B T Goldsmith Planning Services Pty Limited v Blacktown City Council

Fitzpatrick Investments Pty Ltd v Blacktown Council (unreported) ; CASES CITED: Fitzpatrick Investments Pty Ltd v Blacktown City Council [1999] NSWLEC 290; BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210; BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399

DATES OF HEARING: 06/12/2006, 07/12/2006, 08/12/2006 and 11/12/2006

APPLICANT Mr B. McClintock, sc with Ms H. Irish, barrister SOLICITORS Minter Ellison LEGAL REPRESENTATIVES:

RESPONDENT Mr J. Ayling, sc SOLICITORS Norman Waterhouse Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10985 of 2004 B T Goldsmith Planning Services Pty Limited v Blacktown City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of a development application (03-2975) under the Environmental Planning and Assessment Act 1979 (EPA Act) by Blacktown City Council (the council) to subdivide Lot 101 DP 863828, Hampton Crescent, Prospect (the site). The site and surrounding area 2 The site has an area of 4.172 ha of which 3.86 ha is vegetated by regrowth Cumberland Plain Woodland (CPW), which includes groundcover, understorey and canopy vegetation in the Shale Plains Woodland (SPW) subgroup of the CPW community. The site supports the Cumberland Land Snail (the Snail). CPW is listed as an Endangered Ecological Community under the Threatened Species Conservation Act 1995 (TSC Act). The Snail is listed as an endangered species under the TSC Act. 3 Adjoining the site to the east is residential development accessed off Chapel Circuit. To the north is a transmission line easement and open space owned by council (Lot 30 803853). A thin corridor of council owned land adjoins the site to the south and fronts the Great Western Highway. To the west is Timbertop Reserve (Lot 100 DP 863828). It has an area of 4.823 ha of which 3.24 ha is CPW. The total area of CPW on the site and Timbertop Reserve is 7.1 ha. 4 The western and northern boundaries of Timbertop Reserve adjoin residential development. The locality is predominantly residential and made up of single and two-storey dwellings and open space. Background 5 The site and the adjoining Timbertop Reserve have a long history of development applications and appeals. An agreed chronology is included in Tab 9.A of Exhibit B. Matters of relevance to this appeal are summarised in the following paragraphs. 6 The site was originally part of Lot 3002, DP 803457 which was zoned for residential purposes. In 1993 council resolved to rezone Lot 3002 to 6(a) open space. 7 In September 1993 council refused an application for a 99 lot subdivision of Lot 3002. 8 On 19 October 2004, council resolved to rezone the western portion as open space (Timbertop Reserve Lot 100 DP 863828) and the eastern portion (the site Lot 101 DP 863828) remained zoned residential. 9 In January 1995, a deferred commencement approval was granted by council to subdivide Lot 101 into 61 lots. This approval subsequently lapsed. As I understand, the zoning and sale of lot 100 was linked to this approval. Council compulsorily acquired Lot 100 on 9 May 1997. On 28 April 1998, Lloyd J in Fitzpatrick Investments Pty Ltd v Blacktown Council (unreported) determined an appeal for compensation for compulsory acquisition. At that time CPW had not been declared an endangered ecological community under the TSC Act. Lloyd J held that the lot 100 together with Lot 101 would have received approval for 98 residential lots at the date of acquisition and compensation awarded on this basis. 10 The Scientific Committee, established by the TSC Act, made a Final Determination to list CPW as an endangered ecological community under Pt 3 of Sch 1 of the TSC Act on 13 June 1997. CPW, as described by the Scientific Committee, is the accepted name for the assemblage of plant species that occurs on soils derived from shale on the Cumberland Plain. The Snail was declared an endangered species the following year. The Scientific Committee also made a Final Determination to list "Clearing of native vegetation" as a key threatening process in Sch 3 of the TSC Act on 21 September 2001. 11 Cowdroy J, in Fitzpatrick Investments Pty Ltd v Blacktown City Council [1999] NSWLEC 290 dismissed an appeal against council's refusal of a development application for a 55 residential lot subdivision of the site. His Honour found that:

