be addressed at source, but in most instances, improvements at one single site in the catchment would be only a very small component of what is required. In the case of the subject site, the results of the Applicant's modelling indicate that the discharge waters, leaving the site will not be worse but better than at present and when mixed with imports from multiple sources, will not worsen the resultant condition on the oyster lease area.
When the matter was adjourned at the end of 23 October 2019, the parties had reached, or were apparently close to reaching, agreement on most of the contentions, except in relation to Green and Golden Bell Frogs (Litoria aurea - GGBF) and the parties were working actively on conditions. There was discussion on a timetable for final submissions. The only other matter outstanding was obtaining the results of analysis of the material in the bund, but there was no anticipation of any surprises (Tcpt, 23 October 2019, pp 144(49)-115(4)).
As has been explained, that optimism proved unfounded and substantial further time was required to investigate the contamination discovered. When the matter resumed, expert evidence was heard from the ecologists and from the contamination experts.
At the end of the hearings, the contentions remaining (FASOFAC, Exhibit 26) were:

Contention 2 Hollow bearing trees
Contention 3 Impact on the Green and Golden Bell Frog (GGBF)
Contention 11 Contamination
Contention 12 Public interest The following contentions appearing in the FASOFAC:
Contention 1 Endangered Ecological Communities
Contention 4 Flooding
Contention 5 Acid Sulfate Soils
Contention 6 Water Management
Contention 7 Fill
Contention 8 Emergency Egress
Contention 9 Roads
Contention 10 Traffic Impacts. had, at the end of the hearing, been resolved through the provision of extra information, or by agreement on acceptable conditions to be applied.

Between the filing of the FASOFAC on 26 March 2020 and the end of the hearings on 11 September 2020, as a result of discussions between the experts and after hearing the evidence, the particulars of these contentions had been reduced in number. Contention 12 (public interest) was not particularised but the matters raised by the contention are covered in the discussion of other contentions. In assessing the proposal, the consent authority (including the Court standing in the shoes of Council) is required by s 4.15 of the EPA Act to consider submissions received. To the extent that the submissions from residents and oyster farmers raise concerns not otherwise addressed in the contentions, these matters will be addressed separately.

Ecology (Contentions 2 and 3)

A number of experts prepared reports and engaged in joint conferencing. Several of the experts covered more than one topic. For the Applicant, Mr Berrigan presented evidence across a range of ecological issues and Dr Pyke discussed GGBF. Dr Wotherspoon and Mr Daly were ecology experts for the Respondent. Dr Wotherspoon discussed endangered ecological communities (EECs) and arboreal mammals/hollow bearing trees. Dr Wotherspoon was present on the site inspection and participated in the production of two joint reports (Exhibits 11 and 16) but was not required to give oral evidence. Bushfire issues were addressed by Mr Rose for the Applicant and Mr Douglas for the Respondent. They took part in the first of the site inspections when they contributed to discussions, and subsequently prepared a joint report (Exhibit 10), in which they were in agreement, and so were not required to give oral evidence. Aspects of the suggested conditions arising from the bushfire experts' recommendations have implications for ecological issues (particularly requirements for, and extent of, asset protection zones (APZs)). As Exhibit 11 canvassed issues of water quality and volume, an individual report on these issues (Exhibit D) was prepared by Mr Bartlemess, hydraulic engineer for the Applicant, and both he and Mr Sevenier, the Respondent's hydraulic engineer participated in the production of Exhibit 16.
It was common ground that the assessment of impacts of the proposal on threatened species and communities was through the 7-part test in s 5A of the EPA Act (see [85] above).
Subsection 5A(1) requires that in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, these being entities listed in the relevant schedules of the Act, 'or their habitats'; the assessment must take into account s 5A(1)(a) and (b). The habitat for threatened species is discussed in the final determinations of all listed populations and communities, but for species, a large number were listed on the schedules at the time the Act commenced and before the Scientific Committee had made any determinations. However, there is sufficient information in the general literature to inform assessment of impacts on the habitat of species for which there is not a final determination. In many assessments, habitats are only considered indirectly, but Dr Wotherspoon raised a number of issues relating to hydrology and water quality, and these are aspects of the habitat of the entities concerned.
Subsection 5A(1)(a) requires consideration of the factors in subs 5A(2) - the 7-part test - although not all parts of the test will be relevant in any particular case, as some parts apply to species and others to ecological communities. Subsection 5A(1)(b), requires that "any assessment guidelines" are taken into account.
The relevant guidelines which the assessment is required to take into account are the Threatened Species Assessment Guidelines: The assessment of significance, published by the Department of Primary Industries (February 2008) (Exhibit 29).
The interpretation and application of the guidelines generated a difference of opinion between the Respondent and the Applicant. The assessment of significance is the first stage in considering potential impacts. If there is likely to be a significant impact, further consideration is required through the preparation of a Species Impact Statement (SIS). The production of a SIS does not predetermine the outcome of the assessment process. It is an opportunity to provide more information and a more in-depth analysis of the particular circumstances of the case. As a result of the transitional period between the Threatened Species Conservation Act and the full implementation of the Biodiversity Conservation Act, the option of preparing a SIS is not available. The first question a person carrying out the assessment needs to consider is what is it that may (or may not) cause a significant impact. This requires that the focus be on the proposed development or activity.
Mr Daly's interpretation of what constituted the proposal was governed by his interpretation of the third paragraph (on p 12) of the guidelines. "Proposed measures that mitigate, improve or compensate for the action, development or activity should not be considered in determining the degree of the effect on threatened species, populations or ecological communities, unless the measure has been used successfully for that species in a similar situation." This does not preclude considering proposed mitigation measures if the measures had 'been used successfully for that species in a similar situation'.
Mr Daly's position was articulated in the following exchange with Mr Robertson. "ROBERTSON: Mr Daly, you mentioned in your discussion of your view that you considered that ameliorative measures or mitigation measures should not be taken into account in determining whether there's likely a significant impact on threatened species, didn't you? WITNESS DALY: That was under the guidelines, in the guidelines set out by the State Government under the old Act which is now the TSC Act which is ‑ now it's five. ROBERTSON: The EPA Act is still enforce‑‑ WITNESS DALY: Force, yes, that's correct. ROBERTSON: ‑‑in a notional sense in this case? WITNESS DALY: Yes. ROBERTSON: Interpreting the seven part test you have approached it on the basis that one should set aside mitigation measures or ameliorative measures and just consider the bare bones impact of the project, haven't you? WITNESS DALY: Yes, because it ‑ you'll have ‑ if you go back to the TSC Act, then you really have to think about the intent of the Act and the intent of the Act is to prohibit or to modify developments to reduce the impacts on threatened species." (Tcpt, 23 October 2019, pp 65(43)-66(16))
Mr Daly does not address the qualifier in the guidelines which would permit consideration of ameliorative measures if they had been shown to be successful elsewhere (although his general view of the ameliorative measures expressed elsewhere in his evidence suggests that he does not consider such measures to have been successful).
The guidelines are required to be considered, but they are not in themselves law in the sense of being an environmental planning instrument. What the assessor is required to do is assess the possible effects of the proposal. The proposal may include ameliorative measures. The Court has consistently taken the view that ameliorative measures included within an application are to be treated as part of the proposal. The first occasion when this was expressed was by Lloyd J in Smyth v Nambucca Shire Council (1999) 105 LGERA 65; [1999] NSWLEC 226 at [11]-[13]. "11. This view is confirmed by s 5A of the EP&A Act. The factors to be taken into account on the question of whether there is likely to be a significant effect on threatened species, populations or ecological communities, include factors which require an assessment of the impact of the proposed development and thus necessarily any associated ameliorative measures which may be part of such development. Recourse may be had to the proposed development (and its associated ameliorative measures, if any) for the purpose of paragraphs (c), (d), (e) and (g) of s 5A. It is also at least arguable that recourse may also be required to the proposed development (and its associated ameliorative measures, if any) for the purpose of paragraphs (a) and (b) of s 5A.

The Commissioner found that the proposed development in the present case included a number of specified ameliorative measures. The Commissioner did not go on to make any finding as to whether, given the proposed development and the specified ameliorative measures, there was likely to be a significant effect on threatened species, populations or ecological communities, or their habitat. As noted in paragraph 8 above, the Commissioner decided, in effect, that the answer to this question must be resolved by reference to a species impact statement. The Commissioner's task, however, was to determine for himself whether there was likely to be a significant effect by dint of the proposed development and its ameliorative measures. Only if the answer to that determination is in the affirmative does a species impact statement become necessary. 13. It seems that the Commissioner was led into error by, at least partly, the omission from s 5A of any express reference to any proposal to ameliorate the impact of a proposed development. It seems to me that the answer to this is that there is no need for there to be any express reference to ameliorative measures in that section. The terms of the section make it plain that the matters for consideration necessarily include the impact of a proposed development and any associated ameliorative measures."
Although an application might contain proposed amelioration measures which are considered in the assessment process, the mere fact that an applicant documents the proposed measures does not guarantee a tick of approval. In BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210, the application included proposals for the amelioration of the loss of Cumberland Plain Woodland (an EEC) that would have been incurred if the development was approved, but Pain J (at [86]) did not consider that reafforestation of a nearby area, which was proposed as the amelioration, would, in the circumstances of the case, be ameliorative.
However, in Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38, Biscoe J accepted (at [119]-[126]) that the proposed ameliorative measures would be practical, enforceable and effective so that approval of the development proposed with the ameliorated measures was not likely to significantly affect the EECs on the site. (There were two EECs involved, both forms of coastal plain swamp forest). Biscoe J's test that the measures be 'practical, enforceable and effective' is one that could be applied to any ameliorative measures included within proposals, not just ones involving threatened entities.
In Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 (NHVSS), Preston CJ pointed out (at [113]) "…the seven part test is not the only input into determining the question. Other relevant factors can be taken into consideration". The requirement in subs 5A(1) to take into account 'or their habitats' indicates an intention that matters additional to those directly raised in the 7-part test could be considered. In NHVSS at [114] (see also [104]), ameliorative measures are considered as being amongst factors additional to the 7-part test. The statement in the guidelines (p 2, par 5) that "Other issues not specifically addressed by the factors of assessment should be included and discussed in the broader impact assessment process, for example, in a review of environmental factors or an environmental impact statement." would appear to imply a narrowing of the scope of the assessment of significance contrary to the view of the Court.
Mr Daly's position was not held by Dr Pyke, who considered the suggested amelioration was part of the proposal. Consideration of the test of significance was required in relation to EECs and the yellow-bellied glider where again the proposal included amelioration. The ecological experts when dealing with those issues did not base their assessment on the narrow interpretation of the proposal espoused by Mr Daly in relation to GGBF.

