The applicant's position that there is no adverse impact
Mr Blake submits that the proposed development does, in fact, avoid the impact on the BGHF by siting the built form to remove only two trees, and minimises it by proposing plantings that will restore the site so that there is no net loss of vegetation or habitat. In addition, Mr Blake relies on the evidence of Dr Robertson that the corridor and the connection to the area of significance that is mapped is maintained and ultimately, extended. Further, because the plantings include putting back mid-storey and ground covers, Mr Blake submits that it enhances the vegetation and the ability for movement of fauna through the site. As such, the submission is that, even without consideration of the offsets, there is no adverse impact.
With respect to the BDAR, Mr Staunton, counsel for Mr Blake, points out that the Biodiversity Assessment Method does not require the BDAR to assess the viability of different proposals or to address the different zone objectives. Mr Blake submits that the BDAR has acceptably considered the Biodiversity Assessment Method of avoidance, and provided suitable justification. He submits that the BDAR has complied with Sections 7.1.1 and 7.1.2 by setting out different options for the layout of the proposed development. Mr Blake submits that it is entirely reasonable to consider the planning context of the site, and that although option 2 (of Figure 13) was the preferred option, it was not pursued because it did not avoid or minimise the impact on the BGHF. Given the arboricultural assessment of T26, the only option that would retain all of the trees would be option 5, and Mr Blake submits that it is clear that option 5 results in an FSR of approximately what currently exists on the site which means that there is no incentive to redevelop the site.
In that context, Mr Blake submits that he has minimised the impact on the BGHF by the retention of three trees, and points out that it cannot be claimed that avoidance and minimisation has not been achieved. Mr Blake says that the Council's position is merely that more should be done.
Mr Blake therefore submits that each of the matters required to be satisfied in cl 6.3 of the KLEP 2015 and the KDCP 2020 are met. Further, in relation to the determination of whether there is serious and irreversible impact, Mr Blake submits that there does need to be focus on the chapeau in cl 6.7 of the BC Regulation, which requires that an impact "is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct" on the basis of any of (a) to (d). In circumstances where Mr Whyte's evidence ignores that chapeau, Mr Blake submits that his evidence must be rejected. Mr Blake instead relies on Dr Robertson's evidence that, even if you were to confine the consideration to the removal of the area of BGHF (and ignoring the proposed plantings and enhancement of the BGHF to result in no net loss), the percentage of BGHF being removed will not "contribute significantly" to the ecological community becoming extinct, given its overall population of either 758ha based on recent studies, or 180ha based on the scientific determination. Further, Mr Blake points out that the assessment of serious and irreversible impact "means serious and irreversible impacts on biodiversity values as determined under section 6.5 that would remain after the measures proposed to be taken to avoid or minimise the impact" (see s 7.16(1) of the BC Act), and that the proposed plantings and the VMP, which cause there to be no net loss of BGHF, therefore ensure that there is no serious and irreversible impact. Mr Blake also submits that, to the extent there's any residual impact, the proposed development offsets it three times through the NSW Biodiversity Offset Scheme.
In relation to the objective in cl 4.4 for the FSR development standard, Mr Blake submits that whilst the environmental constraints of the site can be considered in an assessment of the impacts of the development and site suitability under s 4.15(1) of the EPA Act, there is no separate requirement to be satisfied that the objectives of cl 4.4 are met. This submission is consistent with the decisions of Preston J in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [43], and Robson J in Wenli Wang v North Sydney Council [2018] NSWLEC 122 at [38]-[41].
[2]
The proposed development does not have an unacceptable impact on the endangered ecological community
The Council's contentions concerning the ecological impact of the proposed development are framed by reference to the impact on the BGHF endangered ecological community. That is, they are not framed by reference to the acceptability of the removal of two trees based on their significance, and there is no arboricultural evidence furnished by the Council that contradicts the evidence in the arborist report (Ex B).
Contrary to the position of Mr Whyte, the fact of the removal of two BGHF trees, of itself, is not sufficient to establish that there will be an unacceptable impact on the endangered ecological community. The proposed development needs to be considered as a whole, and its impacts considered in the legislative framework established by the BC Act and the EPA Act. The latter includes consideration of cl 6.3 of the KLEP 2015, which contains some matters that are prerequisites to the grant of development consent. It also includes consideration of the KDCP 2020 as a "focal point", but, contrary to the position of Mr Whyte, it is well established that a development control plan cannot operate to prohibit the carrying out of development: see Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 at [74].
