Arcidiacono as Trustees for the Arcidiacono Family Trust v Blacktown City Council

The Site

1. The site is an irregular, triangular shape, located between the Great Western Highway (northern boundary), Reservoir Road (eastern boundary) and Honeman Close (southern boundary).
2. The amended Subdivision Plan identifies land resumed on the site for RMS purposes (lane widening), which does not form part of any of the proposed lots in the DA. This area set aside for (RMS) resumption of land is a triangular shape, located along Reservoir Road to the corner of the Great Western Highway.
3. The site generally slopes towards the northwest. An undefined/unnamed creek is aligned along the site's northern boundary, which drains from Reservoir Road, through a poorly defined channel, into a heavily overgrown pond, then discharges into the proposed vegetation reserve (proposed Lot 3) in the west of the site.
4. Across most of the site are native vegetation species interspersed with introduced weeds and non-native/exotic species. The western and central portion of the site, and also along the drainage line, is heavily vegetated, which thins in canopy cover in the south-eastern portion of the site.
5. An abandoned structure that once formed part of a previous development is located in the south-eastern portion of the site. The site shows evidence of its previous uses, both agricultural and industrial/commercial (service station) activity.
6. To the north and east of the site are relatively new industrial and commercial developments, and to the south of the site is former agricultural land, with similar vegetation species as found on the site.
7. The southern boundary of the site is adjacent for a length of 443 m to Honeman Close, although in its total length now consists of three discontinuous sections that extend well beyond the site. As described by the Heritage Council, Honeman Close is currently "a 'two-laned asphalted pavement with mostly unformed edges and flanked by wide gravelled and grassed shoulders". The pavement is an example of convict built infrastructure of the colonial era. Despite its dilapidated appearance, there are no known or current plans to activate or improve the pavement surface.

