Benoy v The Hills Shire Council

Cases Cited: Australian Protein Recyclers Pty Limited v Goulbourn Mulwaree Shire Council [2006] NSWLEC 641

Texts Cited: Planning for Bushfire Protection 2019

Category: Principal judgment

Parties: Gazel Benoy (Applicant)
The Hills Shire Council (Respondent)

Representation: Counsel:
F Bergland (Applicant)
M Staunton (Respondent)
Solicitors:
Beckers & Associates Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 2024/00345750

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 - Development Appeal under s8.7 of the Environmental Planning and Assessment Act 1979 (NSW), against the actual refusal by The Hills Shire Council of Development Application 938/2023/ZD (the development application) lodged on 12 December 2022 for a subdivision of two existing lots into a Community Title subdivision of fourteen (14) residential lots, one (1) association lot and associated road construction and civil works.

The development application and site context

2. The development application seeks consent for a subdivision creating 14 community title residential lots and one association lot with two existing dwellings retained on two of the proposed lots. Refer to Figure 1.

Figure 1 – Subdivision Plan (Exhibit L)

3. The site comprises of two existing allotments legally described as Lot 2 DP 258669 (29 Ross Place, North Kellyville) and Lot 1 DP 853451 (21 Ross Place, North Kellyville). The site is situated within the C4 Environmental Living (previously known as E4 Environmental Living) zone pursuant to the provisions of the State Environmental Planning Policy (Precincts – Central River City) 2021 Appendix 5 North Kellyville Precinct Plan. Refer to Figure 2.

4. The two lots have a combined area of 4.511 hectares with a combined frontage of 219.19 metres to Ross Place. Lot 1 DP 853451 has an area of 2.059 hectares and Lot 2 DP 258669 has an area of 2.452 hectares. The front boundary of the two allotments faces Ross Place, and the rear boundary adjoins Cattai Creek. To the north and south of the site is surrounded by predominantly C4 Environmental Living zoned land. The properties immediately adjoining are similar community title subdivisions containing dwelling houses with connection to heavily vegetated land. The site presently contains two dwelling houses and associated ancillary structures. Lot 2 is burdened by a 60.96 metres wide electricity transmission line easement owned by Transgrid.

Figure 2 - Land Zoning Map (as per Appendix 5 of the SEPP) with the subject site (Exhibit 1 Amended SOFAC,11/04/25)

5. The site is steeply sloping, falling from the west to east with a significant embankment/ level change from Ross Place to Cattai Creek. The site is identified as a flood-controlled lot due to the riparian corridor and the portion of Cattai Creek traversing the lower portion of the site. The site is also identified as bushfire prone land with a majority of the site classified as being Category 1 – highest risk. Refer to Figure 3.

Figure 3 - Bushfire Prone Land map with the subject site outlined in yellow (Exhibit 1 Amended SOFAC,11/04/25)

6. The proposed subdivision development footprint including the Asset Protection Zone (APZ) will encroach into land identified as a Native Vegetation Retention Area (NVRA) on the Hills Shire Council Native Vegetation Protection Map (Refer to Figure 4), triggering entry into the Biodiversity Offset Scheme and requiring a Biodiversity Development Assessment Report (BDAR). The NVRA was established as part of the Growth Centres Biodiversity Certification Order and associated planning instrument the Central River State Environmental Planning Policy. Much of the proposed subdivision development footprint falls within the bio certified land not requiring an offset. However, a small portion of the proposed subdivision, being the perimeter fire trail and APZ, is located within non bio certified land.

Figure 4 - Land mapped as Native Vegetation Protection within subject site (SOURCE: (Exhibit 1 Amended SOFAC,11/04/25)

Notification and objector evidence

7. The development application was lodged on 12 December 2022. The development application was notified by the Respondent to nearby and adjoining residents and landowners between 15 December 2022 to 7 February 2023. Two submissions from the owners of the adjoining properties at 20 Ross Place, North Kellyville and 24 Ross Place, North Kellyville were received and raised concerns with regards to the loss of vegetation, the impact of the development on the environment and ecology of the neighbourhood, increase in noise levels and traffic issues caused by the proposed dwelling houses under the community title subdivision. No objectors wished to speak at the commencement of the hearing on the 26 June 2025.