Hollow bearing trees

The contention relates to the possible impacts of removal of hollow bearing trees, particularly adjacent to Worrigee Road and in the road reserve extension of Worrigee Road, and also within the area proposed for residential development. The hollows within hollow bearing trees may form part of the habitat requirement of species of fauna. What was of concern, in particular, were micro bats and Yellow-Bellied Gliders (YBG) (Petaurus australis). Reduction in the number of hollows, and removal of trees, creating gaps in the vegetation, could reduce the number of roosting and den sites, and in the case of YBG, expose individuals to greater risk of predation through having to undertake longer flights between den trees or resort to movements on the ground. There are a number of avian predator species in the area, but particular attention was given to Powerful Owls (Ninox strenua).
YBG is a vulnerable species listed on Sch 1 Pt 3 of the Threatened Species Conservation Act (and now Biodiversity Conservation Act). It is a gregarious, arboreal and nocturnal species. During the day, it occupies tree hollows, lined with leaves, which are shared, with members of the same colony. They have a distinctive growling call, which can be heard by humans, for up to 500 m. The call may be elicited by playing recordings of Powerful Owl calls.
Their diet includes nectar, honeydew, insects, pollen and sap from a number of Eucalyptus species, with a preference for smooth barked species. To obtain sap, a wedge or notch is bitten into the bark to provide a flow of sap.
On the site inspection, incisions into the bark of a grey gum (Eucalyptus punctata) were observed at site W1. There was no disagreement amongst the experts that the incisions were characteristic of YBG. The incisions were not fresh (i.e. they did not have sap oozing from them), but were still clearly visible but had been partially overgrown by bark regrowth, and possibly were made within the last few years.
The issues raised in the contention were the subject of a joint report between the ecologists (Mr Berrigan for the Applicant and Mr Daly for the Respondent) and by the surveyors (Mr Philpott for the Applicant and Mr Haylett for the Respondent) (Exhibit 19).
The surveyors were participants because of questions regarding the accuracy of the information about location of trees and also inconsistencies between the Applicant's Vegetation Management Plan and Hollow Bearing Tree Plan in terms of which trees required assessment by an arborist for removal or retention at the construction phase or assessment of intrusions of development into structural root zones, structural integrity of the trees, and the risk to life and property.
The surveyors reached substantial agreement, and in particular that there was a need for the Hollow Bearing Tree Plan to include a 'survey accurate' location of certain trees. The 'GPS accurate' data provided may have errors of up to 3-6 m in location. Some GPS accurate data correlated well with survey accurate data, but not in every case and there was agreement (Exhibit 19 par 2(d)) that: "obtaining survey accurate data for all hollow bearing trees that are within a distance of 10 m outside the area of proposed works will allow further refinement of the hollow bearing tree plan by more accurately determining the position of the tree".
Subsequent to the joint conference and following further survey, the surveyors held a further conference reported in Exhibit 22, in which they reached complete agreement.
However, the ecology experts remained in disagreement as summarised by Mr Robertson: "…To summarise the position, Mr Daly said there should be more surveys. Mr Berrigan said there have been surveys and, in any event, when he prepared the seven part test in the 2017 report, which is Exhibit A1, tab 13, he assumed their presence on the site, although the evidence of which he was aware was that any calling was from outside the site. He made the point that he can hear the glider calling from about half a kilometre away. It's a very distinct call. So, in surveying the site at night over the summer period, he believes he would have picked up any glider in the locality in and around the site." (Tcpt, 8 September 2020, p 152(35-43)) and expanded his observation: "The glider is a habitat specialist. It is obvious to most people because it makes horizontal decisions in feed trees and to drink the sap and it is a coloniser. It exists in colonies, usually with young and other gliders of the other mature sects and it occupies hollows in different trees. It swaps hollows. In other words, it moves from hollow tree to hollow tree but its habitat speciality requires it to have a larger hollow because it is often occupying that with members of its own group or family, so it needs trunk hollows not branch hollows. Most of the hollows with which we are concerned are branch hollows. So that the deprivation of hollow trees on the site, although that will obviously affect the possum and glider population is not so significant, largely because the hollow trees are scattered across the site and so most of them occur outside the gliding distance of the gliders and in the case of the yellow-bellied, because it's larger and requires a larger hollow and there is one hollow tree, I think, of the trees to be removed for the southern extension of Worrigee Road that meets that description. So just because there are a number of hollow trees being removed doesn't mean that there will be any impact on the habitat of the glider. After the fires, and this is set out in Mr Berrigan's report, Exhibit O, tab 6 -letter report of 5 March 2020 - we examined the extent to which the fires might've affected the habitat of the glider. In the joint evidence on 7 August 2020, I think the experts agreed that up to a third of the forest to the south were burnt, however, and this is something Mr Daly specifically checked, none of the hollow trees that Mr Berrigan relied upon in the seven part test to the south of the site to establish that there was plenty of habitat available for the glider, none of those trees were burnt to the extent that the hollow was affected. There was a ground fire to the south, not particularly intense until it got about 150 metres to the south around the creek area, I think Mr Daly's map disclosed. If you remember, there was a fire intensity map. I'm not sure whether it went into the evidence but Mr Daly or Mr Berrigan put it up on the screen and we looked at the fire intensity. The reason for that was we took ground photos after the fire which showed that although the RFS mapping had the site being burnt, in fact, it hadn't been burnt at least to the extent shown on the RFS mapping and much of the area to the south had not been burnt directly adjoining the land and further in it had been burnt but at differing intensities, not unlike a natural fire event. It just so happens that this natural fire event was accompanied by, as we know, burning of a substantial part of the State. That made it unusual as a whole fire event but fire is a natural element in this dry landscape. We don't know what the return period of the fire was but we saw the vegetation before the fire and it didn't look as if there had been a fire there for some years, to my way of thinking or from my observations. It seemed to be relatively fire free, at least in the immediate past, and there was no evidence from any of the ecologists who'd been on the site since 2016 that there had been fires in the site area and that area to the south is part of the site area that was examined. So, to the extent that there was a fire and it did include a third of the thousands of hectares of forest to the south, then it was no different to a natural fire. It was a fire of different intensity and so it wasn't like some of the fires down south which seemed to burn at maximum intensity and, to the extent that it affected any area near the land, it was a ground fire." (Tcpt, 8 September 2020, pp 152(45)-153(47))
The area referred to as "relatively fire free" by Mr Robertson is that around Rotten Creek, observed at W1 on the site inspection. Once past the initial post-fire recovery phase, it is difficult, on brief observation, to make confident statements about the time since fire, but I would concur with Mr Robertson that the vegetation looked as if it had not burnt for some time - possibly at least a decade, if not longer. I am uncertain as to what Mr Robertson intended by referring to the early 2020 fire as "no different from a natural fire" - it was a fire that was part of the extensive fires of the 2019/2020 season, but they were natural, although perhaps a portent for the future.
The ecologists differed on whether there was sufficient information available or whether more surveys were required before the impact could be assessed. Mr Berrigan had applied a 7-part test for YBG and had concluded that the impact on the population would not increase the risk of extinction.
It was known that YBG exist around the site, and that they occurred on the cemetery site (first reported by Mr Daly) and also in the extensive forest to the south of the site. Mr Berrigan had not observed YBG on the subject site, but the incisions noted near W1 are relatively recent and Mr Daly had observed YBG overhead when conducting GGBF surveys in Rotten Creek near W1 (Exhibit 19, p 12). The experts agreed that the forest to the east of the subject site associated with Brundee Swamp was only marginal YBG habitat.
The home range of YBG is between 20 and 85 ha - greater than the area of habitat on the subject site - so that any YBG utilising the subject site would need to have access to areas beyond.
The experts disagreed on the significance of presence of micro bats. There had been survey work and micro bat activity had been detected, but Mr Berrigan assumes that bats will utilise a site, but only intermittently when food resources are available but would make greater use of other forest areas. Mr Daly's position was that further surveys should be conducted.