Relevant Planning Controls

1. The requirements of s 4.15 of the EP&A Act, with respect to the proposed development are relevant in consideration by the Court on the appeal of this DA.
2. The application is lodged as a concept development, pursuant to s 4.22(1) of the EP&A Act, with Stage 1 the subject of assessment under this appeal, pursuant to s 4.22(2), below: 4.22 Concept development applications (1) For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications. (2) In the case of a staged development, the application may set out detailed proposals for the first stage of development. (3) A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application. (4) If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection. (5) The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications. Note. The proposals for detailed development of the site will require further consideration under section 4.15 when a subsequent development application is lodged (subject to subsection (2)).
3. Pursuant to s 4A of the Heritage Act 1977 (Heritage Act), Honeman Close is identified as a site of 'State Significance' and the associated land was listed on the State Heritage Register on 27 June 2014, as maintained by the Heritage Council. The parties agree that with the amendment to the plans of the proposed development, deleting access to/from Honeman Close, the requirements of s 140 of the Heritage Act are no longer pressed.
4. The potential impact to Honeman Close (portion adjacent to the site) is relevant for the Courts consideration, pursuant to s 57 of the Heritage Act: 57 Effect of interim heritage orders and listing on State Heritage Register (1) When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3: (a) demolish the building or work, (b) damage or despoil the place, precinct or land, or any part of the place, precinct or land, (c) move, damage or destroy the relic or moveable object, (d) excavate any land for the purpose of exposing or moving the relic, (e) carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct, (f) alter the building, work, relic or moveable object, (g) display any notice or advertisement on the place, building, work, relic, moveable object or land, or in the precinct, (h) damage or destroy any tree or other vegetation on or remove any tree or other vegetation from the place, precinct or land. …..
5. As the proposed entry/egress to the site is now located off Reservoir Road, pursuant to s 138 of the Roads Act 1993 (Roads Act), the proposed development requires approval for any associated works. Based on the amended plans, whereby vehicular access is restricted to Reservoir Road, RMS raises no further issue (as raised in their letter to Council, dated 15 February 2019), with its requirements dealt with by conditions of consent.
6. The proposed development relies on biobanking to address the proposed loss of core habitat, pursuant to s 127ZJ of the Threatened Species Conservation Act 1995 (TSC Act). 127ZJ Development for which biobanking is available For the purposes of this Part, development for which biobanking is available means any development (whether or not development that is a project to which Part 3A of the Planning Act applies or development that is State significant infrastructure under Part 5.1 of that Act, development that requires development consent under Part 4 of that Act or development that is an activity to which Part 5 of that Act applies) other than the following: (a) any clearing of native vegetation that must not be carried out except in accordance with a development consent granted in accordance with the Native Vegetation Act 2003 or a property vegetation plan under that Act, (b) development declared by the regulations to be development in respect of which biobanking is not available. Note. A biobanking statement may be issued in respect of any development that is development for which biobanking is available. However, participation in the scheme is voluntary (that is, it is not necessary to obtain a biobanking statement in respect of the development). If a statement is obtained, the proponent of the development obtains the benefit of the statement (as set out in sections 127ZO and 127ZP). The conditions of the statement will be incorporated into the conditions of the development consent or approval for the activity given under the Planning Act.
7. The proposed development relies on Part 7A of the TSC Act, as it relates to biodiversity banking, described below as follows: This Part provides for the establishment of a biodiversity banking and offsets scheme (referred to as the biobanking scheme). The biobanking scheme has the following key elements: (a) the establishment of biobank sites on land by means of biobanking agreements entered into between the Minister and the owners of the lands concerned, (b) the creation of biodiversity credits in respect of management actions carried out or proposed to be carried out on or in respect of biobank sites that improve biodiversity values, (c) a system that enables those biodiversity credits, once created and registered, to be traded (including by being purchased by developers) and used as an offset against the impact of proposed development on biodiversity values, (d) the establishment of a biobanking assessment methodology, by order of the Minister published in the Gazette, for the purpose of determining both the number of biodiversity credits that may be created in respect of management actions or proposed management actions and the number of biodiversity credits that must be retired in connection with a development in order to ensure that it improves or maintains biodiversity values. This Part provides for a procedure under which a person may apply to the Chief Executive for a biobanking statement in respect of a development proposal. If a biobanking statement is issued, it will not be necessary for the development to be assessed in accordance with the threatened species protection measures provided for by Parts 4 and 5 of the Planning Act. However, the developer may be required to purchase and retire sufficient biodiversity credits to ensure that the impact of the development on biodiversity values is offset and to take other onsite measures to minimise any negative impact on biodiversity values. Biobanking statements may also be issued in respect of projects proposed to be approved under Part 3A or Part 5.1 of the Planning Act.
8. The site is located within the IN1 General Industrial zone, on lands subject to the State Environmental Planning Policy (Western Sydney Employment Area) 2009 (WSEA SEPP). Pursuant to cl 11 of the WSEA SEPP, the proposed development is permissible and subject to the following objectives of the zone: 11 Zone objectives and land use table (1) The Table at the end of this clause specifies for each zone: (a) the objectives for development, and (b) development that may be carried out without consent, and (c) development that may be carried out only with consent, and (d) development that is prohibited. (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. (3) In the Table at the end of this clause: (a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and (b) a reference to a type of building or other thing does not include (despite any definition in this Policy) a reference to a type of building or other thing referred to separately in the Table in relation to the same zone. (4) This clause is subject to the other provisions of this Policy. Land Use Table Zone IN1 General Industrial 1 Objectives of zone •To facilitate a wide range of employment-generating development including industrial, manufacturing, warehousing, storage and research uses and ancillary office space. •To encourage employment opportunities along motorway corridors, including the M7 and M4. •To minimise any adverse effect of industry on other land uses. •To facilitate road network links to the M7 and M4 Motorways. •To encourage a high standard of development that does not prejudice the sustainability of other enterprises or the environment. •To provide for small-scale local services such as commercial, retail and community facilities (including child care facilities) that service or support the needs of employment-generating uses in the zone.
9. Of particular relevance for the Courts consideration in the consideration of this DA, are the aims of the policy described in cl 3(2)(f) of the WSEA SEPP: 3 Aims of Policy (1) This Policy aims to protect and enhance the land to which this Policy applies (the Western Sydney Employment Area) for employment purposes. (2) The particular aims of this Policy are as follows: … (f) to conserve and rehabilitate areas that have a high biodiversity or heritage or cultural value, in particular areas of remnant vegetation.
10. Pursuant to cl 8(2) of the WSEA SEPP, this is the guiding planning instrument relevant to the proposed development, and prevails where there is any inconsistency with other planning instruments, such as the (Blacktown) Local Environmental Plan: 8 Relationship to other environmental planning instruments (1) State Environmental Planning Policy No 1 - Development Standards does not apply to the land to which this Policy applies. (2) This Policy to prevail over LEPs In the event of an inconsistency between this Policy and a local environmental plan or deemed environmental planning instrument that applies to the land to which this Policy applies, this Policy prevails to the extent of the inconsistency.
11. Schedule 4(4) of the WSEA SEPP is relevant for the Courts consideration as it provides for the protection of biodiversity as established in the (Huntingwood Precinct) Development Control Plan. 4 Biodiversity (1) In making provision for or with respect to biodiversity, a development control plan must address the following: (a) the existing natural environment, including any remnant vegetation, threatened species, endangered ecological communities, critical habitat, wildlife corridors and riparian areas, (b) opportunities to offset the impact of any clearing of native vegetation, (c) species or kinds of trees or other vegetation to which clause 32 applies. (2) Where appropriate, the development control plan must provide for the preparation of management plans for the rehabilitation of any communities of flora and fauna so that ecosystem diversity is maintained.
12. The zone objectives in the Blacktown Local Environmental Plan 2015 (BLEP) are relevant, where consistent with the WSEA SEPP. Zone IN1 General Industrial 1 Objectives of zone •To provide a wide range of industrial and warehouse land uses. •To encourage employment opportunities. •To minimise any adverse effect of industry on other land uses. •To support and protect industrial land for industrial uses. •To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. •To minimise adverse impacts on the natural environment.
13. Pursuant to cl 18 of the WSEA SEPP, the site is mapped as part of a precinct described within the Huntingwood Precinct Development Control Plan 2011 (HPDCP), of which the relevant controls apply, particularly those relating to biodiversity. The HPDCP is prepared pursuant to the WSEA SEPP, covers the entire Huntingwood Precinct, also known as Precinct 3. The aims and objectives of the HPDCP are provided in s 1.5 below, with the objectives (b), (d) and (e) considered the most relevant as it relates to the site: (a) Promote economic growth and employment opportunities consistent with the objectives of the Metropolitan Plan for Sydney 2036 and the WSEA SEPP. (b) Ensure the orderly provision of infrastructure and services in a manner that minimises impacts on the environment. (c) Ensure the orderly provision of infrastructure and services in a manner that minimises cost to government. (d) Ensure ecologically sustainable development that actively anticipates and prevents damage to the environment. (e) Conserve areas of core habitat and archaeological significance and minimise the impact of development in the Precinct on these areas. (f) Ensure the traffic and public transport needs for the Precinct are achieved. (g) Ensure high quality urban design outcomes are achieved. (h) Allow for the provision of adequate landscaped areas for the use and enjoyment of the working population.

Evidence

1. The Court heard from the following experts: 1. Ecology - Dr David Robertson for the applicant; and Dr Meredith Henderson for the respondent. 2. Heritage - Ms Pamela Kottaras for the applicant; and Ms Anna London for the respondent. 3. Drainage - Dr Daniel Martens for the applicant; and Mr Tony Merrilees for the respondent.

Have the biodiversity values of the site been adequately protected?

1. There are two separate issues that the Court must have regard in this appeal that relate to native vegetation identified on the site, namely: protection/conservation of the ecological habitat; and biobanking credits for loss of habitat. The first issue relates to whether the area (Lot 3) proposed to be dedicated as a 'vegetation reserve' for the protection of sensitive ecological habitat on the site is sufficient. The second issue, which is interlinked with the first issue is whether the reliance on a biodiversity banking scheme to offset through the purchase of 'credits' the loss of 'core' habitat/conservation areas on the site as proposed for this development, is appropriate.
2. Figure 4 of the HPDCP maps 'conservation areas' and 'employment lands' across the Precinct, which includes the site. The conservation areas mapped on the site include: the entirety of proposed Lot 3, to be known as a 'vegetation reserve'; and at least half of the area described as Lots 1 and 2.
3. Endangered Ecological Communities (EEC's) are listed under both the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and (originally) the TSC Act. There are two EEC's identified on the site, namely:

• Shale Plains Woodland (Cumberland Plain Woodland), and
• Alluvial Woodland (Sydney Coastal River Flat Forest).