Planning framework

Environmental Planning and Assessment Act 1979

8. The Court stands in the position of the consent and is response for determining the development application in accordance with s 4.15 and 4.16 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The Court must consider the matters listed in s 4.15(1) including the relevant provisions of any environmental planning instruments, the likely impacts of the development, the suitability of the site, any submissions made and the public interest. Section 4.15(1)(a)(i) of the EPA Act requires the consent authority to consider the provisions of any environmental planning instrument. The site is zoned C4 Environmental Living (previously known as E4 Environmental Living) pursuant to the provisions of the State Environmental Planning Policy (Precincts – Central River City) 2021 Appendix 5 North Kellyville Precinct Plan.

Biodiversity Conservation Act 2016

9. Pursuant to section 6.3(a) of the Biodiversity Conservation Act 2016 (NSW) (BC Act), the impacts of actions on biodiversity values that are subject to assessment and offset under the Biodiversity Offsets Scheme (BOS) include the clearing of native vegetation and loss of habitat. The development application is proposing clearing of 0.34ha of native vegetation of which is in a NVRA and triggers the BOS, as a result the Applicant prepared a Biodiversity Development Assessment Report (BDAR) (Exhibit O), (Prepared by Enviro Ecology, Dated 13 January 2025, Version 2).

10. A major contention between the parties was the classification of the vegetation on the site which the Respondent communicated to the Applicant that this was mapped on Council’s vegetation mapping layer as Shale-Sandstone Transition Forest (SSTF), a critically endangered ecological community. The impacts on SSTF were not included in the BDAR, and corresponding offsets not correlated because it was asserted by the Applicant that the vegetation on the site was Plant Community Type (PCT) PCT3616 – Sydney Hinterland Grey Gum Transition Forest. The Applicants reasoning was determined based on a lack of shale in the soils determined from a Geological Investigation report of Dr Larry Cook (Exhibit Q, Reference:24168-B, dated 12 May 2025). The Applicant sought this geological investigation to address the Respondent’s contention regarding the high degree of floristic overlap between PCTs in the area and to provide details in addition to floristics which the Applicants Ecologist Mr Whyte relied upon to prepare the BDAR and elect the PCT.

11. During the hearing, the Respondent objected to the use of the Geological Investigation by Larry Cook Consulting (Exhibit Q, Reference:24168-B, dated 12 May 2025) (also included in Exhibit 6, Appendix A of the Joint Expert Ecology Report). The investigation was permitted subject to relevance.

12. Dr Larry Cooks’ investigation was limited to Plot 5 on the site, which was the portion of the site that was outside the bio-certified zone. This geological investigation was interpreted by Mr Whyte in the BDAR finding that Plot 5 was situated on Hawkesbury Sandstone, and there was no evidence of Wianamatta Shale within the non-bio certified land which (Exhibit 0, Folio 20). Refer to Figure 5 showing the location of the Plots.

Figure 5 - Location of Plots in the BDAR (Source: Exhibit O)

13. SSTF by its name is ecotonal in area implying there are discontinuities in the underlying bedrock and soils, and it is explicable that there could be evidence of transition of either one or the other or both. SSTF is influenced from geology overtime and the current geomorphology of the location including being, influenced by erosional forces on steep slopes.

14. In accordance with the Scientific Committee Final Determination, there is no specific reference to soil criteria. However, the emphasis remains on the assemblage of species and pursuant to section 1.2 of the Final Determination for SSTF, not all species are required.