Whilst the ecological value of the land is such that it may be developed, the development as proposed is devoid of thoughtful measures which would ensure the preservation and promotion of a substantial proportion of the woodland environment. The present proposal would lead to the destruction of the majority of the woodland so that the residue would be a mere token. It would be possible for the applicant to submit a subdivision design which ensures that substantial tree cover remains. Obviously this could only be achieved by a plan carefully prepared to maximise tree preservation based upon substantially larger lot sizes than now proposed. The development application is refused pursuant to SEPP 19 and s 79C of the EP&A Act. 12 On 23 July 2004, the applicant lodged a licence application under s91 of TSC Act to clear part of the site to for remediation of asbestos containing materials (ACM). The Department of Environment and Conservation (DEC) refused the licence application on 7 October 2004 citing that a Species Impact Statement (SIS) was required. 13 The application now before the Court, initially for a 34 lot subdivision, was lodged on 18 July 2003. The application was notified to adjoining owners and 27 objections were received. The appeal against Council's deemed refusal of the application was lodged on 19 August 2004. Council refused the application by Notice of Determination dated 26 October 2004. 14 On 1 July 2005, Pain J in BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210 (the 2005 judgment), determined a preliminary question in the appeal and held that a SIS was required. The Director General's requirements for a SIS to carry out remediation works or subdivision were issued by the DEC on 3 August 2005. The requirements included consideration of compensatory strategies offsite to offset the loss of CPW on the site if modifications to amend the proposal to minimise impact were not feasible. 15 The SIS addressed the 34 lot subdivision and was referred to the DEC. The DEC comments on the proposal and the adequacy of the SIS are contained in its letter dated 1 November 2005. In summary the DEC considered the site to be:

A significant remnant of the listed endangered community, Cumberland Plain Woodland (CWO) given its size, high species diversity and its educational and amenity values in an otherwise extensively cleared and developed landscape. 16 DEC considered the impact of the proposal unacceptable due to the removal or significant modification of all CPW on the site. However, if the proposal were to be approved a clear offset would be required. The DEC letter stated that:

…offsetting should be considered only as a last resort when all other options to avoid and minimise impacts have been considered. Following review of the SIS, the DEC considers that alternatives that reduce the scale of the development have not been adequately explored.… For example, the area development could be restricted to the location of the currently proposed lots 1-11 and lots 33 and 34 (totalling 13 lots) adjacent to the existing development and thereby increase the viability of the remaining bushland. 17 A further DEC letter dated 14 March 2006 commented on the draft offsetting proposals prepared by GHD Pty Ltd (Feb 2006). The option preferred by GDH was to invest in Timbertop Reserve and connected open space reserves to the wetlands near Lancelot Street, Prospect. Again the DEC reiterated the principles for offsetting as a last resort. The letter states :

In summary, these principles state that the objective of any offsetting proposal should be to:

1. retain vegetation and avoid impacts; 2. minimise and mitigate impacts; 3. as a last resort, offset the remaining unavoidable impacts, by i. protecting existing vegetation on private land; ii. protecting existing vegetation on public land; then iii. revegetating cleared areas in existing locations.

Furthermore, preference should be given to a "like for like" offset, the offset should be greater than the area cleared and the offset should preferably be in proximity to the area impacted, though this may not be possible. 18 In relation to the specific offset proposal the DEC raise concerns about it being on public land, the offset ratio of 3.1:1 being inadequate and the period of funding. 19 Supplementary information on the SIS to address the issues raised by DEC was prepared in February and July 2005. Council did not forward this supplementary information to DEC. It is not clear whether it was forwarded by the applicant. 20 The application was amended in August 2006 to be for 29 residential allotments including an amended offset proposal. The amended application was renotified and further submissions were received. The amended application and offset proposal were forwarded to DEC. It provided comment by letter dated 16 November 2006 which generally reiterated its earlier concerns. The proposal 21 The proposal seeks to subdivide the site into 29 residential lots and one community lot (lot 30) used for open space by way of a Community Title Scheme. 22 The residential lots range in size from 450 sq m to 1036 sq m with a total area development area of 2.62ha. They occupy the eastern part of the site, with 11 lots along the eastern boundary adjoining the existing residential development off Chapel Circuit. Access is obtained from Hampton Crescent. 23 Lot 30 runs along the western boundary and adjoins Timbertop Reserve. It has an area of 1.546 ha and includes a 35 m wide (0.86 ha) bushfire buffer zone and fire trail (APZ) to be used as "publicly accessible open space" and 0.69 ha of CPW. 24 The majority of trees within the APZ and the proposed lots are to be retained and the Snail is to be translocated. 25 The proposal includes compensatory measures, both on and off the site, for the loss of CPW. These measures on site include the rehabilitation of Lot 30, which is proposed to managed by the Community Association in accordance with a Community Management Statement (CMS). The CMS establishes by-laws for the Community Title Scheme which the owners and occupiers of the lots must comply with. 26 The compensatory measures off site are an offset proposal which involves the applicant entering into a Planning Agreement with council to undertake works to revegetate and rehabilitate part of Timbertop Reserve. At the time of the hearing council has not agreed to enter into the Planning Agreement. 27 The proposal also includes remedial works to remove asbestos containing materials ACM from the site. A separate development application for this work was lodged on 14 August 2006, but at the time of the appeal was not determined by council (the 2006 DA). Relevant planning controls 28 The site is zoned Residential 2(a) under Blacktown Local Environmental Plan 1988 (LEP 1988). The subdivision of the site is permissible with consent. Timbertop Reserve is zoned 6(a) (Public Recreation Zone) under LEP 1988. Part 3 of LEP 1988 provides requirements for subdivision and cl 25 requires consent for the removal of trees. No issues are raised with the requirements of LEP 1988. 29 Blacktown Development Control Plan 1992 (DCP 1992) applies. Part A, Introduction and General Guidelines and Part C, Development in the Residential Zones apply to the proposed development. 30 Timbertop Reserve is bushland reserved for open space purposes within urban areas and State Environmental Planning Policy No 19 - Bushland in Urban Areas (SEPP 19) applies. 31 The aims and objectives in cl 2 of SEPP 19 relevantly provide:

(1) The general aim of this Policy is to protect and preserve bushland within the urban areas referred to in Schedule 1 because of: (a) its value to the community as part of the natural heritage, (b) its aesthetic value, and (c) its value as a recreational, educational and scientific resource.

(2) The specific aims of this policy are: (a) to protect the remnants of plant communities which were once characteristic of land now within an urban area, (b) to retain bushland in parcels of a size and configuration which will enable the existing plant and animal communities to survive in the long term, (c) to protect rare and endangered flora and fauna species, (d) to protect habitats for native flora and fauna, (e) to protect wildlife corridors and vegetation links with other nearby bushland, ……. (g) to protect bushland for its scenic values, and to retain the unique visual identity of the landscape, ……. (l) to protect the educational potential of bushland, ……. 32 Clause 9 of SEPP 19 provides:

(1) This clause applies to land which adjoins bushland zoned or reserved for public open space purposes. (2) Where a public authority: (a) proposes to carry out development on land to which this clause applies, or (b) proposes to grant approval or development consent in relation to development on land to which this clause applies, the public authority shall not carry out that development or grant the approval or development consent unless it has taken into account: (c) the need to retain any bushland on the land, (d) the effect of the proposed development on bushland zoned or reserved for public open space purposes and, in particular, on the erosion of soils, the siltation of streams and waterways and the spread of weeds and exotic plants within the bushland, and (e) any other matters which, in the opinion of the approving or consent authority, are relevant to the protection and preservation of bushland zoned or reserved for public open space purposes. 33 CPW is listed a endangered ecological community under Pt 3 of Sch 1 and the Snail is listed as an endangered species under Pt 1 of Sch 1 of the TSC Act. Clearing of native vegetation is a key threatening process in Sch 3 of the TSC Act.

34 The objects of the TSC Act are: (a) to conserve biological diversity and promote ecologically sustainable development, and (b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and (c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and (d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and (e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and (f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.

35 Section 5A of the EPA Act requires factors to be taken into account in deciding whether there is likely to be a significant effect on a threatened ecological community. Section 78A(8)(b) of the EPA Act requires that a SIS must accompany an application likely to significantly affect a threatened ecological community. 36 Pain J, in the 2005 judgment at par 91 and 92 held that:

91 I consider the proposed clearing of the CPW on the site is likely to significantly affect - meaning a real chance or possibility - a threatened ecological community of significant - meaning important - effect, in light of s 5A(c), (d), (f) and (g) of the EP&A Act and taking into account the cumulative impact of clearing on the viability of CPW across the region.

92 In relation to the preliminary question I find that pursuant to s 78A(8)(b) of the EP&A Act Development Application No. 03-2975 for a 34 lot residential subdivision on Lot 101, DP 8638828 Hampton Crescent and Norman Street, Prospect is required to be accompanied by a SIS prepared in accordance with Div 2 of Pt 6 of the TSC Act before the Court is empowered to consider the merits of the Applicant's development application. 37 A SIS was subsequently prepared. 38 Under s 79B(3) of the EPA Act, development likely to affect a threatened ecological community requires concurrence from the Director of the National Parks and Wildlife Service, now the DEC. Council did not seek the concurrence of the DEC as the application was before the Court. The DEC has provided comments on the SIS, but not its subsequent amendments. 39 Under the recent amendments to the TSC Act, if a biobanking statement has been issued the development is taken not to significantly affect threatened ecological communities and concurrence is not required. No statement has been sought or issued. 40 Section 79B(5) of the EPA Act specifies the following matters that must be taken into consideration in granting concurrence:

(a) any species impact statement that accompanied the development application, (b) any assessment report prepared by the consent authority, (c) any submissions received concerning the development application, (d) any relevant recovery plan or threat abatement plan, (e) whether the development proposed is likely to reduce the long-term viability of the species, population or ecological community in the region, (f) whether the development is likely to accelerate the extinction of the species, population or ecological community or place it at risk of extinction, (g) the principles of ecologically sustainable development, (h) the likely social and economic consequences of granting or of not granting concurrence. 41 Section 39(6) of the Land and Environment Court Act 1979 (LEC Act), the Court may determine the application without the concurrence of the DEC. The issues 42 The Further Amended Statement of Issues contained five issues which can be summarised into the key issue of whether there would be an unacceptable impact on the endangered ecological community of CPW as a result of the proposed development. The Evidence 43 The Court visited the site and heard evidence from a number of residents. Their concerns were principally the impact of the proposal on the CPW which they considered to be an important community resource both ecologically, visually and for its recreation value. The residents concerns largely reflected those of council. 44 Expert evidence on ecology was provided by Dr D Robertson, the Court Appointed Expert, Mr A Morrison, for the council and Dr K Mills, for the applicant. Mr D Williams prepared the offset proposal for the Applicant and gave oral evidence. Mr B Goldsmith provided planning evidence on behalf of the owner of the site. 45 Statements of Evidence were provided for the applicant by Mr R Wiese, hydraulic engineer and Mr B Parry, bushfire consultant. These experts were not required for cross examination. Conservation value 46 The conservation value of the site was debated at some length in the 2005 judgment. There is no evidence presented to me in this case that would cause me to reach a different conclusion that the site is of conservation value. 47 In their Joint Statement all the expert agreed that:

1. The site is part of a 7.1 hectare patch of Shale Plains Woodland, a component of Cumberland Plain Woodland, a listed Ecological Community and supports the endangered Cumberland Land Snail.

2. The site is likely to be used for foraging by several vulnerable bat species that have been recorded in the vicinity, and possibly on occasion by the Swift Parrot; listed as endangered. These parrots would use the woodland as a stepping stone when moving across the landscape and as a foraging resource. 48 The 7.1 ha "patch" of CPW includes the site and the adjoining Timbertop Reserve which is regrowth CPW, the area having been used for grazing some 40 years ago. The experts agreed that because the sites are contiguous it is appropriate that the CPW on both sites be considered together. The sites are not contiguous with any other areas of CPW. 49 The experts generally agreed that parts of the site are in moderate to good condition while other parts are in very poor condition resulting from the invasion of weeds, especially exotic grasses, fires, rubbish dumping (including ACM) and use by the public, particularly bike riders. Sheet 4 of the development application illustrates the disturbed areas of the site (Exhibit A). Areas of Timbertop Reserve are also degraded, particularly the area of fill near the watercourse in the western part of the site. 50 All experts recognised that CPW is resilient and capable of being re-established, as the current vegetation on the site demonstrates. Generally the experts agreed that the site was of conservation value but that some development on the site could occur. The main disagreement was the extent of development and the offset proposal. Impact of the Proposal 51 The proposal can be divided into three components: remediation work, bushfire management and subdivision to provide the residential lots. Mr McClintock SC, for the applicant submitted that the remediation and hazard reduction were required regardless of the proposed subdivision, and that these significantly reduced any conservation value of the site, independent of the impacts of the subdivision proposal. 52 Mr Ayling SC, for the council, submitted that there was no evidence that the remediation work was required independent of the subdivision application and that while hazard reduction was required, its extent was much greater as a result of the subdivision proposal. He submitted that these impacts needed to be considered as impacts resulting from the subdivision proposal. 53 The details of the remediation works to remove ACM were not clear during the hearing. 54 The ecology experts agreed that :