1. The Revised Species Impact Assessment (SIS) in Exhibit D identifies the site as having areas of high biodiversity value, which includes vegetation species that belong to both the Cumberland Plain Woodland (CPW); and the River Flat Forest (RFF).
2. The species survey which supports the SIS observed 72 native flora species on the site, although none are identified as threatened. Also, observed on site, were two threatened fauna species, namely the Eastern Bentwing, deemed as vulnerable, and the Cumberland Plain Snail, deemed as endangered under the TSC Act. There are several other fauna species that have the potential to be onsite, however were not observed during the survey.
3. The site is mapped (Figure 6 of the HPDCP) as having the majority of the western and central portion of the site identified as 'core habitat', with the remainder of the site, except the south-west corner, mapped as 'support to core habitat and remnant vegetation'. The area mapped as core habitat equates to areas mapped as high biodiversity value and also referred to as 'conservation area'. The HPDCP recognises that not all areas containing threatened species are consistent with the definition of an EEC under the TSC Act, and specifically that "Some of the areas mapped as support for core habitat conservation significance class, and all areas of other remnant vegetation were highly modified and no longer possess a sufficiently diverse seed bank to naturally regenerate to a near natural composition and structure".
4. The mapped distinction between the area mapped as conservation/core habitat/high biodiversity value and the other habitat areas on the site is referred to by the ecology experts as the 'DCP line'.
5. In total, the site is mapped as having 3.02 Ha (equivalent to 30,200 m2) of CPW habitat, and 0.27 Ha (~2,700 m2) of RFF habitat. Of that, 2.21 Ha and 0.23 Ha is identified as of moderate condition for the CPW and RFF habitats, respectively. The proposed development seeks to remove from the site 3 Ha and 0.5 Ha of CPW and RFF habitats, respectively. The SIS considers that the loss of a large area of CPW and RFF habitat from the site will be conserved and enhanced in 'a more appropriate location for conservation, in perpetuity', through the biobanking offset scheme.
6. The SIS identifies the potential impact to the following fauna species due to the loss of these habitats on the site, being: Cumberland Plain Land Snail (observed on the site); Swift Parrot; Little Eagle; Grey-headed Flying Fox; Eastern Bentwing Bat (observed on the site); Eastern Freetail-bat; and Southern Myotis.
7. The ecology experts agree that the core habitat mapped on the site contains native vegetation which is in better condition with less weed/exotic species, than the areas in the east of the site (beyond the DCP line), which are in a poorer, more weedy condition. The experts also recognise that the area of 'better' condition native vegetation does extend beyond proposed Lot 3. The survey in the SIS shows consistency with the mapping of core habitats, as shown in Figure 6 of the HPDCP.
8. The experts also agree that there is no direct vegetative or hydraulic connection between the core habitat mapped on the site and the core habitats mapped to the south of the site, due to the prevalence of exotic grassland between Honeman Close and these core habitat on an adjacent lot.
9. The experts disagree however, whether the entire area west of the 'DCP line', mapped as core habitat in the HPDCP, should be protected by restricting development to east of that delineation and whether proposed Lot 3 as a vegetation reserve is sufficient to protect the EEC's on the site.
10. Dr Robertson states that the area proposed as Lot 3 will be a 'vegetation reserve', which includes the majority of 'good condition' core habitat. He considers the CPW and RFF on the site to have limited conservation value due to their location between two busy roads and as a consequence of previous activity on the site, including a lack of active maintenance of weed/exotic species. In his opinion, the loss of these habitats on Lots 1 and 2 will not have an overall impact to the protection of the EEC's within the Precinct, because there is limited connectivity to other core habitats in the Precinct, and as the SIS identifies, the site is only a small proportion of the area of these EEC's found in the locality.
11. Mr Clay contends that development on the site is not economically viable with an area less than that proposed for Lots 1 and 2. Therefore, a larger area dedicated to a vegetation reserve is contrary to the objectives of the IN1 zone.
12. Dr Robertson states that any core habitat lost from proposed Lots 1 and 2 is 'protected' in terms of the species associated with these EEC's through a biobanking scheme.
13. In his assessment of the appropriateness of utilising biobanking to offset loss of EEC on the site, he relies on s 6.1 of the HPDCP, which states "Development in the Precinct should occur in a manner that maintains ecosystem diversity as practical as possible". He also refers to the validity of the proposed biobanking scheme to offset any biodiversity impact in the site, "These conservation areas are zoned General Industrial under the WSEA SEPP. Therefore development in these conservation areas, if they are not part of Riparian corridors, may be possible whilst maintaining ecosystem diversity, so long as impacts are suitably offset through positive actions to enhance and conserve biodiversity values elsewhere."
14. The proposed development seeks to address the loss of EEC (core) habitat on the site by utilising a biobanking scheme that is managed by OEH. The scheme will purchase and retire sufficient 'credits' to compensate for the clearance of native vegetation on the site. The applicant invests an agreed value of the credits in a trust fund, managed by the NSW Environment Trust, which is then used to maintain agreed sites to protect and conserve native vegetation. A biobanking credits report was prepared according to the requirements of the Biobanking Assessment Methodology 2014 (BBAM).
15. The biobanking offset credits assessed for the proposed development is provided in Exhibit D. The proposal includes a biobanking credit report with the following ecosystem and species credits summary, based on the BBAM, as follows: Ecosystem credits summary Plant Community type Area (ha) Credits required Red flag Forest Red Gum - Rough-barked apple grassy woodland on alluvial flats of the Cumberland Plan, Sydney Basin Bioregion 0.27 4.94 No Forest Red Gum - Rough -barked apple grassy woodland on alluvial flats of the Cumberland Plan, Sydney Basin Bioregion 0.23 8.00 Yes Grey Box - Forest Red Gum grassy woodland on alluvial flats of the Cumberland Plan, Sydney Basin Bioregion 3.02 112.00 Yes Total 3.52 125.00

Species credit summary Common Name Scientific name Extent of impact Ha or individuals Number of species credits created Cumberland Plain Land Snail Meridolum corneovirens 3.02 39 Total 39

