Angus Development (Winda Woppa) Pty Ltd v Great Lakes Council

Land and Environment Court (NSW)|2005-12-19|Before: Ms J, Mr P

CITATION : Angus Development (Winda Woppa) Pty Ltd v Great Lakes Council [2005] NSWLEC 724

APPLICANT Angus Development (Winda Woppa) Pty Ltd

PARTIES : RESPONDENT Great Lakes Council

State Environmental Planning Policy No. 71 - Coastal Protection Threatened Species Conservation Act 1995 Threatened Species Conservation Amendment Act 2002, Act No. 78 of 2002 Rural Fires Act 1997 LEGISLATION CITED: Threatened Species Conservation Act 2002 Environmental Planning and Assessment Act 1979 Great Lakes Local Environmental Plan 1996 Development Control Plan No. 31 - Subdivision

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472.; CASES CITED: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; Leatch v National Parks and Wildlife Service & Anor [1993] 81 LGERA 270,

APPLICANT Mr G Green, solicitor Instructed by: Ms J Reid, solicitor SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Ms A Pearman, barrister Instructed by: Mr P Rees, solicitor SOLICITORS Peter Rees

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10317 & 11149 of 2005 Angus Developments (Winda Woppa) Pty Ltd v Great Lakes Council

JUDGMENT Introduction 1 These two appeals relate to the following matters: (a) The refusal of development application No. 388/2005 ("the subdivision application") for the subdivision of Lot 15 DP 115582, No. 5 The Anchorage, Winda Woppa (10317 of 2005). The two lots to be created are essentially rectangular in shape and will have areas of 537 sq m and 548 sq m and frontages of 18.5 m and 15 m respectively and are referred to as Lots 5 - 6. Indicative building footprints have been provided.

(b) The deletion of Conditions 5, 18, and 21 and the modification of Condition 20 in development consent 388/2004 ("the modification application") which is for the subdivision of Lot 1 DP 115595, No. 91. The Boulevarde, Winda Woppa, into four lots (11149 of 2005). The four lots are referred to as Lots 1 - 4. The sites 2 The vacant site associated with the subdivision application has an area of 1086 sq m. It contains 31 trees 10 of which are to be removed.

3 Both sites are situated on the relatively narrow Winda Woppa peninsula that contains public reserves having frontages to Port Stephens and the Myall River. There is also a public reserve in The Anchorage adjacent to both sites. The locality is otherwise residential in nature predominantly comprising one and two storey detached dwellings Statutory provisions 4 Both sites are zoned Residential 2(a) Low Density Residential under Great Lakes Local Environmental Plan 1996 ("the LEP"). Under the LEP subdivision and dwelling houses are permissible with development consent.

5 Clause 8(3) of the LEP provides that consent must not be granted unless the aims of the plan have been taken into consideration and the consent authority is satisfied that the proposed development is consistent with at least one or more of the objectives of the zone. The relevant objective of the 2(a) zone (objective (b) relates to non residential development and is not relevant) is: To enable residential development so that building within the zone will consist primarily of housing generally, does not exceed a height of two storeys and has private gardens. 6 Clearly the two subdivision proposals can facilitate compliance with this objective.

7 The relevant aims of the LEP comprise: + to protect and enhance the environmental qualities of the area; + to facilitate the orderly and economic development of land within the area; and + to promote the well-being of the area's population. 8 Whilst cl 8(3) of the LEP does not refer to the objectives of the LEP, the following objectives can nevertheless be taken into consideration: (c) to protect environmentally sensitive areas and the heritage of the area; and (d) to improve opportunities for ecologically sustainable development. 9 State Environmental Planning Policy No. 71 - Coastal Protection ("SEPP 71") is applicable and in essence relevantly requires the consideration of plant and animal conservation within the meaning of the Threatened Species Conservation Act 1995 ("the TSC Act") and existing wildlife corridors.

10 Also applicable is Development Control Plan No. 31 - Subdivision ("DCP 31"). No issue of non-compliance with DCP 31 has been raised.