Green and Golden Bell Frog

The GGBF experts have long and extensive experience of studying the species, and are well respected in the field. This was not a case where there was a clear difference in the relevant expertise of the experts, which was the situation in Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 (Ryan) at [162], although I acknowledge that Mr Daly has a very long history of involvement with GGBF across the Shoalhaven LGA. On many aspects of the biology and ecology of the species, they were in agreement.
GGBF is a large frog with a high public profile as a poster species for conservation. It was once more abundant, to the extent of being used in dissection classes) but in recent years, it has declined (A W White & G H Pyke, "Distribution and conservation status of the Green and Golden Bell Frog Litoria aurea in New South Wales" (1996) 30(2) Australian Zoologist 177) in New South Wales such that it was listed under the Threatened Species Conservation Act (and now the Biodiversity Conservation Act) as an endangered species. Nevertheless, some populations are known to experience 'population explosions'. In the case of the population from which individuals have been recorded at the subject site, Mr Daly observed such a reproductive event in the 2010/11 season (Tcpt, 23 October 2019, p 90(6-18)) and G Daly, "From rags to riches and back again: fluctuations in the Green and Golden Bell Frog Litoria aurea population at Nowra on the south coast of New South Wales" (2014) 37(2) Australian Zoologist 157 (Exhibit 18)). Mr Daly and Dr Pyke agreed that when such a mass breeding event occurs, juvenile frogs, after metamorphosis from the tadpole stage, dispersed in all directions from the breeding site. Mr Daly (Exhibit 18) recorded that by April 2011, juveniles had dispersed 4 km southwest and 11 km southeast of Brundee Swamp, and that a number of sites with historic records of GGBF had been recolonised.
The experts agreed (Exhibit 5) that the local population relevant to the assessment of the proposal is centred on Brundee Swamp and includes frogs on the subject site and in other nearby areas such as Worrigee Nature Reserve and the adjoining Currambene State Forest. In the joint report and in evidence, they referred to the area in which this population occurred as the 'local area' (Exhibit 5, 1A) which "includes Brundee Swamp Nature Reserve (NR), the two portions of Worrigee NR, west to the Princes Highway, south to Currambene Creek, north to Greenwell Point Road and east to about Saltwater Swamp NR. We regard Terara Swamp GGBFs as part of the Crookhaven meta-population but was not part of the local population".
The experts agreed that for the local population, the breeding area was in the Brundee Swamp Nature Reserve (to the north of the Brundee Swamp Nature Reserve is the Port Waratah Coal Services offset site, encompassing about 204 ha). This is one of three offset sites, the other two being Tomago and Ellalong Lagoon, established as offsets to ameliorate the impacts of the Port Waratah Coal Services Terminal 4 Project on the GGBF population on the development site. Terminal 4 is an export coal terminal situated adjacent to the south arm of the Hunter River in the Port of Newcastle. The proposal, which included the amelioration works, was approved by the NSW Planning Assessment Commission (PAC) 30 September 2015 (Project Approval under the then s 75J of the EPA Act).
The experts gave PowerPoint presentations illustrating the biology of GGBF (Dr Pykes' presentation became Exhibit S), in the case of Mr Daly's presentation being predominately images of the local population. The individual expert reports (Exhibit 4 - Mr Daly; Exhibit C - Dr Pyke) and the joint report (Exhibit 5) contains lengthy bibliographies. In addition to the expert reports, Exhibit 14 (A Hamer et al, "Green and Golden Bell Frog Population Study, South Nowra: Final Report", Contract No. 12.2574.2779, Australian Research Centre for Urban Ecology) and a published paper by Mr Daly (Exhibit 18) were in evidence.
The period from 2000 to 2010 had experienced reasonably wet seasons and breeding of GGBF had been recorded each year within the local population (although not on the subject site). The 2010/11 breeding season coincided with a wet season. The experts agreed that rainfall appeared to be a trigger for breeding, but longer term survival of offspring was dependent on them being sufficiently developed by the time water bodies became accessible to the introduced small fish Gambusia holbrooki, a voracious predator of tadpoles (of any species of frog) present in the water body. The characteristics of water bodies favourable to successful breeding by GGBF have been determined (Exhibit 18, p 169; and Exhibit C, in which Dr Pyke presents what is referred to as a 'recipe for GGBF breeding habitat' at pars 7-28). The breeding habitat should have open water, be generally unshaded and be free of predatory fish. Gambusia is the main concern, but carp and native fish such as eels would also predate tadpoles. Shallow open water should be warm (Dr Pyke suggests that 25oC is optimal). While shading of habitat reduces the value for potential breeding, some emergent vegetation around the edge of a water body may be beneficial. GGBF has been recorded reading in highly disturbed sites, including some of artificial origin, with ongoing disturbance, such as undergoing wetting/drying cycles. Dr Pyke (Exhibit C, p 7, par 6) considers that in these respects, GGBF is "a most unusual endangered species".
The ease of detecting GGBF varies between the sexes - males call during the breeding season, but females are silent and must be detected visually which can be difficult when they are in vegetation or sediment.
In addition to breeding sites, GGBF may also occupy refuge sites. "Refuge sites are a bit different. Refuge sites are a bit more long‑term. They're sites that the frogs use a bit away from their breeding site as a place to hang out while waiting for conditions to become suitable where they breed. These can be almost any sort of site as well. A top right‑hand photo there is at a refuge site at North Avoca, this is in someone's backyard and this is a couple of hundred metres from a breeding pond. We found Bell Frogs in this backyard virtually every time we visited. They were the same Bell Frog as we did capture, recapture and they were the same individuals. This was a refuse and as is typical of refuge sites, they're mostly girls. These are female refuge sites. The males stay at the breeding site, they don't go anywhere, or not to the same extent…" (Tcpt, 22 October 2019, p 46(23-33) - Dr Pyke)
Characteristics of observable refuge sites were agreed between the experts (Exhibit 5, A3.1) to be the relative consistent presence of females, some of which may be large, in about equal or greater numbers than males, and the absence of signs of breeding in the absence of small immature frogs. A number of possible refuge sites were in, or adjacent to, the subject site, one is on the south arm of Rotten Creek, just outside the site at location W1 visited on the site inspection. Mr Daly regards this as a particularly important refuge. When conditions are favourable, individuals return from refuge sites to the breeding sites.
Since the 2010/11 breeding event, no breeding has been detected in the subject site, and breeding success in the agreed breeding site in Brundee Swamp has been limited. Part of the reason for this may be the recent run of dry seasons, but an additional factor is suggested by Dr Pyke (Exhibit C, pp 23-25, pars 61-64). Sequences of aerial images of Brundee Swamp show that prior to the dedication of the Brundee Swamp Nature Reserve, much of the area was open; but with the removal of agricultural grazing, there has been substantial regrowth of woody vegetation (Casuarina and Melaleuca). Given that successful breeding is associated with unshaded water bodies, Dr Pyke speculates much of the swamp formerly utilised by breeding GGBF is no longer suitable. If this is the case, then changed management of the Reserve could reduce the shading of water bodies, but it would be a matter for the management authority to balance possibly competing conservation interests.
GGBFs are subject to a number of threats - predation by fish has been motioned but on land they may be predated by foxes (like Gambusia also identified as a Key Threatening Process) and birds. GGBF, like other frogs, is at risk from the pathogenic chytrid fungus. Although chytrid has been detected in the local area, there are no confirmed records within the subject site. However, there needs to be continuing vigilance to prevent introduction from elsewhere. Protocols for practices to protect against chytrid have routinely been applied to many developments and have been incorporated into the suite of management plans proposed to be applied in this case. During the proceedings, the experts updated provisions in the plans to incorporate the recent "Saving our Species Hygiene guidelines - Protocols to protect priority biodiversity areas in NSW from Phytophthora cinnamomi, myrtle rust, amphibian chytrid fungus and invasive plants" published by the NSW Department of Planning, Industry and Environment in 2020 (Exhibit T), in particular, those protocols for the cleaning of machinery to limit disease spread.
A difference between Dr Pyke and Mr Daly was in their assessment of the ability to create habitat for GGBF. "… Because some of the sites where Green and Golden Bell Frogs have been found, such as the Olympic site are essentially completely human made that suggest that it ought to be possible to create artificial breeding habitat for the frog. That doesn't mean as some engineers have chosen to believe that you can just dig a pond anywhere and it will be suitable but you can create habitat. The top right‑hand picture shows an example. It can be quite a serious undertaking with quite heavy duty machinery. This is work done by an outfit called NCIG on [Kooragang] Island where they created Bell Frog habitat which has been quite successful. The bottom left there was similarly created, that's at the Sydney Olympic site, that has also been quite successful. As Garry and I are well aware, creating Bell Frog habitat doesn't always work and there are some equally famous examples where it has totally failed so if you're building Green and Golden Bell Frog habitat you can't guarantee it will be successful. Therefore, what you should do is create as many ponds as you can and create them with a diversity of construction, diversity of shapes and sizes and so on." (Tcpt, 22 October 2019, pp 46(42)-47(7) - Dr Pyke)
Among the amelioration measures proposed is the provision of extra habitat for GGBF in Lot 1001. Both experts agreed that any of the GGBF habitat creation exercises carried out at numerous sites have not been successful, but Dr Pyke considered that some had been successful and nominated Kooragang Island and Sydney Olympic Park. Mr Daly disagreed. "ROBERTSON: Mr Daly said there were failures, failures and failures. Do you agree with that? WITNESS PYKE: No. I think there have been some notable successes and some notable failures at a broad scale. The places that have been quite successful, such as the Sydney Olympic site, are not successful 100% of the time pond by pond. In fact, the percentage of successful ponds is rather low, but that proves, as Garry has said and I have said, you can't guarantee success when you're trying to build bell frog habitat and the sensible strategy is to build a diversity of ponds and so far, well, that strategy's adopted such on Kooragang Island has been highly successful. WITNESS DALY: Can I just add, that's ‑ even though some of the structured habitat in Olympic site has been successful, some of it was only tendered frog green habitat, just ornamental ponds that they created and frogs colonised them. That's more or less an island population; when they hop out they all get squashed on the road so they're confined there and one of colleagues has done a population viability analysis on that population. In the long term, it's not viable. So whatever they do, they're not going to persist on every site. I'm really sorry to say, but that's the indication. ROBERTSON: Are they still there now? WITNESS DALY: They're still there, might last 50/80 years but ultimately it will drop out. That's really unfortunate." (Tcpt, 23 October 2019, p 111(8-32))
The Sydney Olympic Park development is 20 years old, but Mr Daly suggests a future life of 50-80 years for the population as a consequence of it being isolated. Over this time, there are likely to be many environmental changes including climate change and associated sea level rise, so that the threats are many and may cause loss of the population before the consequences of isolation result in extinction. If there were agreement that isolation was a major threat, then with appropriate safeguards and monitoring, the management authority could address the issue through augmentation of the population with individuals translocated from elsewhere. Mr Daly's assumption of extinction for the population does not factor in possible active management to counter this effect.