1. The respondent has raised no issue with the proposed biobanking offset credits as calculated for the proposed development. It is agreed that the BBAM provides a consistent rule based approach for determining offsets. Dr Henderson has no issue with the concept of biobanking, except to state that the effectiveness of biobanking to protect species associated with an EEC depends on the sufficiency of the trust fund to ensure enough credits are purchased, and therefore effective maintenance of the protected area. In addition, she holds a concern with the proposed development relying on biobanking to protect the EEC's outside of the Precinct, rather than conservation occurring on the site within the 'DCP line'.
2. Dr Henderson considers that as the proposed development does not protect the entirety of the mapped core habitat in the Precinct, it contradicts the biodiversity objectives (s 6.1) in the HDCP below: (a) Conserve and improve areas of high biological value, in particular to protect: (i) the 2 critically endangered ecological communities - Cumberland Plain Woodland and River-Flat Eucalypt Forest on Coastal Flood Plains; (ii) potential habitats for the threatened Cumberland Plain Land Snail; (iii) habitat for 3 threatened species of microchiropteran bats and potentially 3 additional threatened species; (iv) potential habitat for the threatened plant Pimelea spicata; and (v) riparian zones that contribute maintaining ecological functions and connectivity in the locality. (b) Retain, and where possible, enhance connectivity along riparian corridors between conservation areas and adjacent remnant vegetation. (c) Promote ecologically sustainable development of the Precinct and ensure adequate protection of the conservation areas through the use of appropriate buffer zones.
3. Dr Henderson contends that the proposed development has not satisfied the controls as set out in the HPDCP that relate to biodiversity, in particular (a) and (b) below: (a) Conservation areas shown in Figure 4 are designated to protect and maintain the biodiversity values of the Precinct which is informed by Figure 13 and Figure 14. (b) Conservation Areas are to be maintained as part of the private properties, unless an alternative conservation/offset mechanism can be negotiated at the development application stage. Any proposed conservation/offset areas should be managed to maintain or improve biodiversity values in accordance with DECC BioBanking Scheme under Part 7A of the TSC Act 1995. Conservation is not negotiable in the riparian corridors.
4. She considers that protection of the core habitat on the site is the better option for conservation of the EEC's within the Precinct. Her concern in particular relates to the proposed retirement of offset credits as part of the biobanking scheme being located outside the Precinct, which therefore does not protect biodiversity in the Precinct.
5. Dr Robertson acknowledged that one Cumberland Plain Land Snail (CPLS) shell was identified in the west of the site, although is located within the nominated vegetation reserve. He considers the proposed separate species credit for the CPLS is sufficient to address any potential impact to this species.