11 The applications comprise integrated development and the approval of the NSW Rural Fire Service under the Rural Fires Act 1997 is required. On 30 September 2005 the service advised that it had no objections. The evidence 12 The hearing began with an inspection of the site, followed by an inspection of Winda Woppa generally. A number of particular residential properties in Winda Woppa and Hawks Nest were also inspected.

13 A number of local resident objectors gave oral evidence whilst on site to supplement their written concerns. The expert witnesses also provided some evidence and explanations in relation to the two appeals and associated flora and fauna aspects.

14 Mr G Worth an ecologist provided evidence as the Court appointed expert.

15 On behalf of the respondent council expert evidence was provided by: + Mr M Bell - ecologist + Mr M Brown - town planner 16 On behalf of the applicant expert evidence was provided by: + Mr D Fanning - ecologist + Mr A Darroch - town planner The koala 17 The Scientific Committee ("the committee") established by the TSC Act has identified the koala (Phascolarctos cinereus) as an endangered population in the Hawks Nest and Tea Gardens area, including the Winda Woppa peninsula. In its determination the committee reached the conclusion that the population of nine or ten koalas in Hawks Nest and environs is in immediate danger of extinction. The recovery plan 18 In 2003 the Department of Environment and Conservation (NSW) published the Recovery Plan for the Hawks Nest and Tea Gardens Endangered Koala Population ("the recovery plan"). The recovery plan was intended to be implemented over a three year period to 2006. It is supplementary to a statewide recovery plan.

19 The recovery plan notes that possibly the most important factor influencing koala occurrence in an area is the suite of tree species available as habitat. Whilst all remaining areas of primary habitat are of high conservation value, koala populations can rely heavily on secondary habitat which might include primary and secondary feed trees. Primary feed trees include Swamp Mahogany (Eucalyptus robusta) and Tallowwood (E microcorys). Secondary feed trees include Broadleaved Paper bark (Melaleuca quinquenervia), Blackbutt (E pilularis), Red Bloodwood (Corymbia gummifera), Flooded Gum (E grandis) and Smooth-barked Apple (Angophora costata).

20 Land clearing in the Hawks Nest and Tea Gardens area has led to the fragmentation of much of the koala's habitat. This results in koalas spending an increased amount of time travelling over open ground, leaving them susceptible to dog attack and road kill. 21 The recovery plan identifies the preservation of feed and refuge trees as an important element of the recovery process. Over time, a net gain of koala trees is sought to be achieved and this should help to arrest the decline of the koala population.

22 By its own terms the recovery plan is required to be considered by a consent authority when determining development applications. However, because preparation of the plans did not involve public consultation it should be given less weight than would otherwise be the case, taking into account the findings of McClellan CJ in relation to policy documents in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. The issues 23 In relation to the modification application it is now agreed that Condition 18 can be deleted and that Condition 20 can be amended. Conditions 5 and 21 remain in dispute.

24 Condition 5 requires the preparation of s 88B instruments for each of the four lots and containing requirements for the protection and improvement of koala habitat on the site and the protection of these animals involving: + the provision of a 12 m wide safe koala habitat and access corridor at the rear of the lots including the protection of trees and the exclusion of development therein: + the preparation and implementation of a habitat management and restoration plan; and + provisions relating to the keeping of dogs and associated enclosing fences. 25 Condition 21 seeks to limit all access to the four lots off The Boulevarde by the imposition of a s 88B instrument that would prevent the utilisation of the site's existing 6.3 m rear frontage (in the north eastern corner of Lot 4) to The Anchorage that could otherwise, subject to the provision of easements, provide pedestrian and vehicular access to all four lots.

26 The issue in relation to the subdivision application principally involves the question of whether a species impact statement pursuant to s 78A(8)(b) of the Environmental Planning and Assessment Act 1979 ("the Act") should be provided, taking into account that Winda Woppa comprises habitat for the koala and that the koala is immediate danger of extinction.