15. The Site itself is in a transitional area, affected with steep slopes and has been affected by anthropomorphic human disturbance. The transitional nature of the site is clearly noted by the Applicant because it has categorised this as PCT 3616 – Sydney Hinterland Grey Gum Transition Forest. It is likely that the soil will not be homogenous and will be heterogeneously patchy based on the abiotic environment in which this type of community has evolved. Not finding shale in the samples is uninformative for the following reasons:

(i) It is not a criterion in the Scientific Committee Listing for SSTF. (ii) The name implies it is transitional forest and the Applicant only sampling in Plot 5, the non bio certified area, and making this assessment in Plot 5 is very insular. (iii) The area is already disturbed by earlier residential development on the lots. (iv) The fact that there was shale within 100m of the site and part of the site visit for the Hearing walked to an adjacent property on Ross Place indicates that the area is a transition zone.

16. There was also further assertion by the Applicant that the SSTF was removed from the BV map at its request and was therefore not included in the BDAR. A portion of the site was mapped on the BV map in 2022. The Applicant wrote to the Map Review Team (MRT) of the Department of Planning Industry and Environment (DPIE) on 13 July 2022 (BDAR Exhibit O, Folio 19) requesting a Biodiversity Values (BV) review stating that that the soils within the BV mapped area were not consistent with those detailed in the scientific determination to support Shale Sandstone Transition Forest (SSTF). The MRT from DPIE responded on the 13 October 2022 and stated:

17. Exhibit 3, Folio 93:

“Your land has been included on the BV Map as this land, in the opinion of the Environment Agency Head, contains habitat for a threatened species (Eucalyptus sp. Cattai) that is identified in a list of the potential serious and irreversible impacts on biodiversity values under section 6.5(2) of the Biodiversity Conservation Act 2016.

The site was assessed by a Department Threatened Species Officer using targeted flora surveys of the property to identify the presence of the threatened species. The officer found no Eucalyptus sp. Cattai individuals on the Property.

The mapping has been updated resulting in a removal of 1.1ha of Biodiversity Values mapping for Eucalyptus sp. Cattai habitat on the property”.

18. The Applicant states in the BDAR:

“As set out in the BV review the soils within the BV mapped area where not consistent with those detailed in the scientific determination to support the position that the site supports Shale-Sandstone Transition Forest. Upon review of the information provided to the MRT the biodiversity values mapping over the upper “development area” was removed”. (Exhibit O, Folio 19)

19. On detailed review of this correspondence, it is apparent, that DPIEs MRT response only specifically referenced removal of the Eucalyptus sp*.* Cattai and there was no reference that the area of the site was removed from the BV map for SSTF. The Applicant’s assertion that it removed SSTF is oversighted. This issue requires further clarification sought directly from DPIE MRT if removal from the BV map also related to SSTF or was ever originally listed on the BV Map for SSTF.

20. The Applicant’s assessment within the non-bio certified portion of the site was very insular, and potentially misrepresenting the broader PCT classification over the entire site which was a combination of bio certified and non-certified. Consideration of the PCT including its soils, within the broader portion of the site, not just Plot 5, may have provided evidence of shale and whilst offsets would not be required in already bio certified areas, it may have indicated that it was another PCT. Regardless, the classification of vegetation types is not the only deficiency of this BDAR which is discussed further below.

Rural Fires Act 1997

21. The development application was externally referred to the NSW Rural Fire Service (RFS) under the Rural Fires Act 1997 (NSW) s 100B and Transgrid. There were several RFI’s throughout 2023 and 2024, and the Applicant provided an updated Bushfire Report addressing the matters raised. The NSW RFS provided general terms of approval and a Bushfire Safety Authority for the development application on 12 June 2024.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. Pursuant to Clause 4.6, of the State Environmental Planning Policy (Resilience and Hazards) 2021 (NSW) (Resilience and Hazards SEPP), a consent authority must not grant consent to the carrying out of development on land unless it has considered if the land is contaminated. The Applicant has undertaken a Preliminary Site Investigation prepared by EI Australia (Dated 7 June 2023, E26020.E01_Rev0) (Exhibit T). This concluded that there was potential for localised contamination to exist on the site, and that further soil investigation was warranted to determine the site suitability for the proposed subdivision and residential land use.