Findings

1. Section 6 of the HPDCP relates specifically to biodiversity within the Precinct, and states "Schedule 4 of the WSEA SEPP requires the DCP to make provision for ecological issues and biological diversity. Consideration must be given to the existing natural environment, including any remnant vegetation, and where appropriate, ecosystem diversity should be maintained".
2. I accept that based on the maps provided in the HPDCP, any reference to 'conservation areas' is generally equivalent to areas referred to as 'core habitats', and that these areas contain species of high biodiversity value. I also accept these areas include habitats that belong to the CPW and RFF EEC's.
3. I observe, from the onsite view and understanding the mapped areas of core habitat in the HPDCP, that the EEC's are relatively isolated pockets in the Precinct, due to the proximity of existing infrastructure (roads) and newer, approved industrial/commercial developments, including those along Honeman Close.
4. The land to the south of the site, which has a relatively large area of mapped core habitat, is separated from the site by Honeman Close and a large expanse of exotic grassed vegetation. I therefore agree with the experts that the connectivity of the core habitats between site and other similar habitats in the Precinct is limited and there is no direct hydraulic connection.
5. I do not consider that a larger area of 'vegetation reserve' (proposed Lot 3), such as up to the 'DCP line' as suggested by Dr Henderson, would improve the connectivity or survivability between core habitats mapped in the Precinct or necessarily provide any additional benefit to species protection in the EEC's on the site. Lot 3 seeks to preserve the core habitat of the best condition and an extension of this area would not necessarily result in better protection of the species due to the proximity of high impact infrastructure and already degraded nature of the EEC on the site. I agree with Dr Robertson that protection of the relevant species is appropriate and can be provided on lands that provide sufficient space/condition for the species to flourish and are properly maintained/dedicated specifically for this purpose. The Precinct does not currently offer any sites for biobanking, and therefore the applicant must consider sites beyond the Precinct as a viable option.
6. The HPDCP (s 6) has regard to the protection of threatened species, and states "It is unlikely that all the threatened species recorded or likely to occur in the locality would be affected by development within the Precinct provided the areas of core habitat are conserved". In addition the HPDCP states "The areas of high or other biodiversity values have been classified to protect and maintain the biodiversity values of the Precinct." I do not consider the approach adopted by the applicant, which seeks to protect core habitat in a vegetation reserve (Lot 3) together with a biobanking scheme to address any species potentially lost on the site is contrary to the intention of the HPDCP.
7. I also do not share Ms Henderson's concern that protecting the EEC only within the Precinct is a required approach considering how limited the area of the core habitat is within the Precinct due to previous development approvals and that there are no areas currently designated in the Precinct for this purpose.
8. The HPDCP is not specific nor clear on how it seeks to protect EEC's mapped within the Precinct. It acknowledges that these EEC's currently exist across the Precinct, and yet has zoned the entire Precinct, including these areas mapped as core habitat/conservation areas, as IN1 General Industrial zone. The HPDCP also provides for offset mechanisms (to conserve EEC's) to be negotiated for development that affects biodiversity within the Precinct, pursuant to Pt 7A of the TSC Act. The HPDCP considers protecting conservation areas within the Precinct, and yet makes no requirement for ensuring conservation mechanisms are restricted to those areas beyond core habitat within the Precinct. I therefore conclude that at a higher level the HPDCP seeks to conserve native vegetation and threatened species within the Precinct where possible, however practically, it recognises that this may not always be achieved and therefore provides an appropriate offsetting mechanisms to achieve the conservation aims relating to the loss of any native vegetation.
9. I acknowledge that there are no registered biobank sites, as defined in the TSC Act, which are located within the Precinct and that the HPDCP would have been aware of this when the objectives and controls, specifically biodiversity control (b) was prepared. Therefore, I must presume that the HPDCP makes provision for biobanking credits to be retired outside of the Precinct, as proposed by the applicant.
10. Further to this, the provisions of the TSC Act make no reference to a requirement for offsets to be purchased and retired within the same area/locality or Precinct as where the species would be impacted. Therefore, I can find no inconsistency with the TSC Act or the HPDCP for the proposed biobanking scheme to retire credits outside the Precinct.
11. I therefore consider that the proposed area of core habitat protected in Lot 3, as a vegetation reserve, is acceptable and sufficient to satisfy the relevant objectives of the HDCP, specifically (e) in the general objectives, and (b) in the biodiversity objectives, particularly when combined with the proposed biobanking credits. I accept that the retained native vegetation in proposed Lot 3 will be maintained appropriately as described in the Vegetation Management Plan, which is a condition of consent.
12. I now must address the second issue to be resolved. With regards to the achievement of the other relevant objectives provided in the HPDCP, I must consider whether the proposed conservation method utilising a biobanking scheme is sufficient to satisfy these objectives, and thereby conserve the EEC's which will be lost on the site.
13. The applicant had the choice between two possible routes for addressing the proposed impacts on threatened species and communities as a consequence of the proposed development: through preparation of an SIS; or by obtaining a Biobanking Statement from the Chief Executive of OEH. To the Courts knowledge the applicant has not requested the issuance of a Biobanking Statement from OEH. Therefore, the applicant has sort to follow the SIS path. A similar approach was taken in Denning Tweed Heads Pty Ltd v Tweed Shire Council [2018] NSWLEC 1108 (Denning) as considered by Commissioner O'Neill.
14. As the proposal does not include an application for a Biobanking Statement under the TSC Act, consequently the applicant does not have the benefit of s 127ZO(5) of the TSC Act. I therefore must consider the likely impact of the development on biodiversity values pursuant to s 4.15(1)(b) of the EP&A Act.
15. Commissioner O'Neill in Denning at [110] helpfully describes the significance of assessing the potential impact to the biodiversity value of an area as a result of development, which is designated as a red flag under the BBAM. [110] An area of land is regarded as a red flag area under the BBAM if it contains a landscape feature, native vegetation or threatened species and populations listed in section 9.2.2 of the BBAM. Where the site includes a red flag area and the development will have an adverse impact on that area, the development is not to be regarded as improving or maintaining biodiversity values unless the Chief Executive of OEH makes all of the relevant determinations set out in sections 9.2.4.1(b), 9.2.5, 9.2.6 and 9.2.7, including that where the red flag area contains native vegetation and the proposal will have an adverse impact on that vegetation, that the viability of biodiversity values in the red flag area is low or not viable. The viability of biodiversity values in an area depends on the condition of the vegetation, the size of the area of biodiversity values and its isolation, the current or proposed tenure and zoning under any relevant planning instrument, current and proposed surrounding land use, and whether mechanisms and funds are available to manage low viability sites such that their viability is improved over time.
16. As shown in the biobanking credit report, the site is designated with three red flags for the Grey Box (2) and Forest Red Gum (1) habitats. The red flags are raised due to the extent of proposed clearing (>70%).
17. The experts did not explore in detail the issue of the red flags, and therefore the Court can only surmise based on the evidence before it, whether the proposal provides an appropriate mitigation strategy to address the loss of EEC's on the site as proposed by this development.
18. The parties and I accept that had the DA been made one day later, the proposed development would be subject to the provision of the Biodiversity Conservation Act 2016 (BC Act), which does not provide for biobanking, as permitted under the TSC Act. However, as the application was made before the repeal of the TSC Act and there are savings provisions in the BC Act, biobanking is a legally acceptable option available to the applicant. I also note that the HPDCP expressly allows for biobanking as an option to protect EEC's and core habitats in zones where industrial/commercial developments are relevant, as the IN1 zone relevant to the site.
19. Therefore, the issue that the Court must consider relates to whether the proposed biobanking scheme including calculated credits is a reasonable and an acceptable approach to protect and conserve the species of the identified EEC's that will be lost on the site due to the proposed development.
20. The experts agree and I accept that the development proposes to remove a portion of the native vegetation from proposed Lots 1 and 2, including that which has been mapped as core habitat (in the HDCP), and that could potentially contain flora and fauna species that belong to the CPW and RFF habitats, although their existence is likely limited based on the survey. The experts also agree that the areas mapped as core habitat contain threatened fauna species, namely the CPLS and Eastern Bentwing.
21. On questioning, Dr Robertson assures the Court that the proposed credits are not affected by any potential double counting or trust fund issues, which has been a criticism of the biobanking scheme, as alluded to in Timpag Investments Pty Limited v Liverpool City Council [2018] NSWLEC 1296 by Acting Commissioners Adam and Douglas at [143] and [146], and suggested by Dr Henderson.
22. I accept the assessment provided in the SIS that, while acknowledging there is little known about the CPLS, the proposed development will not significantly impact the viability of the species, as there are several areas beyond the site where the species is more prevalent, such as Prospect and Kemps Creek Nature Reserve, which are protected. Due to the limited identification in Lot 3 and roaming area of the species, the proposed development will not likely detrimentally impact the survival of this species.
23. I observed onsite that between the site and the nearest area of CPW mapped as core habitat located to the south of the site, there is a large expanse of exotic grassland, over which the SIS suggests this species will not travel. I also accept that the potential impact to the CPLS has been addressed through separate species credits (as part of the proposed biobanking).
24. I accept the assessment of Dr Robertson, and as detailed in the SIS, that the other fauna species potentially impacted by the proposed development are more mobile (able to access nearby core habitats), and also with the improved maintenance of the 'vegetation reserve' (as detailed in the vegetation management plan in Exhibit E, including more nesting hollows and removal of weeds/exotic vegetation), any threatened fauna will not be further threatened by the proposed development. I also accept that a larger expanse of the core habitat preserved on the site would not necessarily have any additional benefit to these species due to the proximity to noisy, busy infrastructure and other developments that do not benefit these species.
25. I am satisfied that the biobanking assessment in the credit transfer report with the required credits is consistent with the BBAM and sufficient to offset the loss of native vegetation/species on the site as a result of the proposed development. This credit calculation is based on the SIS (Exhibit D) and achieves the biodiversity controls (a) and (b) in the HPDCP.
26. I am also satisfied that the proposed amended conditions of consent are consistent with this assessment and relate to achieving the objectives of the HPDCP.
27. I accept the proposal to conserve and manage the residual native vegetation on the site within Lot 3 as described in the Vegetation Management Plan, and the proposed biobanking scheme, to purchase and retire 125 biobanking credit points, together represents an appropriate mitigation strategy to managing core habitat and EEC's mapped on the site. I make the point that my consideration and satisfaction is based on and requires both the conservation of (including the area of) native vegetation in Lot 3 dedicated as a 'vegetation reserve' and the proposed biobanking scheme as designed.
28. I am therefore satisfied that the proposed development is consistent with the objectives of the zone and the aims, and specifically achieves cl 3(2)(f), of the WSEA SEPP.
29. Further to this, as I find no inconsistency with the HPDCP, I therefore conclude that Sch 4(4) of the WSEA SEPP, which provides for the protection of biodiversity to be established in a development control plan, is achieved.
30. Therefore, by resolution of the issues that relate to sufficiency of the proposed vegetation reserve in Lot 3 and proposed biobanking scheme, I find the proposed development satisfies the relevant requirements of s 4.15 of the EP&A Act.