27 If a species impact statement is required then the development application would not be valid and a consent would not be able to be issued. If a species impact statement is not required then a merit assessment will be necessary to consider whether the proposed subdivision, taking into account the likely development of the two proposed lots with dwelling houses, would adversely affect the local koala population and its habitat.

28 It is perhaps fortunate that these two applications are being considered together as it provides an opportunity to concurrently deal with some aspects of the koala issues associated with the two sites.

Species impact statement - subdivision application - the koalas 29 The requirements of s 78A(8)(b) of the Act only arise in relation to the subdivision application and require that the development application must be accompanied by: If the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats - a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995 (the TSC Act") . 30 Section 5A of the Act sets out a number of factors that must be taken into account in deciding whether there is likely to be a significant effect, relevantly here, on a threatened species. It was agreed that not all of the listed factors are relevant to this application and on this basis s 5A(1) and (2) provide that: (1) For the purposes of this Act and, in particular, in the administration of ss 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 subs (2), (b) …. (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) …. (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) …. (f) …. (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. (h) …. 31 The above extract from s 5A of the Act is the version in force as at 31 October 2005. (Section 5A was replaced in the Threatened Species Conservation Amendment Act 2002, Act No. 78 of 2002 - see Sch 2 [4]). In my view the changes have no material effect in relation to the matters in issue and I am able to utilise the expert evidence in my consideration of the now applicable factors in s 5A.

32 In relation to factor 2(g), the clearing of native vegetation and the removal of dead wood and dead trees are listed as key threatening processes and this application involves such actions.

33 As for factor 2(a) I accept the evidence of Mr Bell that there are now probably only 12 koalas, possibly as few as 9 or 10, in the Hawks Nest and Tea Gardens locality. Mr Worth and Mr Bell both believed that this is a viable local population. Mr Fanning doubted that the population was viable but would nevertheless accept for the purposes of this assessment that it was.

34 Mr Bell believed that the proposed subdivision and subsequent development of the two lots would place the population at risk of extinction mainly because of the removal of habitat and refuge trees and the destruction of the access corridor presently available through this site. Mr Worth had a similar opinion.

35 Mr Fanning agreed that without any replacement of habitat and refuge trees and in the absence of an appropriately responsive site design there would be some effect on the koalas but disagreed that they would be at risk of extinction. Moreover with the proposed tree retention plus the provision of replacement food and habitat trees (as shown on the vegetation management plan), refuge poles, climbable fences and the proposed dedicated access corridors (as described in the proposed conditions in Exhibit 9), the koalas should be little affected by the subdivision.

36 The evidence of recorded sightings of koalas indicates that this site is used infrequently by them. Mr Fanning referred to this as well as the fact that the koalas are known to frequent other parts of the Winda Woppa peninsula for food and travel to confirm his conclusion. All three experts agreed that the site is part of an area of interconnectivity between habitats.

37 I accept the reasoning provided by Mr Fanning in relation to factor 2(a) and agree that taking into account the ameliorative measures the viable local population of koalas would not be likely to be at risk of extinction.

38 As for factor 2(b) Mr Bell believed that the koalas would be adversely affected by the removal of habitat and refuge trees and the destruction of the vegetated access corridor presently available through this site. As a consequence, the life cycle of the koalas would be at risk, placing the population at risk of extinction. Mr Worth had a similar opinion being mainly concerned at the restriction of movement for koalas resulting from the construction of buildings, making this a greater chokepoint than it already is. They both acknowledged that ameliorative plantings will help but these will take some time to reach maturity.

39 Mr Fanning disagreed, stressing that this is a low frequency use area. He emphasised that koalas move widely and easily and the relevant corridor in this location is the whole width of the Winda Woppa peninsula. Even though it is substantially developed with housing there are numerous access opportunities throughout. He acknowledged that the proposed subdivision and subsequent development of the new lots would result in some reduction in movement potential for the koalas. However, the holistic approach involving ameliorative measures should ensure little disadvantage to them.