State Environmental Planning Policy (Precincts – Central River City) 2021

23. Pursuant to Clause 2.6 State Environmental Planning Policy (Precincts – Central River City) 2021 (Central Rivers SEPP) Appendix 5, subdivision is permissible with consent.

24. Pursuant to Clause 6.3 (7) when determining development consent in respect of clearing of native vegetation on land within a zone under this Precinct Plan, have regard to the objectives for development in that zone. The objectives of the E4 Environmental Living Zone are as follows:

25. to provide for low-impact residential development in areas of special ecological, scientific or aesthetic value,

26. to ensure that residential development does not have an adverse effect on those values,

27. As noted above, the Respondent claims that the vegetation classification on the subject site is SSTF and therefore holds special value and that clearing this land would be inconsistent with the objectives of the E4 Environmental Living Zone.

28. Pursuant to Clause 6.3 (6) Development controls – native vegetation retention areas and riparian protection areas, development consent must not be granted unless the consent authority is satisfied of the following matters from (a) to (f). Each of these is considered below with specific consideration to the development application and site.

6.3(6)(a) that there is no reasonable alternative available to the disturbance of the native vegetation:

27. One of the main contentions by the Respondent is that there has been inadequate avoidance and minimisation of impacts. The Applicant did not document or record any investigation, consideration of proposed alternate layouts to avoid incursion into the mapped Native Vegetation Retention Area in the Biodiversity Development Assessment Report (BDAR) (Exhibit O, prepared by Enviro Ecology, Dated 13 January 2025, Document No:42025091_BDAR_V2.0).

28. The Applicant also asserted that the removal of the native vegetation was required to enable compliance with bushfire requirements and asset protection zones (APZ). As stated in section 6 of the BDAR, the positioning of the development outside endangered ecological communities (EECs) with only the APZ impacting the non-bio certified land to ensure the safety of future dwellings demonstrates avoidance and minimisation of impacts in accordance with the BC Act and the NSW Biodiversity Assessment Method (BAM). The BDAR also states that:

“the land within the APZ supports moderate to good quality vegetation but does not contain any endangered species or high-value biodiversity features that would require further protection or offsetting”. (Exhibit O, p 41)

29. The Applicant stated that the phrase in 6.3(6)(a) ‘reasonable alternative’ ‘had some work to do’ and emphasised that they could not propose infinite options and layouts for the subdivision. However, as there is no evidence of any other reasonable alternatives to the disturbance of the native vegetation the Court cannot be satisfied of this requirement.

6.3(6)(b) that as little native vegetation as possible will be disturbed:

30. The Applicant states that the removal of the 0.34ha of vegetation within the non-bio certified land for the Asset Protection Zone (APZ) is an ‘unavoidable’ aspect of the development as it is a necessary component of the proposal to ensure compliance with the RFS document Planning for Bushfire Protection 2019 (PBF 2019) specifically, sections 5.1.1 and 5.3B. Additionally, Condition 8 of the General Terms of Approval issued by the RFS on 12 June 2024 (Exhibit 3, Folio 68) refer to the specifications of access and perimeter roads ensuring they comply with the requirements in Table 5.3b of PBF 2019, whereby ‘subdivision of three or more allotments have more than one access in and out of the development.’

31. Furthermore, the layout of the development also placed other assets for the subdivision such as the stormwater detention basin in this non-bio certified area. In the JER for ecology (Exhibit 6) at [65], the Applicants expert Mr Whyte stated:

“Unlike discretionary infrastructure (e.g., drainage basins), the perimeter road and associated APZ are not optional but are a fundamental bushfire safety requirement. Relocating the road to avoid the NVR is constrained by topography (terraced benches) and would undermine the intent of PBP”

Under cross examination of the ecology experts, the Respondent challenged that the perimeter road was required because it was directly associated with the development layout for lot size and yield.