Is the proposed (10 m) vegetation buffer sufficient to screen the proposed development from the heritage item?

1. The parties accept that the portion of Honeman Close located adjacent to the site along its southern boundary, is a heritage item listed on the State Heritage Register, pursuant to s 31 of the Heritage Act.
2. The heritage experts agree that, as shown in the amended plans, the proposed relocation of the vehicular access away from Honeman Close benefits this heritage item and resolves the requirement for concurrence from OEH, pursuant to s 4.46 of the EP&A Act.
3. The experts also agree that the proposed 'vegetation buffer' on Lot 2 is intended to screen rather than obscure the proposed development.
4. However, the experts do not agree whether the proposed 10 m buffer along the southern boundary within Lot 2, consisting of native vegetation species, is sufficient to shield sightlines from the heritage item towards the proposed development (Stage 1), which is under appeal.
5. Ms London considers the proposed 10 m buffer is insufficient because it will result in adverse impacts to the character of the heritage item and its aesthetic (visual) values. She contends that the site borrows from the aesthetic values of Honeman Close, and that the 'undeveloped, bucolic character of the Former Great Western Road' would be detrimentally impacted. She seeks a 20 m buffer to effectively screen the proposed development.
6. Ms London agreed that there is no scientific basis for her submission of a 20 m buffer, and that there is no specific policy that can be referred to that has informed her decision. She relies on an assessment made previously by OEH on the 'likely' required dimension of a vegetation buffer, based on other developments in the area, as recommended in a letter to Council in response to notification of the development.
7. The respondent during the site view took the Court to 'Wet n Wild', a nearby development that has a variable width vegetation buffer to screen the development from the road. The ecological experts however agree that this type of vegetation is not what is proposed on the site and not necessarily reflective of the type of screening that the proposed development will achieve with variable height/space native species.
8. In response to Ms London's concern of providing a sufficient screen that relies on natural propagation of (native) vegetation species which takes considerable time to develop, the ecology experts agreed to provide more detail to the landscape plan, showing optimally spaced/height of native species to be placed in the buffer. This resulted in amendment to the planting schedule in Exhibit 15.

Findings

1. The respondent accepts that the Heritage Council does not have a concurrence responsibility for the DA under appeal, however contends that there are heritage impacts to Honeman Close, a listed heritage item. In Stamford Property Services Pty Ltd v Mulpha Australia Ltd [2019] NSWCA 141, Lemming JA describes, relevantly for this appeal at [94], the responsibility of the Heritage Council in providing concurrence for development that occurs beyond the land listed as a heritage item: [94] I conclude that Stamford's construction is the legal meaning of the paragraph, that "land on which the building is situated" means the part of the lot on which the building has been built and not the whole of the cadastral lot. That construction best accords with the focus upon physical activities taking place in the physical landscape in s 57(1), as well as respecting the fact that specific provision is made for the protection of the "site" or "curtilage" of the listed building. It follows that the Heritage Council correctly proceeded on the basis that its approval was not required for activities proposed by Stamford on that part of Lot 1 DP 839564 other than the site and curtilage of the Old Health Department Building.
2. The Council, on the advice of its heritage expert (Ms London), considers that the proposed 10 m vegetation buffer along the southern boundary of Lot 2 is insufficient to screen the proposed development on Lot 1, when viewed from Honeman Close.
3. In the Stamford judgement, Leeming JA, McCallum JA, and Emmett AJA state "The prohibition on carrying out development without heritage approval in s 57(1)(e) of the Heritage Act applies only to the part of the land on which the heritage listed building stands, and not to the whole of the cadastral lot."
4. In Scully v Leichhardt Council (1994) 85 LGERA 109 at [110] Pearlman CJ describes the meaning of land as: [110] The word 'land' is a word of general meaning. It does not of itself suggest any specific limitation of size or measurement or any specifically identifiable area, such as is suggested by the word 'allotment'. It is necessary, then, to consider the context in which the word appears, and the scope and purpose of the relevant statutory provisions, in order to determine how the word 'land' is to be construed.
5. The experts agree that the proposed development will not directly damage the land associated with the heritage item, as there are no works proposed that directly relate to the curtilage of Honeman Close. The issue in dispute is therefore whether there is an indirect aesthetic impact, primarily visual.
6. I consider s 57(1)(b) of the Heritage Act as relevant for the Court's consideration in this appeal. Relevantly, I refer to the definition of 'despoil' described in the Merriam-Webster Dictionary, as 'to strip of belongings, possessions, or value'. This is the primary basis of the contention raised by Council and the effect to reduce the 'value' of the heritage item.
7. The key element of this definition is whether the proposed development impacts the 'visual value' of the heritage item, being Honeman Close located adjacent to the site.
8. I have adopted the meaning of 'land' as relevant to this appeal, being the extent of the curtilage as defined by the heritage item, Honeman Close. 'Land' as it relates to the heritage item does not therefore include the area described as the site. The issue to be addressed is whether the proposed development (visually) 'devalues' the heritage item.
9. It is also relevant to note that "harm" is defined in s 4 of Heritage Act as: "harm means: (a) in relation to a building or work - demolish, or (b) in relation to a relic or moveable object - damage, despoil, move or alter, or (c) in relation to a place or precinct - damage, despoil or develop the land that comprises the place or is within the precinct or damage or destroy any tree or other vegetation on, or remove any tree or other vegetation from, the place or precinct."
10. I find that the proposed development does not devalue, harm or despoil Honeman Close, and that the proposed 10 m vegetation buffer acts as a positive contribution to the heritage item, to effectively screen and reduce visual impact from the proposed development. It is noted that I make no comment nor observation as to the effectiveness of the (10 m) buffer to screen any future development should it be approved on Lot 2, which will be made as part of a separate application, pursuant to s 4.22(5) of the EP&A Act.
11. I accept that there is no scientific or policy basis behind the OEH's or Ms London's suggested width of a 20 m (vegetation) buffer to address potential visual impacts of the proposed development on Honeman Close.
12. I therefore rely on the evidence of the ecological experts, whom agree that a 10 m vegetation buffer along the southern boundary of proposed Lot 2, which if properly planted and well managed would have sufficient effect to screen the proposed development, and that a 20 m buffer would not necessarily have any further beneficial effect to achieve this purpose. I understand from the ecological experts that it is the type of species planted, height and denseness, and the space of plantings, together with proper maintenance that has the greatest effect in providing an effective screen on this site.
13. I find that a 10 m buffer wholly contained within Lot 2, maintained consistent with the Landscape Plan and Vegetation Management Plan, is sufficient to screen the proposed development from Honeman Close, and will not affect the 'value' of the heritage item. The heritage item will therefore not be 'despoiled'.
14. I do not agree with Ms London's assessment of the existing and future character of the area as 'undeveloped and bucolic', based on my observations in the site view whereby the portions of the Honeman Close (Former Great Western Road) are already surrounded by industrial/commercial developments, including near the site. I find that the character of the area is under transition from rural, undeveloped, as Ms London contends, to commercial/industrial as the WSEA SEPP envisages, which is reflective of the IN1 zoning for the Precinct. Therefore, the proposed development is not inconsistent with s 57(1)(e).
15. No other subclauses of s 57(1) are relevant for the Courts satisfaction to grant consent to this DA.
16. I therefore find that the proposed development is not inconsistent with the requirements of s 57(1) of the Heritage Act and relevant subclauses of s 4.15 of the EP&A Act.