40 I again accept the evidence and reasoning of Mr Fanning in relation to factor 2(b) and agree that taking into account the ameliorative measures the life cycle of the local population of koalas would not be adversely affected such that it is likely to be placed at risk of extinction.

41 Factor 2(d) relevantly deals with the habitat of a threatened population and requires: the consideration of the extent of habitat modification or removal; the fragmentation or isolation of other areas of habitat; and the importance of any removed or modified habitat in the context of the long-term survival of the population.

42 The issue of fragmentation or isolation has been largely dealt with in relation to factor 2(b) above. The application involves the clearing of some habitat comprising native vegetation, dead wood and dead trees. I agree that the removal of this habitat is of some importance to the koala population that utilises the Winda Woppa peninsula. Despite this I agree with Mr Fanning that its removal is not critical to the long-term survival of the population.

43 In the circumstances I have decided that for the purposes of s 5A of the Act the proposal is not likely to have a significant effect on the Hawks Nest and Tea Gardens koala population or its habitats. As a consequence I have determined that a species impact statement is not required and the subdivision application can be considered on its merits.

The subdivision and modification applications - koalas generally 44 Section 79C(1) of the Act relevantly requires that in determining this development application for subdivision, the provisions of SEPP 71, the LEP and DCP 31 be taken into consideration. Also, any likely impacts on both the natural and built environments, and social and economic impacts in the locality, should be considered. The objects in s 5 of the Act relevantly include the encouragement, in the public interest, of: + the promotion and co-ordination of the orderly and economic use and development of land, + the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and + ecologically sustainable development. 45 As for the subdivision application, there was no suggestion that it does not meet the particular requirements of the LEP and DCP 31. As for the aims and objectives of the LEP and SEPP 71, together these apply to both applications and indicate that residential development in the form of housing is appropriate provided that ecologically sensitive areas are protected and enhanced. Orderly and economic development of land is encouraged in the light of ecological sustainability.

46 In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClellan CJ discussed the principles of ecologically sustainable development finding that s 79(C)(e) of the EP&A Act obliges decision-makers to have regard to the precautionary principle.

47 In this case it was submitted by the respondent that the precautionary principle should be applied. In Leatch v National Parks and Wildlife Service & Anor [1993] 81 LGERA 270, Stein J said (282) that the principle: is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious. 48 More particularly McClellan CJ explained that the precautionary principle means that: if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. 49 Clearly the decision to allow this subdivision to proceed would be essentially irreversible. The subsequent inevitable development of the six lots in these two applications together would have an effect on the habitat of the koala somewhat greater than that already discussed in the context of s 5A of the EPA Act.

50 The expert evidence provided leaves me in little doubt that without mitigation measures the impacts on the habitat of the koala as presently exists on these lots would be unacceptable, despite the fact that in recent years the koala has been little seen on these sites. Whilst the observation of koalas on these sites and on the peninsula generally lacks scientific certainty I am satisfied that the observations are likely to reasonably reflect the present situation regarding koala activity in this area.

51 Exhibit P contains a number of conditions proffered by the applicant to be incorporated into the existing consent and into the proposed conditions sought by the council to be imposed in relation to the subdivision proposal. Exhibit 23 (Mr Bell's suggestions) suggests further improvements to these conditions. In relation to the modification consent these conditions would replace Condition 5 and in relation to the subdivision application, Condition 7. They deal with corridors for the passage of koalas, planting of trees and the provision of refuge poles, the provision of a landscape plan, the protection of trees during construction, and the form of fences. In addition s 88B easements are to be created so as to provide various easements that will facilitate the passage of koalas across the land.

52 Taking all of the related evidence into account, and preferring as I do that of Mr Fanning, I am satisfied that these proposed mitigation measures would result in a satisfactory balance between habitat retention and replacement and the development of these lots in accordance with their zoning under the LEP. I particularly note that the proposed conditions will provide for the retention and provision of food trees and refuge trees and poles as well as koala friendly fences.