32. Additionally, the APZ was discussed in the Bushfire Joint Expert Report (Exhibit 2). The bushfire experts outline at [38] the proposed APZ of the site is located on slopes exceeding 18 degrees, and conclude in the JER (Exhibit 2, [45]) that specific geotechnical advice is required to properly consider any potential erosion risks caused by the management of the vegetation within the APZ area.

33. The Applicant has not provided this geotechnical assessment and considers that this could be a differed commencement condition of consent. However, this would not be appropriate in this circumstance as this is partially located in the non-bio certified area of the Site and may or may not require additional development disturbance which may require additional vegetation clearing. This point was noted by the Applicants ecology expert Mr Whyte who states in the JER Ecology (Exhibit 6) at [62]:

“Upon review of the bushfire expert report, it is noted that additional vegetation impacts may arise from the identification or potential extension of an Asset Protection Zone (APZ) associated with the existing dwelling. The areas affected comprise low condition vegetation consistent with PCT 3616. An amended Biodiversity Development Assessment Report (BDAR) will be required to assess and address these additional impacts. It is unlikely that the inclusion of the additional APZ area that further native vegetation will be required to be removed as these areas are dominated by exotic high threat weeds (HTW).”

34. However, without either geotechnical advice or an updated BDAR, this statement by Mr Whyte is unable to be verified.

35. Additionally, the Respondent also contended that it is not possible to determine the full quantum of disturbance impact on vegetation due to an inaccurate Arboricultural Impact Assessment (AIA). The Applicant prepared an updated AIA by Enviro Ecology (Dated 14 May 2025, Revision B, Exhibit 6). Under cross examination of the ecological experts, the Respondent highlighted that it appeared a portion of the site had not been surveyed in the vicinity of tree 221 and other several other additional mature trees had not been tagged or accurately reported in the AIA. Photos of the missing trees were outlined in Exhibit 9.

36. The Court was also shown inaccuracies in the Engineering Plans (Exhibit C) and how trees were shown to be retained or impacted due to the installation of the proposed swale drain. There was a further contention by the Respondent that the tree locations were not overlayed on civil plans to clearly understand the extent of impact on tree protection zones or structural root zones, and thereby minimise biodiversity impacts as required by the Biodiversity Assessment Method (BAM).

37. As the complete quantum of vegetation clearing impact cannot be confirmed at this assessment stage it is not possible to confirm that the overall clearing of the proposed subdivision remains as 0.34ha. This issue is also compounded with part 6.3(6)(a) above where no reasonable alternatives are established, therefore Court cannot be satisfied of the vegetation disturbance would be as little as possible.

6.3(6)(c) that the disturbance of the native vegetation will not increase soil salinity:

38. This matter is no longer pressed as a Contention by the Respondent and has been addressed in the referral by the Respondent’s Environmental Health Department (Exhibit 3, Tab 4, Folio 27) as the site is mapped as very low salinity potential in the Department of Infrastructure, Planning and Natural Resources Salinity Potential in Western Sydney 2002 Map.

6.3(6)(d) that native vegetation disturbed for the purposes of construction will be reinstated where possible on completion of construction:

39. The Applicant has prepared a Vegetation Management Plan (VMP) – Exhibit P (Enviro Ecology, Dated 13 January 2025, Revision C) for the bushland within the community association lot of the proposed subdivision. However, there is minimal revegetation or reinstatement proposed within the footprint of the subdivision, rather maintenance of APZ (including in the vicinity of the stormwater detention basin) and weed management under the transmission line easement. Refer to Figure 6 (Exhibit P, Folio 29, Figure 3-3). Based on the proposed layout of the subdivision articulated in the VMP, no reinstatement is possible in the NVR Area proposed to be cleared, and the Court cannot be satisfied that native vegetation disturbed for the purposes of construction could be reinstated where possible on completion. However, revegetation is articulated in the VMP in the portions of the community association lots below the development footprint. This is discussed in 6.3(6)(e) below.

Figure 6 - VMP Zones (Source: Exhibit P, Folio 29)

6.3(6)(e) that the loss of remnant native vegetation caused by the disturbance will be compensated by revegetation on or near the land to avoid any net loss of remnant native vegetation.