Conditions

1. DA 17/01780 is granted based on the agreed amended conditions provided in Exhibit 12 (dated 4 June 2019), and the following conditions that were in dispute between the parties and are determined by the Court as follows: 1. Condition 1.2.1. A satisfactory arrangement for the provision of regional transport infrastructure and services under Clause 29 of the State Environmental Planning Policy (Western Sydney Employment Area) 2009 is required to be submitted to Council. 2. Condition 2.2.1. Amend plan details to refer to amended Subdivision Plan, Version F, 14 June 2019. 3. Condition 2.2.2. The vegetation buffer along the northern alignment of Honeman Close is to be 10m in width/depth, fully located within Lot 2. Planting of advanced specimens of sympathetic species is to supplement existing vegetation to provide adequate screening, consistent with the Landscape Specification, Details & Plant Schedules. Weed species are to be removed and the buffer maintained consistent with the approved Vegetation Management Plan. 4. Condition 2.3.1.1. Any Construction Certificate covering Engineering Works must include and address the following: • Design of specified Engineering Works as required by this consent. • Any ancillary works necessary to make the construction effective If both Building and Engineering works are required, separate construction certificates can be issued for the following works: • Construction Certificate for Building Works • Construction Certificate for Engineering Works (As nominated in the 'Prior to Construction Certificate (Engineering)' section of the consent) Works which require approval under the Roads Act 1993 or Local Government Act 1993 CANNOT be privately certified. Examples of these works are, but not limited to: • Works in public areas (i.e. Road Reserve, Public Reserves) • Inter-allotment drainage (i.e. drainage outside the boundary of the land being developed) Engineering works (as nominated in the 'Prior to Construction Certificate (Engineering)' section of the consent) can be included within a Construction Certificate for Building works, provided that: • All Engineering Works are specifically mentioned on the Construction Certificate • The Certifier holds relevant qualifications to issue a Construction Certificate for the Engineering works. Appropriate accreditation qualifications must be shown on Construction Certificate. 1. Condition 2.3.2.1. If the applicant wishes for Council to issue the Construction Certificate for Engineering Works (As nominated in the 'Prior to Construction Certificate (Engineering)') the applicant must: • Complete application form • Submit all relevant plans produced by a suitably qualified person and in accordance with Councils Standards. A quote will be provided in writing 1. Condition 2.3.2.2. If the applicant wishes for Council to undertake Construction inspections and issue a Compliance Certificate for engineering works, the applicant must: • Complete application form • Submit all relevant plans produced by a suitably qualified person • If plans are privately certified, applicant must supply Construction Certificate covering the required works. A quote will be provided in writing. 1. Condition 2.3.5.1. Principal Certifier - The Principal Certifier for the proposed subdivision is either Blacktown City Council or an accredited certifier that shall be appointed prior to commencement of any construction works, and shall issue the Subdivision Certificate upon compliance with all conditions of this consent. 2. Condition 2.4.1. No construction preparatory work (including tree or vegetation removal, ground clearing, excavation, filling, and the like) shall be undertaken on the land prior to a valid Construction Certificate being issued for the construction works. 3. Condition 2.6.2. Payment into the Biodiversity Conservation Fund must not be sought. BioBanking credits authorised by issue of a BioBanking Agreement from OEH, must be sought from a vendor, purchased and retired. Statement of transfer and retirement is required from OEH. Construction will not commence until all credits have been retired and evidence provided to Council. 4. Condition 2.6.7. Prior to works commencing (including any bulk earthworks), vegetation is to be retained and managed in the Vegetation/Conservation Reserve (Lot 3) which must be clearly delineated and protected from clearing, erosion and sedimentation, and protected from any construction/operation works. 5. Condition 2.6.9. The Vegetation Management Plan must be prepared by a suitably qualified and consistent with the approved Landscape Plan and Revised Species Impact Statement by an experienced ecologist, and must be approved by Council. The implementation of the Plan must be carried out under the supervision of a suitably qualified and experienced landscape specialist/ecologist, with a minimum of five years' experience. 6. Condition 2.8.1. The plan of subdivision is not to be released until Public Road access is provided. This may require the registration of the adjoining subdivision. 7. Condition 3.1.1. A Construction Certificate for the proposed development shall only be issued when the accompanying plans, specifications and/or details are consistent with the approved Development Application design plans. 8. Condition 3.2.1. The 10 m vegetation buffer within Lot 2 must be planted consistent with the approved Landscape Plan and planting schedule prior to release of the construction certificate. 9. Condition 7.2.1. Under the Environmental Planning and Assessment Act 1979 a Construction Certificate for engineering work is required. These works include but are not limited to the following: • Road and drainage construction • On-site stormwater detention • Water quality treatment • Earthworks • Inter-allotment drainage (created within the subject lot) The above requirements are further outlined in this section of the consent. 1. Condition 7.3.1. Under s 68 of the Local Government Act 1993 an approval for engineering work is required. These works include but are not limited to the following: • Any works within a Council Reserve • Any works on adjoining land (outside the subject site boundaries) • Inter-allotment drainage on adjoining land The above requirements are further outlined in this section of the consent. 1. Condition 7.7.4 Delete (u). 2. Condition 10.3.1.2 The environmental consultant engaged for this project is to be on site for regular monitoring of the approved site works. In this regard, Council will require a post earthworks salinity investigation demonstrating that the salinity management measures provided in the Geotechnical Assessment Report have been implemented and that the site is suitable for development. Any lots identified as containing saline or aggressive soils shall provide suitable s 88B (of the Conveyancing Act 1919) restrictions/ covenants on title for building construction measures to mitigate the effects of aggressive soils and salinity. 3. Condition 12.10.1 All inspection(s) required by this consent for any engineering works that are approved under the Roads Act 1993 must be made by Council's Development Overseers. Inspections must be pre-booked with a minimum twenty-four (24) hours notice. Councils Development Overseers may be contacted on 02 9839 6586 between 6:30am - 7:30am, Monday to Friday. Note: A site inspection is required prior to commencement of work. A schedule of mandatory inspections is listed in Council's Works Specification - Civil (current version). 1. Condition 13.10.2.2. A public positive covenant as referred to in s 88E(2) of the Conveyancing Act 1919, specifying Blacktown City Council as the prescribed authority that is imposing the public positive covenant, must be registered and recorded on the title of proposed Lot 1 in the following terms: "The land within the Conservation Lot under Huntingwood Development Control Plan CP on proposed Lot 3 must be maintained as a conservation area in perpetuity by the registered proprietor of Lot 1 and the registered proprietor must ensure that: (i). Any activity carried out on the land does not damage or otherwise have an adverse effect on the ecological, scientific, cultural or aesthetic values of the land; (ii) All environmental weeds and priority weeds listed under the Biosecurity Act on the land must be continually supressed and destroyed in perpetuity to a level that maintains ecological functionality of the land; iii) Nesting boxes and/ or artificial hollows that are installed on the land must be maintained and replaced as needed. iv) The Vegetation Management Plan must be implemented consistent with the Plan produced by Cumberland Ecology (2018) and revised as required. v) No horticultural varieties must be used in any of the works carried out in the Conservation Reserve, or within close proximity to the reserve." 1. Condition 13.10.2.3. A Restriction as to User over proposed Lots 2 shall be created under s 88B of the Conveyancing Act 1919 for the provision of a 10m deep soil zone along the north side of Honeman Close to retain the existing native vegetation and to allow it to propagate. 2. Condition 13.10.3. There shall be no direct vehicular or pedestrian access to and/or from the following nominated road(s) for any lots having frontage to that road. An appropriate restriction on the use of land shall be created under s 88B of the Conveyancing Act 1919 covering this requirement. The s 88B Instrument shall contain a provision that it may not be extinguished or altered except with the consent of Blacktown City Council. Nominated Road(s): Former Great Western Highway, Honeman Close 1. Condition 13.10.4. The creation of reciprocal rights of way over the access to the following nominated lot(s) under s 88B of the Conveyancing Act 1919. Nominated Lot(s): 2 & 3 NOTE: A restriction as to user for "Maintenance and Repair of the Shared Access" shall also be created over each nominated lot and this shall be in accordance with Blacktown City Council's standard recitals for Terms of Easements and Restrictions (current version). 1. Condition 13.10.5. Restriction as to User over proposed Lot 2 shall be created under s 88B of the Conveyancing Act 1919 in the following terms: No further development of the lot burdened is to take place unless it is approved by Development Consent. Such approval is likely to require, but not be restricted to, construction of road and drainage works, protection of 10m vegetation buffer, the provision of lot fill and the payment of s 7.11 Contributions. NOTE: The final wording of the recital of the Restriction as to User is to be to Council's satisfaction. 1. Condition 13.10.5.3. Deleted 2. Condition 13.10.5.5. Link Lot 1 in ownership with Lot 3 through a vinculum to ensure ongoing resource for maintenance of the Vegetation Reserve. 3. () Condition 13.10.5.6. Amend the boundary of Lot 1 to include all the channel/drainage/detention/wetland/open water works including all batters, and a 3.5m wide accessway to the wetland area within Lot 1. 4. () Condition 13.10.5.7. Provide a minimum 3.5m wide right-of-way over the vehicular maintenance accessway to Lot 3 over Lot 2 in favour of Lot 3. The right-of-way must be registered with NSW Land Registry Services. 5. () Condition 13.10.5.8. Provide a minimum 3.5 m wide right-of-way to the vehicular maintenance accessway to Lot 3 over Lot 1 from the entry off Reservoir Road in favour of Lot 3. The right-of-way must be registered with NSW Land Registry Services.
2. All other conditions, than described above, as proposed by the parties are accepted. The relevant conditions of consent for the granting of DA 17/01780 are provided in Annexure A of this judgement.