The assessment guidelines

The assessment of significance guidelines applicable to the evaluation cautioned against considering ameliorative measures 'unless the measure has been used successfully for that species in a similar situation'. In the case of GGBF, as the range of situations in which the species is found is large, it may be necessary to define what is meant by "similar situation" - successful measures in one locality may not be successful in every part of the ecological and geographical range of this species. Equally, failure at particular localities may not indicate universal failure at sites where different environmental conditions prevail. My assessment of the experts' evidence and from the literature is that there are some situations where we could be confident that establishment will not occur, some sites which have been successful and others where there was an expectation of success which was not met. There is clearly much still to be learnt about GGBF, so any proposed amelioration plans should allow for adaptive management.
Dr Pyke's evidence was that the subject site is not part of a breeding site, but it does provide a dispersal route to refuge sites. He considered that what is proposed will result in a net increase in the number of ponds/water bodies on the site and these will provide a diversity of conditions. The newly constructed ponds would be turkey-nest dams, avoiding any disturbance of acid sulfate soils. The raised elevation of the pond would also facilitate drying out which would limit the possibility of Gambusia occurrence. Any Gambusia in the ponds would be killed if the pond is dried out - Gambusia is live-bearing so recolonisation by larval fish would require overtopping in floods.
Dr Pyke thought that it was unlikely that breeding would occur in the created ponds, but it was not impossible, and if breeding occurred, it would be a bonus. (See Exhibit C par 196). "… As there is currently no GGBF breeding habitat on the subject site, none can be lost through the proposed development. Furthermore, with development ponds designed to be suitable for GGBF breeding, GGBF breeding habitat can only increase from its present level of zero."
The experts agreed (Exhibit 5, pars 6.1-6.2) that there were no records of locations on the subject land where GGBF tadpoles or metamorphosis have been recorded. They also agreed that sites where GGBF had been detected calling will be retained, and that the creation of waterholes may increase GGBF breeding habitat, but breeding cannot be guaranteed.
Mr Daly and Dr Pyke disagreed as to the significance of likely increased vehicle strike mortality as a result of increased traffic. Mortality would not be limited to GGBF but could affect other species of frogs, and other wildlife. Traffic issues were covered in Exhibit 12, the joint expert report of the traffic experts (Mr Wolstenholme for the Respondent and Mr McLaren for the Applicant) who were in agreement and were not required for cross-examination. Modelling conducted by Mr McLaren generated an estimate that the development, when completed, would generate 116 vehicle movements, both morning and evening, on Worrigee Road. Mr Daly (Exhibit 4, par 6.5) considered that "The increase in traffic will increase road mortality of GGBF disbursing to and from Brundee Creek especially from the Rotten Creek upper catchment. The mortality associated with collisions with vehicles, resulting from the proposal, would be a significant impact on the local population of GGBF…" (the upper catchment of Rotten Creek refers to the southern arm of Rotten Creek (including in the vicinity of site W1, visited on the site inspection, which Mr Daly considers to be a significant refuge site)).
Unfortunately, no data were presented on the incidence of traffic mortality (for GGBF or other wildlife) on Worrigee Road under present conditions. The experts agreed that in mass breeding events, as occurred in 2010/11, with very large numbers of juvenile frogs moving across the landscape, there would be higher numbers of GGBF killed by vehicle strike, but given the total population of juvenile GGBF during mass movement events, vehicle strike would not constitute a significant threat to the survival of the population. Dr Pyke agreed that there is a potential for traffic strike to occur during times of low population numbers, but the number of individuals affected would be so low that it would not constitute a risk of extinction to the population.
The proposal includes measures aimed at reducing vehicle strike through the provision of underpasses and frog fences (to guide frogs to underpasses). Mr Daly doubted that these measures would be successful - based on the experience of underpasses and frog fences constructed during the upgrading of the Pacific Highway to the west of the subject site which has been extensively studied. The Princes Highway is a multi-lane major highway with high traffic volumes, and the underpasses are much longer than those that would be required at Worrigee Road, and the frog fences were very much longer than those proposed for this project. Dr Pyke considered the use of culverts/underpasses had been demonstrated for the Southern Bell Frog (Exhibit C, par 194). The Southern Bell Frog is closely related to GGBF, which Dr Pyke suggested supported the likelihood that GGBF would use underpasses.
During the construction and development phase of the proposal, there will be increased heavy traffic. There will be a plan addressing traffic management during construction as a condition if approval is granted. Neither of the frog experts raised any construction traffic issues in relation to GGBF.