It is not known what the extent of asbestos is across the site and what impacts the remediation may have. It was agreed that those areas to be remediated for asbestos would be disturbed by the remediation process and so were more comparable to the proposed offset site due to the likely damage to understorey vegetation. 55 As I understand the evidence, the site (and Timbertop Reserve) contain ACM. The fragments are sometimes exposed or buried in the soil. The applicant submits that the remediation id required so hazard reduction can be carried out and for public safety. The Remedial Action Plan prepared by Consulting Earth Scientists dated 6 April 2004, which accompanied the development application states that the purpose of the assessment is to "to identify contamination of the site as a result of past and/or present activities on and/or adjacent to the site, which may affect the future sale as residential land." Further the study says "it will be necessary to remove all understorey from the site to ensure that any ACM present in these areas is located and removed". During the hearing the applicant agreed that a staged rehabilitation program could be implemented in those areas where it is proposed to keep the CPW in situ and that the Snails can be translocated to Timbertop Reserve prior to clearing. The remediation would not require the removal of canopy trees or the seed bank in the topsoil. 56 There was no expert evidence to confirm or refute whether the removal of ACM was required regardless of the subdivision proposal. The evidence before the Court on this point was inconclusive with a degree of inconsistency, however, it is not necessary for me to document this evidence or to determine this difference of opinion. The applicant submits that the remediation of the site is required regardless of the subdivision and to achieve this the understorey is required to be removed over the whole site or a substantial part of the site. Even if this is the case, it represents a "temporary disturbance". If the site is to be left undeveloped after remediation the understorey could regenerate and the conservation value of the CPW would not be lost in the long term. 57 However, with the subdivision proposal it is necessary to permanently remove or reduce the understorey of CPW on all but 0.69 ha of the site to provide for the APZ and the residential allotments. This will have a long term impact on the conservation value of the CPW. 58 I do not accept the applicant's submission that the subdivision application should be assessed in the context of disturbance likely to be caused by the removal of ACM and hazard reduction. Rather, the impacts of the proposal, including the residential lots, bushfire management and remediation works should be assessed in the context of the current conservation value of the site. This approach is consistent with that taken by the experts. 59 In this context, the experts all agreed that the proposal would have a "significant impact on the CPW on the site". Dr Mills and Dr Robertson considered that this impact could be compensated by the offset proposal. 60 The experts agreed that:

The likely impacts to Timbertop Reserve can be controlled through appropriate ongoing management of the APZ, and reserved lands, including weed management, management of access to and use of the reserved/APZ through a Plan of Management funded by a community scheme. 61 The experts did not raise significant issues with the proposal to translocate the Snail to the adjoining Timbertop Reserve, although details were not provided and Mr Morrison considered greater retention of CPW on site would also provide greater habitat for the Snail. Offset Proposal 62 The key disagreement between the experts was how much of the CPW on site should be retained and whether the offset proposal adequately compensated for the loss of CPW. 63 The experts agreed that:

Given choice it is always preferable to retain and restore existing woodland that to attempt to recreate or provide new woodland.

There were not many revegetated areas in western Sydney that are successful in recreating all the biodiversity values in a natural woodland. 64 Dr Mills considered that this was because most revegetated areas were less than 10 years old and it was too early to determine whether they were successful or not. Dr Robertson and Mr Morrison considered that other examples did not involve translocation of soil seed bank and mainly included canopy trees and not the understorey component of a community. 65 The experts positions in relation to the offset proposal before the Court were:

Dr Mills supports the current plan. Dr Robertson has stated that the more native vegetation retained in situ the better however he would support the current plan if the offsets are strictly conditioned and funded for long term management. Mr Morrison disagrees with the current plan, seeking a larger area of in situ retention based on the suite of ecological values the site supports. 66 Mr Morrison proposed an alternate subdivision with 11 lots along the eastern boundary of the site adjoining the existing residential development. In his opinion this alternative would conserve the ecological values of the site. The other experts agreed but stated that the conservation objectives needed to be balanced against the development potential of the site. 67 The experts agreed that if the current subdivision application were approved, the offset proposal needed to be amended to address issues such as plant species, maintenance period and performance monitors. The applicant has agreed to undertake the suggested amendments provided that there is no liability for damage caused by third parties and that the work be carried out by Greening Australia. 68 The preferred offset (Option 1) is described in Exhibit 3 (Tab 3, pages 14-16), the Vegetation Management Plan (VMP) (Exhibit N) and the CMS (Exhibit M), however, there are some inconsistencies within these documents as the proposal has evolved. As I understand the proposal comprises:

the management and restoration of the publicly accessible open space as well as Timbertop reserve, which borders the proposed development, and then downstream, following the connected open space, towards the recently constructed wetlands near Lancelot Street, Prospect. 69 The key elements are: · Conservation and bush regeneration of 0.69 ha of CPW in Lot 30. · Management of 0.68ha of APZ in Lot 30. This will include emergent trees, with a discontinuous canopy, and grassy understorey only. · Bush regeneration of 3ha of existing remnant vegetation on Timbertop Reserve. · Revegetation of 4.4 ha of cleared areas in Timbertop Reserve and along the drainage line heading north · The top 10cm of soil on areas of the site to be cleared will be removed to provide a seed bank of Shale Plains Woodland (SPW) to be used on the adjoining site. The areas along the drainage line will be revegetated with Sydney Coastal River Flat Forest (SCRFF). 70 The VMP (Exhibit N at Appendix C) includes a breakdown of costs for the offset. The total costs of the offset package are $229,060 (excl GST), about $250,000 in total. 71 In relation to Lot 30 the total costs are $43,880 (excl GST). These include: · $3,600 for the establishment of APZ · $16680 for bush regeneration for three years (4 sessions per year) · $20,000 contribution to the Community Trust Fund for ongoing maintenance 72 In relation to the works off site, the total costs are $185,180 (excl GST). These include $51,000 for the revegetation of 4ha and $38,080 for bush regeneration of 3ha. Details and costings of the revegetation of the drainage line to the north of the site are not specifically stated, however, I presume they are included within the costs of the 4 ha specified as revegetation. 73 The total area of the offset in the VMP is 8.55ha, of which 1.55ha (consisting of the CPW and APZ) is on site and 7ha is offsite. The represents a ratio of 1:32:1 of offset to area cleared based on the area of CPW cleared being 2.62ha. 74 The VMP states that it "provides a clear, concise and practice framework for the restoration and management of vegetation throughout the proposed sites for a period of three years". Dr Robertson expressed concern about the long term management of the offsets beyond the establishment phase. The applicant has agreed to a maintenance period of 10 years on the basis that most of the financial expenditure will occur in the three year establishment period. The expenditure is limited to $250, 000. 75 The experts held different opinions as to the adequacy of the offset ratio but generally agreed with the DEC principles that the offset should be greater than the area cleared. As a rule of thumb the DEC suggests that:

An initial ratio of 2:1 should always be applied where a "like-for-like" offset is proposed. Where like-for-like cannot be achieved a higher ratio should be applied. The highest ratios, which may range up to 20:1 depending on the conservation significance of the cleared vegetation, apply were existing habitat is proposed to be replaced by revegetation of cleared land. This is because revegetation has a greater risk of failure than the protection of existing vegetated areas and has not been proven to be capable of fully replacing the ecological values that are lost as a result of clearing. 76 All the experts agreed that the multiplier for revegetation as a result of lost CPW on the site would be less than the DEC figure. Mr Morrison considered the ratio should be between 8:1 and 16:1 depending on the significance of CPW and the offset proposed. Dr Mills and Dr Robertson considered the ratio of 3.2: 1 to be acceptable. Dr Robertson stated that there was no fixed formula but the total package of conservation, development and offsets needed to be assessed. He stated that consideration needed to be given to the economic and social benefits, zoning and development potential. He was not sure if reducing the size of the development to increase the size of CPW to be retained would be of benefit. 77 In reaching his conclusion in relation to the impact of the proposal, Dr Robertson was principally concerned that the conservation value of the CPW was largely threatened by lack of management. The relatively small size of the "patch" meant it was particularly susceptible to the impacts of edge effects and unsupervised use. In his opinion the retention of more CPW would achieve little if the site were left unmanaged. The Community Title Subdivision and residential lots enabled sufficient funds to rehabilitate the CPW retained on the site and to provide long term management of it and the APZ to provide a buffer between the residential development and Timbertop Reserve. This together with the offset proposal compensated for the loss of the CPW on the site. 78 Mr Morrison was concerned that the area to be revegetated was in the old quarry area adjacent to the drainage line. This area was fill of unknown material. The area is weed infested and despite being immediately adjacent to CPW, there has been no regrowth. Mr Morrison noted that the revegetation would be SCRFF, a sub community of CPW but different to the SPW occurring on the site. He considered there to be a great deal of uncertainty in relation to the likely success of revegetation works to replace the biodiversity of the CPW lost. 79 Mr Williams was confident that the offset works could be implemented over time. He conceded that he had not undertaken any assessment of the fill and that it may not contain soil types suitable to SCRFF. No topsoil is proposed to be used or is included in the costing. No assessment of the hydrology of the drainage reserve had been undertaken.