53 The width of the both of these easements were criticised as being too narrow to allow the unhindered growth of canopy trees. The 4 m wide easement between the two proposed new lots was criticised because it would effectively require koalas to travel through a prospective open carport.

54 Whilst I am satisfied that the provision of a total of 6 m (in width) of corridors through proposed Lot 5 is entirely reasonable, the provision of 3 m (in width) of corridor across the rear of Lots 1 - 3 and about halfway across Lot 4 is not sufficient. The corridors through Lot 5 will provide an appropriate balance between the development of the lot and the provision of access for koalas. Lots 1 - 4 are much deeper and larger and are capable of providing a more appropriately sized corridor in conjunction with that on the south side of Lot 5. I have therefore decided that the corridor at the rear of Lots 1 - 4 should be widened by 2 m to a width of 5 m. This will not adversely affect the ability to reasonably develop these lots with houses. In conjunction with the corridor on proposed Lot 5, this will provide a total width of 7 m that should be sufficient to facilitate the planting of appropriate canopy trees which can be supplemented by the planting of other trees on the sites. In my opinion the purpose of the corridor, which is to mainly provide for koalas passing through the site, rather than for a permanent living environment will thus be met.

55 In the circumstances the requirement in Condition 5 of the existing consent for a 12 m wide corridor can be omitted. I also agree that the requirement for dog proof enclosures in its present form is unreasonable. Instead I agree with the applicant's alternative that would prevent dogs gaining access to the now proposed 5 m wide corridor. A similar restriction is to be imposed on the subdivision proposal.

56 I have therefore decided that Condition 5 of the existing consent can be deleted and replaced with Conditions 7.1 - 7.11 (as amended) contained in Exhibit P. Conditions 7.1 - 7.11 in the draft conditions for the subdivision application are similarly amended. Rear access 57 Concerns were expressed that if Condition 21 is deleted and vehicular access made available to the four lots off the Boulevarde this would have adverse impacts on properties that have main or secondary (rear) frontages to The Anchorage. Such impacts would result from additional vehicles and vehicles with boats on trailers using this street not only for access but also for parking. In this context I note that there are other properties fronting the Boulevarde that have rear access off the Anchorage.

58 The applicant has advised that a contract of sale has been signed for Lot 1 and rear access to this lot is not sought.

59 In my opinion the likely impacts from the suggested likely activities in The Anchorage are not likely to be sufficient to prohibit the access sought. I have reached this conclusion accepting the evidence of Mr Darroch and taking into account that The Anchorage is already used to a degree in the manner the subject of criticism. If there are concerns about inappropriate parking in the street that is a matter for the council. 60 I have therefore decided that Condition 21 should be amended so as to only deny rear access to Lot 1. Conclusion 61 For the above reasons I have decided that the development application for subdivision should be approved subject to the conditions provided by the respondent with amendments essentially in accordance with Exhibit P and partly Exhibit 23 as discussed above. The subdivision approval can be amended by the deletion of Condition 18, and the amendment/replacement of Conditions 4, 5 20 and 21.

62 In my opinion these two conditioned consents will constitute an appropriate response to the recovery plan taking into account the zoning of the land and its objectives. They will represent a satisfactory balance between the protection of the natural environment and the orderly and economic development of land. Orders 63 The orders of the Court are therefore: 1. The appeals are upheld. 2. Development application No. 388/2005 for the subdivision of Lot 15 DP115582, No. 5 The Anchorage, Winda Woppa, into two lots is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Development consent No. 388/2004 for the subdivision of Lot 1 DP 115595, No. 91 The Boulevarde, Winda Woppa, into four lots is amended in accordance with Annexure B hereto. 4. Exhibits 9, B, O and P are retained. ___________________ T A Bly Commissioner of the Court rjs

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.

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Judgment (53 paragraphs)

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Cases Cited (2)