Contamination

The contamination issues arose during the course of the hearing and became a matter requiring intensive extra work by both parties.
Two joint reports were tendered - Exhibit 20 was prepared by Mr De Silva for the Applicant and Mr Kohlrausch for the Respondent, and Exhibit 21 was prepared by Mr Kohlrausch and Ms Walkden, the Environment Protection Authority (EPA) accredited site auditor engaged by the Applicant.
Site auditors are accredited by the EPA under the provisions of Pt 4 of the Contaminated Land Management Act 1997. A site auditor is required to be independent and to avoid conflicts of interest (Contaminated Land Management Act, s 54). Ms Walkden's role is thus different from that of an 'ordinary' expert witness. The parties did not raise any concerns about her participating to prepare a report with Mr Kohlrausch. My understanding is that Ms Walkden exchange correspondence with the EPA to clarify that her accreditation was not compromised by taking part in the joint conference. Ms Walkden had prepared an interim site audit advice (Exhibit M, Tab 4).
Following the identification of PFAS on the site, Construction Services, the company for which Mr De Silva works, had prepared a Detailed PFAS Assessment (DPA) (Exhibit O, Tab 11).
Consequent on the findings of the further investigations reported in the DPA, a Remediation Action Plan (RAP) was prepared (Exhibit P, Tab 13). (This is a Phase 3 report required by SEPP 55, cl 7 - a revised RAP is in Exhibit N, Tab 2) (the sequence of exhibits is by order of tendering, not by order of production).
The RAP proposes that the visible paper material on the site be removed from the site and retained in a licensed facility off-site. The contaminated material associated with past agricultural use of the site and identified in the Phase 1 and 2 reports would also be removed from the site. There was no disagreement between the parties that this should occur. The processes of removal, transport and long-term storage as landfill at an off-site facility (operated by a specialist company) for this material would be required to comply with the regulations in force at the time the actions occurred.
The difference between the parties relates to how additional contaminated soil should be treated.
The original version of the RAP included two options, both requiring stabilisation of the material and its encapsulation in a long-term storage. These were storage in a containment cell underneath a road in the development, or a containment cell constructed after filling what is currently a large dam site close to the southern boundary of Lot 7. Figure 2 Map 26311-21 Rev 4 shows in orange at the south of the site adjacent to Brundee View the position of the containment cell. (Exhibit M, Tab1) This dam was visited during the site inspection, although at the time, there was no anticipation that it might be proposed for construction of the containment cell. At the time of the visit, there was little water in the dam.
There was little support for the under the road option, so that the debate between the parties related only to the cell at the former dam site.
The containment cell would be lined with a geosynthetic clay layer and sealed. The containment material would be brought to the cell and mixed with a stabilising compound in a pugmill before being emplaced in the cell. The process was explained by Mr De Silva. "With regards to treated soil, I would like to point out the significant distinction between, say, a landfill and this material. As Mr Robertson said, this material will be undergoing treatment and stabilisation and pugmill. What comes out of this process would likely to be small granular material, at worst, which is not pointy, not likely to cause damage to the cell even under compaction." (Tcpt, 8 September 2020, p 183(4-9))
The advice from the experts was that the construction of a containment cell was a specialised task and that there were only a few companies with the necessary technical expertise to perform it.
As a result of the sampling carried out for the DFA (Exhibit O, Tab 11), it was assessed that: "…The surface soils impacted with PFAS is considered likely to be limited to 5 to 10 centimetres below ground level, with the exception of AEC03, where duplicate sample from a depth 0.3 to 0.4 metres reported PFAS at concentrations exceeding adopted criteria." (Mr Robertson, Tcpt, 11 September 2020, p 192(10-13))
The proposed containment cell is designed for a capacity of 10,000m3 with a potential additional capacity of 2000m3 so that the total maximum capacity of the cell for which approval is sought is 12,000m3. The basis for the calculation was: "Now, Commissioner, if you turn then to p 6 of 9 and look at the response to item (vi), this again is a criticism of the calculation of the volume for the containment cell. The criticism is the volume of material required to be remediated is stated as eight to 10,000 cubic metres, but there is no information presented on how this volume has been calculated. Then the answer is, "The volume requiring containment does not include the paper pulp stockpile volume. Paper pulp stockpiles are proposed to be removed off site." Estimated volume requiring containment was based on the following likely conservative numbers: 8.7 hectares - 87000 square metres - times the average depth of 7.5 centimetres equals 6525 cubic metres…" (Mr Robertson, Tcpt, 11 September 2020, p 192(27-36))
There is the possibility of unexpected future finds discovered during the course of the works, but Mr Robertson told the Court "And if it doesn't get encapsulated or if it's over that is taken off-site to landfill. I mean that's the way in which it works" (Tcpt, 11 September 2020, p 192(44-45)).
Exhibit 20 documents the lack of agreement between Mr Kolrausch and Mr De Silva on many matters, but Exhibit 21, following discussion between Mr Kolrausch and Ms Walkden documents broad agreement. They agreed that: "Remediation of soils impacted by PFAS through containment within an appropriately designed and managed containment cell in an area of open space land is technically feasible remediation strategy for the site" and "additional information is required to inform the detailed design and execution of the remediation strategy. The additional information requirement inform a condition of development consent" (Exhibit 21, third page (document unnumbered))
During the hearing, the landscape plan for the top of the containment cell was revised. The integrity of the cell is essential for its long-term function. The cell is a dry cell, and generation of, or entry of, liquid is to be prevented. The soil over the top of the cell would be relatively shallow and the original landscaping plan was problematic as the likely rooting depth of some of the plant species suggested is likely to pose a threat to the geosynthetic clay layer. The revised plans (Exhibit V, Tab 1) addressed this problem by a more appropriate choice of plants. Preventing water access to the cell during construction and filling is also essential. An appropriate condition to provide for covering at night and during rain periods was agreed.
A related issue was the depth of the water table below the base of the cell. Mr Kohlrausch considered that the NEMP (Exhibit 23, Tab 8) recommends a separation of at least 2 m between the base of the containment cell and the height of the groundwater (Tcpt, 6 August 2020, p 43(1-3)). Groundwater is not at a constant level, and varies depending on the circumstances of the site, recent weather and the extent of the aquifer. Mr De Silva stated: "WITNESS DE SILVA: I would like to add that groundwater levels in this area would have been substantially elevated during the rain periods that we had in March, April of this year. Prior to that, it was a sustained low rainfall period. March and April and even February, I believe, had some significant rainfall events which would have already raised the groundwater levels in this area. Now, there's not really reliable data to measure that variability, but if you were to consider the empirical evidence the rainfall would have elevated this groundwater level. So my view of this seasonal fluctuation is that we are ‑ we are already looking at elevated groundwater levels at the dam on a seasonal fluctuation basis. So we aren't looking at the lowest levels, we are probably mid to high levels of seasonal fluctuation." (Tcpt, 6 August 2020, p 49(8-18)) The early 2020 rains would have recharged the groundwater following dry conditions, but the height of the groundwater when Mr De Silva made the record was not necessarily the maximum possible. The reported difference of level at the time of sampling of more than 3 m gives a degree of comfort that the groundwater will not reach the cell.
Ms Walkden pointed out: "WITNESS WALKDEN: Just that the cell is designed with impermeable liner to prevent any ingress of groundwater, even seepage from around the areas. I also think in the NEMP 2 that 2 metre buffer zone relates to reuse of PFAS material; not contained PFAS material. The containment cell, there are a series of requirements to take into consideration when you design a containment cell, but I don't see that the 2 metre buffer is specified of that section of the NEMP. ROBERTSON: Thank you. Do you have any response to that, Mr Kohlrusch? WITNESS KOHLRUSCH: No, I don't. ROBERTSON: Good." (Tcpt, 6 August 2020, p 48(20-32))
Little is known about the direction of groundwater flows on the site and there was agreement that further monitoring is required.
A major concern of the Respondent was that of uncertainty, in that the RAP was conceptual, and if approval was to be granted, the Respondent sought in the Draft "Without Prejudice" Conditions of Consent (Exhibit 25), in Schedule A, a series of documents "be submitted to the Council for the consideration and written approval". Six (A-F) of the conditions in Schedule A relate to the contamination contention (the seventh required that approval for the separate DA (SF10714) for the boundary adjustment to provide for access to Aldous Place be obtained). The proposed deferred commencement conditions A-F would require extra investigations, and a revised RAP and EMP. The Applicant, while agreeing that the reports and plans are required, argued for them to be made subject of operational conditions.
Conditions must be certain, but what does certainty in this context require? The outcome of the planning process contains inherent uncertainties. If consent is granted, there is no obligation on the Applicant to take action on it. If there is no commencement within the period specified in the consent, the consent will lapse, but the Applicant (or any subsequent owner of the consent - the consent runs with the title) may choose not to commence without being required to give reasons.
The RAP was described as conceptual by the Applicant, which led the Respondent to argue that this meant that the form, and hence, the outcome of the RAP was uncertain. However, the 'conceptual' nature of an RAP is inherent in the process, which essentially establishes an adaptive management regime. The RAP validation process, requiring further sampling and chemical analyses, will disclose the extent of any further removal of soil (for on- or off-site retention) that would be required, so that at the commencement of the process the exact amount of soil which will be treated is not known, but if more material does require to be remediated, then there is certainty as to how it will be treated.
The process of adaptive management was explained in NHVSS at [181]-[185]: 181 As I noted in Telstra Corporation Ltd v Hornsby Shire Council at [162]-[164]: "162 Prudence would also suggest that some margin for error should be retained until all the consequences of the decision to proceed with the development plan, programme or project are known. This allows for potential errors in risk assessment and cost-benefit analysis. Potential errors are weighted in favour of environmental protection. Weighting the risk of error in favour of the environment is to safeguard ecological space or environmental room for manoeuvre: T O'Riordan and J Cameron, "The History and Contemporary Significance of the Precautionary Principle" in T O'Riordan and J Cameron (eds), Interpreting the Precautionary Principle , Earthscan Publications, 1994, p. 12 at p. 17; and C Barton, "The status of the precautionary principle in Australia: Its emergence in legislation and as a common law doctrine" (1998) 22 Harvard Environmental Law Review 509 at 520. 163 One means of retaining a margin for error is to implement a step-wise or adaptive management approach, whereby uncertainties are acknowledged and the area affected by the development plan, programme or project is expanded as the extent of uncertainty is reduced: M D Young, "The precautionary principle as a key element of ecologically sustainable development" in R Harding and E Fisher, Perspectives on the Precautionary Principle , Federation Press, 1999, 127 at 140. 164 An adaptive management approach might involve the following core elements: • monitoring of impacts of management or decisions based on agreed indicators; • promoting research, to reduce key uncertainties; • ensuring periodic evaluation of the outcomes of implementation, drawing of lessons, and review of adjustment, as necessary of the measures or decisions adopted; and • establishing an efficient and effective compliance system": see "Guidelines for applying the precautionary principle to biodiversity conservation and natural resource management" in Appendix A to R Cooney and B Dickson (eds), Biodiversity and the Precautionary Principle, Risk and Uncertainty in Conservation and Sustainable Use, Earthscan, 2005 p. 304, Guideline 12." 182 The measures adopted should also be proportionate to the threat of environmental damage. A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated costs, such as financial, livelihood and opportunity costs, and the seriousness and irreversibility of the threat: Telstra Corporation Ltd v Hornsby Shire Council at [167]. Considerations of practicability must be taken into account: at [169]. The cost consequences of increasing levels of precaution must be evaluated: at [171]. There should be an assessment of the risk-weighted consequences of various options: at [172] and [173]. 183 In the circumstances of this case, I consider that the appropriate and proportionate response to the threat of environmental damage to biota within the limestone is to implement a step-wise or adaptive management approach. This would involve imposition of conditions of consent requiring monitoring linked to adaptive management. 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. 185 The imposition of regimes for monitoring and adaptive management as an application of the precautionary principle was accepted as appropriate in Tuna Boat Owners Association of SA Inc v Development Assessment Commission (2000) 77 SASR 369; 110 LGERA 1 at [35] and Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 at [58] and discussed in Telstra Corporation Ltd v Hornsby Shire Council at [163]-[165]." The passage was cited with approval in Sustain Our Sounds Inc v The New Zealand King Salmon Co Ltd [2014] 1 NZLR 673; [2014] NZSC 40.
The appropriateness of adopting an adaptive management approach was confirmed by Preston CJ in Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd (2016) 216 LGERA 40; [2016] NSWLEC 6 (Upper Mooki) at [144] and [171]. The case was an appeal against the decision of the PAC. "144 The PAC had power under s 89E(1)(a) of the EPA Act to grant consent on conditions, such as conditions 35 and 36, that provide for preparation of plans of management, including detailed information on the baseline data of the koala population, the identified impacts on koalas, the measures to mitigate and manage the identified impacts, the program to monitor koala health, distribution of population size and translocated koala health and distribution, and the potential risks to successful implementation of the plan and the contingency measures to mitigate against these risks. Such an adaptive management approach is an appropriate response to deal with the uncertainty and risk concerning the impacts on the koalas and the measures to mitigate the impacts on the koalas. The conditions of consent embodying this adaptive management approach are within power and do not impermissibly defer consideration of the matters the subject of adaptive management until after the grant of consent." "171 Third, the Minister submitted that the PAC imposed a regime for monitoring and adaptive management that involved application of the precautionary principle: Telstra Corporation Pty Ltd v Hornsby Shire Council at [163]-[164] and Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48; (2010) 210 LGERA 126 at [181]-[185]. The PAC imposed conditions concerning koalas (in particular conditions 35 and 36), which involved monitoring of impacts, periodic evaluation and a compliance system. They were intended to deal with residual risk in accordance with the precautionary principle and were a proper response to dealing with uncertainty as to impacts: Rivers SOS v Minister for Planning at [131]; Ulan Coal Mines Ltd v Minister for Planning at [99]. The imposition of such conditions evidenced the PAC's consideration and application of the precautionary principle."
The consent granted by the PAC in NSW Planning Assessment Commission Determination Report Port Waratah Coal Services Terminal 4, Newcastle LGA (see [176] above) was in the same form as that granted in Shenhua Watermark. The Port Waratah Coal Services consent included the establishment of the Brundee offset area to the north of the Brundee Swamp.
The structure and content of the operational conditions contended for by the Applicant accords with the precedents established in New South Wales and does not represent a leap into the unknown. Nevertheless, the Court needs to be satisfied that the details of the particular processes and plans are appropriate in the circumstances of this case.