Conclusion

1. The proposed development has been assessed by the Court, based on the DA's (amended) supporting plans, documents and conditions of consent to satisfy the requirements of the relevant planning instruments, in particular the TSC Act, Heritage Act, WSEA SEPP and HPDCP.
2. The requirements of the Roads Act are also satisfied by amended plans and conditions, and are not contended (by the parties), because they restrict access to the site to Reservoir Road and consider the current RMS road works in this area. The area of land that currently belongs to the site designated for resumption by RMS is not included in the calculation of the proposed lots for this DA, as shown on the amended Subdivision Plan.
3. In assessing the proposed development, Stage 1 which is under appeal for this DA, I find that s 4.22 of the EP&A Act is satisfied. It is accepted that any future stages of development on this site will be assessed separately from the DA that is to be granted.
4. Therefore, I find that the proposed development satisfies s 4.15 of the EP&A Act. I am satisfied that the proposed development is lawful and complies with the relevant provisions of the EP&A Act, TSC Act, Heritage Act, Roads Act and WSEA SEPP.
5. The Court grants consent to DA 17/01780 with conditions, pursuant to s 4.16 of the EP&A Act.

Orders

1. Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on: Landscape Specification, Details & Plant Schedules, dated 21 May 2019; and Subdivision Plan, Version F, dated 14 June 2019. 2. The appeal is upheld. 3. Development Application (DA) 17/01780 for Stage 1 of a staged concept development, seeks Torrens title subdivision of one lot into three lots, demolition of existing structures, tree removal, and construction of a service station with associated car wash, convenience store, café, road works, landscaping including 10 m buffer along Honeman Close, drainage and earthworks on Lot 2 DP 229466, also known as 6 Honeman Close, Huntingwood is approved subject to conditions in Annexure A. 4. The exhibits, except for Exhibits 1, 12, 15, A, C, D and E are returned. ……………………. Sarah Bish Commissioner of the Court Annexure A (285 KB, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2019