Economic Impact 80 The DEC principles state that offsetting should be considered only as a last resort when all other options to avoid and minimise impacts have been considered. Clearly greater retention of CPW on site could be achieved by lesser yield. The applicant's case it that this is not feasible or reasonable given the zoning of the land. 81 Mr Goldsmith's evidence was that a lesser yield of 11 lots suggested by Mr Morrison would not be a viable solution. He stated that lesser lots would have proportionally larger construction costs per lot. He provided a comparison of the cost per lot of an 11 lot subdivision ($424,909) and the cost per lot of a 29 lot subdivision ($189,000). These figures were based on that the cost of design and approvals, the construction costs, holding costs and the value of the land (based on the Valuer General's valuation of $2.65m). He estimated the likely sale price of the lots to be between $275,000 and $320,000, however, he stated that the nature of the Community Title Subdivision and the costs of providing the offset may reduce the achievable sale price of the lots. In oral evidence Mr Goldsmith stated that the 29 lots were necessary to fund the offset and that a lesser number would not be feasible. 82 The parties held different opinions as to what should or should not be included in the costs. Mr Aylings submission was that the "only reliable input" was the development costs. On this basis the cost per lot for 11 lots would be $109,000 and $70,000 for 29 lots. When measured against the sale price of the lots either option was feasible. 83 Mr McClintock submitted that based only on the Valuer General's valuation of the site, excluding all holding costs and expenses, renders the subdivision of a lesser number of lots uneconomic.

Findings 84 The impact of the proposal on the Snails is satisfactorily addressed by translocation to the Timberland reserve. Although greater details would need to be provided, particularly timing in relation to removal of ACM and regeneration. 85 The proposal, by providing a buffer between the residential lots and Timberland Reserve generally meets the requirements of SEPP 19 to protect bushland in urban areas. The buffer is of sufficient size to reduce the edge effects on Timberland Reserve likely to result from the residential use of the site. The retention of trees maintain the visual amenity of the bushland. 86 The key issue remains the impact of the proposal on the "patch" of CPW. The size of the "patch", its proximity to urban development and its use by the public mean that its long term viability is largely reliant on management. In the absence of public ownership of the site, the experts agreed that a proposal which combines development of the land with conservation of CPW is appropriate. 87 In principle I accept this proposition, however, I find that there is no justification that the number of lots proposed is critical to the management of the land. Nor due I accept that the offset proposal adequately addresses to loss of the CPW on the site. 88 The offset ratio of 3.2:1 is based on 2.62ha of CPW being cleared. However, this reflects only the area of the residential lots. The further 0.86ha required for the APZ will be cleared of "most of the shrub layer and the close mowing or slashing of the vegetation at ground level" to reduce fuel loads. While canopy trees can be retained in both the residential allotments and the APZ, the understorey is an integral part of CPW community. While the retention of trees is of both ecological and visual amenity value it does not constitute retention of the biodiversity values of a CPW community. The SIS and its supplementary statements, while dealing with the original application for 34 lots, recognised that the CPW on the site would be effectively cleared. The experts agreed that the CPW community that will remain on site is 0.69ha. On this basis the CPW community lost is 3.17ha. It is also questionable whether the APZ should be included in the offset amount as it does not reinstate CPW. However on the basis of its inclusion the offset ratio would be about 2.7:1. 89 Nearly half the offset proposal includes revegetation of cleared land off site. From the evidence I accept that there is a high degree of uncertainty that this will successfully replace the ecological values lost by clearing. The revegetated area is a different sub community to that on the site. The area is on fill and no assessment has been undertaken of its quality or of the hydrology of the drainage line. The area is also in close proximity to residential development and the assessment of factors such a bush fire requirements and edge effects has not been undertaken. While the area may be able to be revegetated I am not satisfied that it will provide CPW of similar ecological value to that lost. 90 I also do not consider that the offset ratio is adequate. At best a 7.1 ha patch of regrowth CPW 40 to 50 years old will be replaced by about 8ha of CPW (including the APZ) of which half is revegetated and will take a number of years to establish. It will not be the same subspecies as the CPW removed and is not likely to achieve the level of biodiversity . 91 While the bush regeneration will improve the quality of the retained CPW, the cost of these works in Timbertop Reserve ($38380) and the site ($16680) does not appear to be commensurate with the area involved. The ongoing cost of managing these areas falls on the owners of the residential lots, albeit with a $20,000 contribution. It is also unclear whether the establishment of the APZ and the rehabilitation of the site resulting from remediation of ACM (if this is staged) is included in the development costs or would be the responsibility of the new owners. 92 The conservation of CPW on site, the retention of trees in the APZ and the residential allotments, the proposed building envelopes and the Community Title management structure are positive features of the proposal. I accept Mr Robertson's evidence that:

the Community Title Subdivision provides greater opportunity to manage the retained vegetation on the subdivision and gives greater probability that the vegetation will be kept in the longer term . 93 However, in balancing the proposal as a "package" of development, conservation and offset I am not satisfied that the loss of the conservation value of the CPW is acceptable or adequately compensated for. 94 The use of an offset proposal is consistent with DEC policy and with the principles of the Biodiversity Banking legislation, however, it should be as a last resort. Other options of retention and mitigation need to be considered first and only if not appropriate, should an offset proposal be considered. 95 Importantly, it has not been adequately demonstrated that other options are not feasible. Clearly a subdivision with lesser lots would retain more CPW. The arguments that this cannot be achieved are based largely on the residential zoning of the site and economic viability. The existence of CPW on the site and Timbertop Reserve is a constraint and needs to be balanced against other factors including the zoning and the economic viability. 96 Mr Goldsmith's evidence was that 29 lots is the minimum number necessary to support the offset proposal. While no contrary expert evidence was put forward, I accept Mr Ayling's submission that the basis of the figures requires further scrutiny before they could be accepted as the sole reason that other subdivision options are not feasible and that the offset is essential. 97 The amended Statement of Environmental Effects states that the value of offsets is $1.25 million ($250, 000 for offset works plus the ability for the public to use lot 30). I do not accept that the use of lot 30 is necessarily a significant public benefit nor are the details of public access clear or included in the terms of the CMS. Most of lot 30 is required for asset protection and would be land not available for development and required regardless of the CPW on the site. While public use of this lot would normally be a desirable public policy objective, in this case, where the main objective is to retain the conservation values of CPW, restriction on public access, especially in the area of CPW to be retained may be appropriate. Therefore the value of the offset proposal is substantially less than this figure. 98 The APZ is required as part of the proposal whether CPW exists on the site or not. The inclusion of establishment costs and ongoing maintenance of this area in the offset proposal may also be questioned. 99 The judgment of McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 provides a useful framework to balance the zoning of the land with the constraints of ecological sustainable development. His Honour stated:

113 In my opinion, by requiring a consent authority (including the Court) to have regard to the public interest, s 79(C)(e) of the EP&A Act obliges the decision-maker to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise. This will have the consequence that, amongst other matters, consideration must be given to matters of inter-generational equity, conservation of biological diversity and ecological integrity. Furthermore, where there is a lack of scientific certainty, the precautionary principle must be utilised. As Stein J said in Leatch, this will mean that the decision-maker must approach the matter with caution but will also require the decision-maker to avoid, where practicable, serious or irreversible damage to the environment.

114 Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment. …..

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 100 In this case the experts all agree that residential development can occur but disagreed on the number of lots. The evidence does not suggest that subdivision with any less than 29 residential lots will be economically unviable. While the reduction to 11 proposed by Mr Morrison or 13 proposed by DEC may be too restrictive, a number somewhere in between, carefully located to conserve more of the CPW, may be possible. For example, the removal of lot 24, 25 and lot 14, the reduction in size of lot 15 and the consequent adjustment to the access road would enable a greater area of CPW with "high quality understorey" to be retained. This would involve the relocation of the APZ further to the east which would require further loss or adjustment of lots to include part of the APZ. 101 During the hearing the applicant did not indicate that it would accept an amended proposal and it would be inappropriate for this to be imposed as a condition given the uncertainty and degree of assessment required. 102 The CPW on the site and the adjoining Timberland Reserve is of conservation value. The proposal has a significant impact on the biological diversity of the CPW as it removes or alters most of the CPW from the site. The offset proposal does not adequately compensate for this loss and it has not been demonstrated that an alternate solution which retains more CPW is not feasible. 103 The application must be assessed against the relevant matters in s79C(1) of the Act. These include, but are not limited to, the likely impacts of the development including environmental impacts on the natural environment (s 79C(1)(b)), the SIS prepared pursuant to s5A, and the matters in s 79B (3) to (5) and having regard to the public interest (s79C(1)(e). On this basis the environment impacts on the natural environment are not acceptable and the application must fail.

Orders 104 For the above reasons the Orders of the Court are:

2. The development application (03-2975) for Community Title Subdivision of 29 residential lots and 1 community lot at Lot 101 DP 863828, Hampton Crescent, Prospect, is refused.

      Annelise Tuor
      Commissioner of the Court

27/04/2007 - Replace CWP with CPW - Paragraph(s) 2 to 102

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