The public interest

There are elements of public interest in the application of laws and policy in relation to all the contentions, but in addition, the matter attracted submissions from a number of members of the public - both local residents and oyster farmers. In addition, after the events of early 2020, an additional submission was made by Mr Rambouts on behalf of the residents of lower Worrigee Road (Exhibit 24). This submission included a number of images of the bush fires in early 2020 and the flood conditions in February 2020.
The concerns expressed through the series of submissions covered a range of matters, but concentrated on:

Traffic;
The need to keep the gate currently situated at the end of the made portion of Worrigee Road locked, particular to deter dumping in the Brundee Swamp Nature Reserve and Currambene State Forest; and
What is referred to in Exhibit 24 as "The damage to the Endangered Ecological Communities that are native to the site". The issues raised in respect of this encompass biodiversity more broadly.

Of these issues, that relating to the gates on the road was not raised in the Respondent's contentions, although it was discussed during the hearing.
The existing locked gate on Worrigee Road was installed at the request of residents in order to address the "recurrent dumping of stolen cars and other rubbish in the area". There was a major concern among residents that the removal of the gate would see the return of illegal dumping of rubbish and stolen cars (Exhibit 24, p 20).
Responding to these concerns, the Applicant tendered a plan (Exhibit X) showing the location of three new gates to be installed, which would be locked but would permit authorised access. The plan is annotated with a note stating: "All new gates to be installed with the approval of the Shoalhaven City Council (as the Road Authority via s 138 of the Roads Act) and the adjoining landowner."
Section 138 of the Roads Act 1993 states: 138 Works and structures (1) A person must not - (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. Maximum penalty - 10 penalty units. (2) A consent may not be given with respect to a classified road except with the concurrence of TfNSW. (3) If the applicant is a public authority, the roads authority and, in the case of a classified road, TfNSW must consult with the applicant before deciding whether or not to grant consent or concurrence. (4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person. (5) This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section.
Section 139 of the Roads Act states: 139 Nature of consent (1) A consent under this Division - (a) may be granted on the roads authority's initiative or on the application of any person, and (b) may be granted generally or for a particular case, and (c) may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and (c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and (d) may be granted on such conditions as the appropriate roads authority thinks fit. …
The Applicant would fall into the category of "any person" under s 139(1)(a) and thus may apply to the Respondent for consent for the works in Exhibit X.
Grant of consent for the gates in the positions indicated in Exhibit X would resolve the issues raised by the residents.
In relation to other issues of concern to the objectors, the parties have reached agreement on conditions to be applied if the proposal is approved. In relation to water quality, the Applicant's WSUD approach is aimed at addressing these issues.
The objectors were concerned about the quantity of fill required to bring the future residential land above the 1 in 100 year flood level - both because of the construction traffic movements that would be generated, and because of the possibility of dust being blown from the fill before it was fully vegetated. Conditions addressing both concerns are to be incorporated in the conditions for consent.
The objectors also expressed concern on the potential for the residential area to be flooded requiring emergency evacuation. The two flood events in 2020, although attracting media coverage, were not exceptionally high (see Exhibit 24, Exhibit W) being estimated at between 1 in 5 and 1 in 10 year events; they flooded lower parts of the subject site but they were well below the 1 in 100 year flood level. Filling to above this level is required in the residential lots.
The objectors' concerns about fire risk are understandable given recent experience, but two highly experienced bushfire experts reached agreement as to the conditions to be imposed.