40. As outlined above, the Applicant has prepared a VMP (Exhibit P, Enviro Ecology, Dated 13 January 2025, Revision C) for the bushland within the community association lot of the proposed subdivision. Section 3.2 of the VMP discusses restoration of the disturbed areas, noting that the majority of actions of restoration are in the subject site, but below the subdivision development footprint, thereby addressing the requirement of being compensated on nearby land to avoid any net loss. Actions in the VMP consist of a combination of assisted regeneration, revegetation, easement weed removal and assisted shrub and ground cover regeneration and APZ maintenance. In the Joint Ecology Expert Report (Exhibit 6) the Applicant states at [70]:

“the proposal includes a robust Vegetation Management Plan (VMP), which will secure the restoration and long-term management of 2.9 ha of degraded land, including over 2 ha of PCT 4058 – Sydney Hinterland Red Gum River-flat Forest, a component of the River-flat Eucalypt Forest EEC. This restoration includes the planting of 50,000 native plants”

41. Council also raised concerns at [93 and 94] of Joint Expert Ecology Report with regards to the lack of a community management statement relating to the perpetuity of the VMP and its intention to be managed by the community association, rather than tied to individual residential lots. However, the Applicants expert at [95] asserts that a community management statement is not a prerequisite for the preparation or implementation of a VMP and that there are other governance frameworks available to ensure that the VMP is implemented and enforceable.

42. Based on the above, the Court can be satisfied that native vegetation disturbed for the purposes of construction could be reinstated where possible on completion of construction, outside of the area of the subdivision within the community association lot.

6.3(6)(f) that no more than 0.5 hectare of native vegetation will be cleared unless the clearing is essential for a previously permitted use of the land.

43. The Applicant proposes to clear 0.34ha of PCT 3616 as outlined in the BDAR (Exhibit O, Folio 47), however as articulated in the above sections, there is still basic preliminary assessment work that needs to be revisited by the Applicant to quantify the level of impact on trees and vegetation including undertaking geotechnical assessments, overlaying the extent of civil works on tree root zones, and updating the AIA to confirm this is the complete extent of impact. Without this, there is no certainty able to be provided that no more than 0.5ha of native vegetation will be cleared.

44. There is still more work that needs to be completed by the Applicant to prove compliance that no more than 0.5ha of native vegetation would be removed. As stated by Preston J in: Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641:

“[2] An applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed.”

45. Regardless of the assumed vegetation classification, the impacts on vegetation are still not able to be fully quantified at this assessment stage. Therefore, the Court cannot be satisfied that no more of 0.5ha of vegetation will be removed and must be refused.

Conclusion

46. After considering the E4 Environmental Living Zone objectives and the constraints of the site relating to slope, easements, bushfire and flood prone land and the relevant legislative requirements, the Court cannot be satisfied that the jurisdictional prerequisites for determination have been met.

47. Specifically, these pertain to the following:

48. The AIA and the BDAR submitted by the Applicant contain incomplete and/or inaccurate information, particularly regarding the impact on trees and the classification of Plant Community Types.

49. The documentation fails to demonstrate that impacts on native vegetation have been properly avoided or minimised, as required under the Biodiversity Conservation Act 2016 (NSW).

50. The extent of impact on native vegetation has not been accurately quantified during the assessment stage, with further joint expert reports calling for additional assessments which may or may not increase clearing or impact areas and compromises the integrity of the ecological evaluation.

51. As a result, the application cannot proceed under deferred commencement conditions. The necessary information must be provided and verified before any determination of consent can be considered. Accordingly in the absence of the valid information for the exercise of power, the development application must be refused.

orders

49. The Court orders that:

50. The appeal is dismissed.

51. Development Application 938/2023/ZD for the subdivision of a Community Title subdivision of fourteen (14) residential lots, one (1) association lot and associated road construction and civil works is determined by refusal.

52. The exhibits are returned except Exhibits A and 1 which are retained.

L Coetzee

Acting Commissioner of the Court

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