Ongoing management

A concern of the Respondent was that the arrangements for long-term management and responsibility for commitments could not guarantee certainty.
The proposal results in current Lots 6 and 7 being subdivided so as to provide for 134 community title lots and 2 community lots (Lots 1001 and 4001) and one Torrens title rural lot (Lot 224). Lot 224 is the area in the north-east part of the site which includes the existing trotting track and no additional development is proposed on this part of the site. Existing use could continue.
The community title and community lots will be created pursuant to the Community Land Development Act 1989. Under the Act, a community plan is to be registered with the Registrar-General. 5 Community plan (1) Land that is not part of a community parcel, precinct parcel, neighbourhood parcel or strata parcel may be subdivided by the registration of a community plan as a deposited plan. (2) A community plan must include, as sheets of the plan: (a) a location diagram, and (b) a detail plan, and (c) a community property plan, and (d) an initial schedule of unit entitlements. (3) The Registrar-General may refuse to register a community plan as a deposited plan unless: (a) the plan complies with Schedule 1, and (b) the initial schedule of unit entitlements complies with Schedule 11, and (c) there is endorsed on the plan the address at which documents may be served on the community association constituted on registration of the plan, and (d) the documents referred to in subsection (4) are lodged for registration with the plan. (4) The documents required to be lodged for registration with a community plan are: (a) a community management statement that complies with Schedule 3 and that, on registration, will become binding in accordance with section 13 of the Community Land Management Act 1989, and (b) any other prescribed documents. (5) There may be lodged for registration with a community plan a development contract for the community scheme that complies with Schedule 2 and that, on registration, will become binding in accordance with section 15 of the Community Land Management Act 1989. (6) The documents registered with the plan form part of the plan. (7) On registering a community plan, the Registrar-General: (a) is to make in the folio for the community property the recordings required by Schedule 5, and (b) may make, in the folio for a community development lot, a recording relating to the community property, and (c) may make such other recordings and notations as the Registrar-General thinks fit.
Under the Community Land Management Act 1989 (CLM Act), a community association is formed. 5 Community association (1) The corporation that - (a) is constituted under the Community Land Development Act 1989 by the registration of a community plan as a deposited plan, and (b) has for its corporate name "Community Association D.P. No " (the number inserted being that of the deposited plan), is a community association for the purposes of this or any other Act. (2) The corporation has for its members - (a) the proprietor of each community development lot in the community plan that has not become subject to a subsidiary scheme, and (b) the precinct association constituted if such a development lot becomes subject to a precinct scheme, and (c) the neighbourhood association constituted if such a development lot becomes subject to a neighbourhood scheme, and (d) the strata corporation constituted if such a development lot becomes subject to a strata scheme. …
The Community Association is analogous to an owners' corporation of a strata plan, and would be responsible for ensuring that the conditions of consent are adhered to, and that any other relevant legal obligations are met. When the community plan is registered, it is to be accompanied by a community management statement as defined in s 3 of the Community Land Development Act as: community management statement means a statement that is registered with a community plan as a statement of the by-laws and other particulars governing participation in the community scheme. Unlike the common arrangement for strata schemes where a model set of by-laws is adopted, there are no model by-laws for Community Management Statements so that bespoke by-laws for each community scheme are required.
Under the CLM Act, the Community Management Statement imposes obligations on the Community Association and owners or occupiers. 13 Binding effect of management statement (1) A community management statement is binding on - (a) the community association, and (b) each subsidiary body within the community scheme, and (c) each person who is the proprietor, lessee or occupier, or the mortgagee or covenant chargee in possession, of a development lot, neighbourhood lot or strata lot within the community scheme. (2) A precinct management statement is binding on - (a) the precinct association, and (b) each subsidiary body within the precinct scheme, and (c) each person who is the proprietor, lessee or occupier, or the mortgagee or covenant chargee in possession, of a precinct development lot, neighbourhood lot or strata lot within the precinct scheme. …
The Community Association can enforce the by-laws that form part of the Community Management Statement. 13A How can an association enforce the by-laws? An association may serve a notice, in a form approved by the Secretary, on the proprietor or occupier of a lot requiring the proprietor or occupier to comply with a specified provision of the by-laws if the association is satisfied that the proprietor or occupier has contravened that provision. Note - A person may be fined by the Tribunal for failing to comply with a notice under this section (see section 97C).
If the development is approved, the developer would be responsible for the initial works and the Community Association would not come into operation until after the sale of lots to individual owners. The developer would be required to establish a sinking fund (or funds), with the amount to be placed in the fund(s) determined by an independent auditor, taking into account the liabilities and obligations of the Community Association and would set levies (proposed conditions of consent 121-123).
The management of the Community Association will require technical knowledge and experience. However, as with owners' corporations of strata schemes, the CLM Act provides for the appointment of a professional managing agent: s 50. 50 Appointment of, and delegation to, managing agent (1) An association may, by instrument in writing authorised by a resolution at a general meeting - (a) appoint a managing agent, and (b) delegate to the managing agent any function of the association or its executive committee, or of its secretary or other officers. (2) Subsection (1) does not confer power to delegate - (a) the powers conferred by that subsection, or (b) the power to make a decision on a restricted matter, or (c) the power to determine contributions by members or to make levies on them. (3) An association may not appoint a person as managing agent unless the person holds any licence required by law to be held by a managing agent for the association. (4) A community association, or a precinct association, that appoints a managing agent during the initial period may terminate the appointment at the first annual general meeting of the association. (5) Subsection (4) does not authorise termination of the appointment of a managing agent earlier than 2 years after the appointment unless there is reasonable cause for the termination. (6) A managing agent for a neighbourhood association who is appointed during the initial period ceases to be the managing agent at the end of the first annual general meeting of the association unless the appointment is ratified at the meeting. (7) A community association or precinct association that appoints a managing agent during the initial period is guilty of an offence unless, before making the appointment, it informed the managing agent that the appointment could be terminated after 2 years. Maximum penalty - 5 penalty units. (8) A neighbourhood association that appoints a managing agent during the initial period is guilty of an offence unless, before making the appointment, it informed the managing agent that the appointment would terminate at the end of the first annual general meeting of the association unless ratified at the meeting. Maximum penalty - 5 penalty units. (9) In this section - restricted matter means a matter - (a) that may be decided by the association only by a unanimous or special resolution or at a general meeting, or (b) that a general meeting of the association has decided may be decided only at a general meeting.
Under s 52, liability for failing to exercise a function of the Community Association would fall on the managing agent. 52 Liability of managing agent under delegated duty If - (a) a failure by an association to exercise a function is an offence under this Act, and (b) the exercise of the function was, at the time of the failure, delegated to a managing agent, a reference to the association in the provision conferring or imposing the function is to be read as a reference to the managing agent.
Appointment of a managing agent is not mandatory, but the Applicant during the hearing proceeded on the basis that there would be managing agent (for example, Tcpt, 8 September 2020, p 176(10-17)). Given the complexity of the Community Management Statement and the conditions, I would suggest that the Community Association would be unwise not to appoint a managing agent, but this cannot be guaranteed. If there were not a managing agent, the obligations and liabilities would fall wholly on the Community Association.
The Applicant helpfully provided a guide to requirements imposed by the GGBF management plan, the VMP and the RAP, identifying conditions in parts of the Community Management Statement that enforce these requirements (Exhibit Z).
In March 2020 assent was given to the Community Land Management Act 2021 and the Community Land Development Act 2021 but neither has commenced so the application is to be considered under the current legislation.
Issues of how remediation of the site and long-term management of the containment cell were also of concern to the Respondent.
In the case of the containment cell, there are two activities requiring approval. Firstly, the construction of the cell, and secondly, its long-term management.
The construction of the cell is part of the amended application so that approval will be part of any consent (if consent is granted), and will have conditions to be applied to the construction process.
The long-term management of the cell is likely to be governed by the terms of any Environment Protection Licence (EPL) issued by the EPA. There has been correspondence between the Respondent and the EPA over this issue (Exhibit 23, Tabs 1-3).
The EPA's response (Exhibit 23, Tab 3) was not conclusive. The agency required more information before they could arrive at a decision. The Applicant and Ms Walkden were of the opinion that an EPL would be required.
The regime governing EPLs is in Ch 3 of the Protection of the Environment Operations Act 1997 (POEO Act). Licences may be issued for a range of purposes: 43 Types of licences Environment protection licences may be issued for the following purposes - (a) to authorise the carrying out of scheduled development work at any premises, as required under section 47, (b) to authorise the carrying out of scheduled activities at any premises, as required under section 48, (c) to authorise the carrying out of scheduled activities not related to premises, as required under section 49, (d) to control the carrying out of non-scheduled activities for the purpose of regulating water pollution resulting from any such activity, as referred to in section 122. Note - Scheduled activities for which a licence is required are set out in Schedule 1. Scheduled development work for which a licence is required is defined in section 47 (being generally work on premises, at which scheduled activities are not carried on, that is designed to enable scheduled activities to be carried on at the premises). This Act permits (but does not require) a licence to be issued for a non-scheduled activity - compliance with the conditions of the licence provides a defence to the offence of polluting waters under section 120. The language is permissive - licences may be issued, if a licence is required.
Section 48 relates to activities on Sch 1 of the POEO Act. 48 Licensing requirement - scheduled activities (premises-based) (1) Application of section This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on. (2) Offence A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises. Maximum penalty - (a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. Note - An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation - see section 169A.
The activity listed in Sch 1 applying in the present circumstance is "contaminated soil treatment" as defined in Sch 1 cl 15. 15 Contaminated soil treatment (1) This clause applies to contaminated soil treatment, meaning the on site or off site treatment of contaminated soil (including, in either case, incineration or storage of contaminated soil but excluding excavation for treatment at another site). (2) The activity to which this clause applies is declared to be a scheduled activity if - (a) in any case, it has the capacity to treat more than 1,000 cubic metres per year of contaminated soil received from off site, or (b) where it treats contaminated soil originating exclusively on site, it has a capacity - (i) to incinerate more than 1,000 cubic metres per year of contaminated soil, or (ii) to treat (otherwise than by incineration) and store more than 30,000 cubic metres of contaminated soil, or (iii) to disturb more than an aggregate area of 3 hectares of contaminated soil.
The activity proposed to be carried out on the site falls within cl 15(2)(b)(iii) as the contaminated soil to be stored in the containment cell would have originated from more than 3 ha of the site.
There is little doubt that it will be necessary for the Applicant to obtain an EPL. However, while an application has to be made, there is no obligation on the EPA to issue a licence; absent a licence, the project cannot proceed.
If an EPL is issued, then the Applicant (in the first instance, and the Community Association subsequently) will be bound by the conditions of the licence.
As the construction of the containment cell is part of the application for which an approval is sought, s 50 of the PEOA applies. 50 Timing of licensing of development requiring consent under EP&A Act (1) Licensing of development controlled under EP&A Act This section applies to development that cannot be carried out without development consent under the Environmental Planning and Assessment Act 1979. This development is called controlled development in this section. (2) Licence to be concurrent A licence that relates to controlled development must not be granted or varied (other than on the initiative of the EPA) by the appropriate regulatory authority, unless development consent has been granted for the controlled development. However, this section does not prevent the consideration of a licence application by the appropriate regulatory authority before development consent is granted. (3) Existing use Without limiting the above, this section does not apply to the extent that development consent is not necessary under the Environmental Planning and Assessment Act 1979 because of an existing use. (4) Definitions In this section - development has the same meaning as in the Environmental Planning and Assessment Act 1979. development consent means consent under Part 4 of the Environmental Planning and Assessment Act 1979, and includes approval to carry out a project or infrastructure under Part 3A or Part 5.1 of that Act. existing use has the same meaning as in Division 10 of Part 4 of the Environmental Planning and Assessment Act 1979.
The proposed remediation work (including the containment cell) is, for the purposes of SEPP 55, categorised as Category 1 Remediation (SEPP 55, cl 9). 9 Category 1 remediation work: work needing consent For the purposes of this Policy, a category 1 remediation work is a remediation work (not being a work to which clause 14(b) applies) that is - (a) designated development, or (b) carried out or to be carried out on land declared to be a critical habitat, or (c) likely to have a significant effect on a critical habitat or a threatened species, population or ecological community, or (d) development for which another State environmental planning policy or a regional environmental plan requires development consent, or (e) carried out or to be carried out in an area or zone to which any classifications to the following effect apply under an environmental planning instrument - (i) coastal protection, (ii) conservation or heritage conservation, (iii) habitat area, habitat protection area, habitat or wildlife corridor, (iv) environment protection, (v) escarpment, escarpment protection or escarpment preservation, (vi) floodway, (vii) littoral rainforest, (viii) nature reserve, (ix) scenic area or scenic protection, (x) wetland, or (f) carried out or to be carried out on any land in a manner that does not comply with a policy made under the contaminated land planning guidelines by the council for any local government area in which the land is situated (or if the land is within the unincorporated area, the Minister). Note - See section 5A of the Environmental Planning and Assessment Act 1979 for the factors to be taken into account in assessing whether there is likely to be a significant effect as referred to in paragraph (c) above. The terms used in that paragraph are defined in that Act by reference to both the Threatened Species Conservation Act 1995 and the Fisheries Management Act 1994.
Clause 12 of SEPP 55 provides that: 12 Refusal of consent to category 1 remediation work (1) The consent authority must not refuse development consent for a category 1 remediation work unless the authority is satisfied that there would be a more significant risk of harm to human health or some other aspect of the environment from the carrying out of the work than there would be from the use of the land concerned (in the absence of the work) for any purpose for which it may lawfully be used. (2) Nothing in this clause prevents the consent authority from refusing consent to a development application if - (a) by operation of an environmental planning instrument or section 79B(3) of the Act, the development application may not be determined by the granting of consent without the concurrence of a specified person, and (b) that concurrence is not given.
Removal of the soil contaminated with PFAS at concentrations above the trigger level and containment of the removed soil within a dry cell will reduce the risk of harm to less than would be the potential risk of leaving it in situ over a wide area.

Consideration

There are a number of jurisdictional issues which must be addressed. For threatened species, there have been numerous cases which have addressed the issue of whether a SIS was required, either as a standalone document or incorporated within an EIS (See Ryan and the cases cited within). Pain J said in Ryan (at [144]) that: "…whether or not a SIS is required is a question of jurisdictional fact which the Court must decide for itself on the basis of the evidence before it. If a SIS is required but does not accompany the DA, development consent cannot be granted…" In their approach to deciding whether a SIS was required, the parties differed as to what constituted the proposal that could be considered. Pain J in Ryan (at [145]) continued: …The inquiry must focus on the development as it stood immediately prior to the determination…Ameliorative measures proposed as part of the DA can be considered (not measures imposed as conditions of development consent) …" (citations omitted) The requirement for a SIS to accompany the DA is provided in the then s 78A(8)(b) of the EPA Act.
The development application at the end of the hearing included proposed ameliorative measures. The proposed conditions include conditions which apply to the ameliorative measures, but the ameliorative measures themselves did not appear de novo in the conditions.
On the basis of Ryan (at [145]) and the early authorities cited therein, it is clear that in conducting the seven part test in s 5A of the EP&A Act, ameliorative matters proposed as part of an application for consent not only can, but should, be taken into account.
This would appear to conflict with Mr Daly's interpretation of the Threatened Species Conservation Act guidelines for assessment (Exhibit 29). Section 5A requires that the guidelines be taken into account. The Respondent argued that the judgment in Smyth (the case which the Applicant cited as the first statement that ameliorative measures could be taken into account) was handed down long before the guidelines were issued and was therefore irrelevant. In my view, Mr Daly's implicit interpretation of the guidelines is incorrect. The advice on p 12 of the guidelines is not a blanket recommendation not to take into account all ameliorative measures proposed, but rather, it is not to consider those that "have not been used successfully for that species in a similar situation".
Even without the guidelines, I would consider that any application of the 7-part test would not have considered measures never previously applied to a species or community, although whether extrapolation from measures applied to other species is appropriate and whether how similar the circumstances of the particular matter are similar to those of other cases would be matters for expert opinion.
For GGBF, what becomes critical is whether the proposed ameliorative measures are such that a SIS was not required. Lot 1001 contains remnants of natural vegetation, but has otherwise been substantially modified by its history of grazing and use as part of the golf course. The proposal is for regeneration of the EECs and for the provision of new ponds which will be managed to increase their value as habitat for GGBF; and although Dr Pyke considers that these ponds are unlikely to become breeding habitats, this could not be ruled out. Mr Daly considered that sites where GGBF have been recorded calling should be considered breeding sites, although positive evidence of breeding within the subject site has not yet been obtained. One water body for which calling has been recorded (the pond identified as SN53 in Exhibit 14) will be destroyed but more water bodies with similar characteristics would be constructed on Lot 1001. SN53 itself is not a natural feature but one that was previously constructed.
It is also recognised that GGBF will have moved more widely across the site when foraging or dispersing. The development of a residential estate would result in construction of roads and buildings and these may provide some restrictions on GGBF movement, but they would not constitute an absolute barrier.
GGBF in the general area has been the subject of much study over many years and information from those studies is accessible, and was indeed considered by both parties. While there are still (and always will be) unknowns, it seems to me unlikely that production of a SIS, conducted over a brief period, would have added much extra information, rather a SIS would have been largely based on the existing data and its interpretation.
The 7-part test focuses on risks of extinction. I am mindful of the consequences of cumulative impacts (the death from a thousand cuts scenario) and of the insidious nature of the extinction process, but I am of the opinion that the Applicant correctly applied the 7-part test, and that a SIS is not required. Further, the 7-part test and the available data do not provide a basis for refusal of the proposed development on grounds of impact on GGBF.
GGBF is not the only threatened entity of relevance to the proposal. A number of EECs are relevant. A number of EECs occur on the site. Three are listed in the FASOFAC as occurring on the site (Exhibit 26, Part B, par 1): "Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions Swamp Oak Floodplain Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions Freshwater Wetlands on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions"
From my own observations on site inspections, and from the reports prepared for the Applicant and from the expert reports, I have no doubt that these EECs have been correctly identified.
During the second of the site inspections, I observed small patches of a further EEC - Coastal Saltmarsh in the NSW North Coast, Sydney Basin and South East Corner Bioregions - between the trotting track and the Nature Reserve extending southwards towards Rotten Creek. I mentioned this at the time and in Court (Tcpt, 7 August 2020, p 76(4-10)). No development is proposed in this vicinity, although existing use will continue. The occurrence is not a relevant consideration for the current proposal.
There was little discussion of the EECs during the hearing, although the contentions raised in the ASOFAC were covered in the joint report of Mr Berrigan and Dr Wotherspoon (Exhibit 11). Dr Wotherspoon's main concerns were in relation to hydrology and nutrient impacts.
The proposal includes substantial revegetation, including restoration of the EECs within Lot 1001. These ameliorative measures are to be taken into account in the 7-part test. I agree with Mr Berrigan's conclusions that the proposal does not increase the risk of extinction of the local occurrence of the EECs. When the ameliorative measures and the long-term management of Lot 1001 required by the Community Management Statement and the proposed conditions are taken into account, the outcome would be an improvement on the present situation. SISs for the EECs are not required and there are no issues relating to the EECs warranting refusal.
The occurrence of YBG on the site was a matter of difference between the parties. For the purpose of carrying out a 7-part test, Mr Berrigan (on precautionary grounds) assumed YBG occur on the site. Mr Daly asserted that it did (Exhibit 19). In Ryan (at [110], discussing a different species), Pain J observed "…[at] least two separate independent sightings would constitute sufficient foundation for finding the presence of any threatened species". In this matter, there are two observations (Exhibit 19) - the sighting of YBG overhead by Mr Daly, and an indirect (surrogate) sighting in the form of the observations of incisions on a Grey Gum, which, if not fresh, were relatively recent. These incisions were observed by the Court on the site inspection. Accordingly, the presence of YBG is a fact, rather than a presumption. However, this does not alter the outcome of the 7-part test.
In view of the possible impacts on YBG, as a result of the recent fires, it is difficult to predict the future of the more widely distributed YBG population. Nevertheless, while continuing to be mindful of cumulative impacts, I am persuaded by Mr Berrigan's arguments that the proposed development will not be such as to warrant refusal of the proposal.
A jurisdictional issue also arises from cl 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55). 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is - (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital - land - (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).
There is no dispute that the land is contaminated (SEPP 55, cl 7(1)(a)).
There is no dispute that the contaminated land is not suitable for development in its contaminated state. Remediation is proposed. After completion and validation of remediation (to the satisfaction of the site auditor and the EPA), the site will be suitable for development, although long-term management of the containment cell would be required (SEPP 55, cl 7(1)(b)).
Clause 7(1)(c) is prospective. It does not require the site to be already remediated and developable, rather the wording is "will be remediated". The proposal requires removal from the site of the 'agricultural' contaminants identified in the Phase 2 report and the stockpiles and surface deposits of the PFAS-coated paper material and the scraping of the soil over an area of about 8.5 ha and the encapsulation of the material in a purpose-built containment cell. Any material exceeding the capacity of the cell will be removed to landfill off-site. The contamination would be managed, in perpetuity, by the Community Association.
I am satisfied that the site will be remediated prior to development.
Jurisdictional thresholds are set by a number of the special provisions in SLEP 2014. These take the form of the consent authority being required to be satisfied that the various matters have been considered and/or that the consent authority cannot grant consent unless there is satisfaction that certain matters have been addressed in a specified manner. The various provisions were identified in the FASOFAC, but were not specifically the subject of evidence or discussion beyond that contained in discussion of other contentions. I am, nonetheless, satisfied that the matters arising from cll 7.1, 7.3, 7.4, 7.5 and 7.6 have been properly addressed, and that application of the proposed conditions of consent will provide satisfactory outcomes.
There not being a jurisdictional bar to considering the proposal on its merits, I have reached the opinion that the outcome of the proposal, and the continuing operation of the large number of management plans which will be required under the consent conditions, will be such that there are no grounds under which consent should be refused.
Approval imposes considerable and ongoing responsibility on the Community Association. The Community Management Statement provides for a model of funding that requires an independent auditor determining the amount required in the sinking fund(s) and for levies. While I can understand the concerns of the Respondent and the resident objectors regarding these arrangements, the model is legally enforceable. I must assume that there will be regularity in the application of the Community Management Statement (and the associated by-laws), the conditions and the requirements of any external regulatory authority.

Orders

Accordingly, the Court orders that: 1. The Applicant be granted leave to rely on the plans and other documents listed in Condition 3 of Annexure A. 2. The Applicant is to pay the Respondent's costs "thrown away" as a result of the amendments made to the development application on 5 August 2020 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The appeal is upheld. 4. Development consent is granted to Development Application No. SF19570 for the works, in stages, described in Annexure B, at 23A Aldous Place and 369 Worrigee Road, Worrigee, subject to the conditions of consent set out in Annexure A. 5. The exhibits are returned, except for Exhibits, D, M (Tabs 1, 4, 8), N (Tab 2), O (Tab 11), V (Tabs 2, 4, 5), X, Z and 26.

Acting Commissioner of the Court Annexure A (710136, pdf) Annexure B (132598, pdf)

Endnote

National Institute of Environmental Health Sciences, Endocrine Disruptors accessed 12 June 2021. 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: 26 July 2021

(2010) 210 LGERA 126

At a glance

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Judgment (21 paragraphs)

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Cases Cited (12)

Cited By (1)