In considering the development as a whole, and for the reasons that are set out below, I find that the proposed development avoids and minimises its impact on the BGHF by siting the development so as to ensure the retention of three trees, by proposing plantings that will restore a greater diversity in BGHF species than what is currently on the site, including an established mid-storey, and by proposing a VMP that will ensure the ongoing maintenance of the BGHF community in an area of the site that is equivalent to the current area of BGHF community on the site.
[3]
The biodiversity development assessment report is adequate
As set out above, s 7.7(2) of the BC Act requires that a BDAR accompany an application for development consent if "the proposed development is likely to significantly affect threatened species". Without considering the question as to whether the proposed development that is before the Court "is likely to significantly affect" the BGHF endangered ecological community (based on the test in s 7.3 of the BC Act) the BDAR dated 16 April 2021 now accompanies the development application the subject of the appeal.
On the assumption that a BDAR is required on the basis that the proposed development meets s 7.7(2), I consider that the BDAR dated 16 April 2021 acceptably addresses the matters required by s 6.12 of the BC Act. It assesses the biodiversity values of the land by reference to the matters raised in each of the chapters in the Biodiversity Assessment Method concerning Stage 1 Biodiversity Assessment, consistent with s 6.12(a) and it assesses the impact in accordance with the chapters concerning Stage 2 Impact assessment, consistent with s 6.12(b). This includes, pursuant to s 6.12(c) of the BC Act, setting out the measures that the proponent of the proposed development will take to avoid or minimise the impact. Those measures are set out in Part 7 of the BDAR, as well as in Part 8.5 and 8.6, which outline the mitigation measures that minimise the impact.
One of the measures the BDAR identifies in Part 7 to avoid the impact is to pursue a massing option that avoids the impact on three BGHF trees, and this was compared to various other massing options in Figures 12 and 13. I do not accept the Council's position that the discussion of these alternatives is deficient in some way. I accept the submission made on behalf of Mr Blake that the Biodiversity Assessment Method does not require the justification as to why different schemes are not pursued on a planning basis. The BDAR adequately considers the different massing options, adequately justifies why the selected massing minimises the impact on the BGHF when compared to other designs, and outlines why other options are not pursued. I do not accept the Council's submission that the BDAR is required to take this further by providing evidence of the economic viability of the options that are not pursued.
Further, the BDAR adequately specifies, in accordance with the Biodiversity Assessment Method, the number and class of biodiversity credits that are required to be retired to offset any residual impacts that may arise.
The BDAR therefore meets the description required by s 6.12 of the BC Act. I consider the adequacy of the efforts to avoid and minimise the impact of the proposed development on the BGHF community immediately below.
[4]
The proposed development avoids and minimises the impact on the endangered ecological community
The Court, in exercising the function of the consent authority, is required by s 7.13(2) of the BC Act to consider the "likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application". However, I am not limited to the BDAR in considering the impact of the development (s 7.13(6)(a)).
On the basis of the content of the BDAR, and the evidence of Dr Robertson, I am satisfied that the proposed development has minimised its impact on the BGHF by siting the development so as to avoid the maximum potential impact, by ensuring the retention of three large canopy trees, by proposing plantings that will result in no net loss of BGHF community, by plantings that comprise a range of species that improve the structure of the BGHF community with grasses and mid-storey species, and by the implementation of the VMP for the ongoing management of an area that is the equivalent area of BGHF currently on the site. I accept the evidence of Dr Robertson that the condition of the current BGHF on the site is of low quality because it lacks an intermediate structure and contains weed species, and that the proposed development will benefit the site by having that component of the biodiversity replanted, with the VMP resulting in a level of protection into the future. As such, I accept the submission of Mr Blake that, when considering the proposed development in its entirety, it does not have an adverse impact on the BGHF community and on biodiversity values.
When having regard to each of the massing options in the BDAR, the only proposal that would completely avoid the removal of trees is one with a FSR the same as what is currently on the site, with two dwelling houses. It is axiomatic that this will not incentivise development for higher density, which means that the objective of the zone, to "provide a transition between low density residential housing and higher density forms of development", will not be achieved. That is precisely what is outlined in the BDAR. I do not accept the Council's submission that Mr Blake is required to take this further by providing evidence of economic viability of this option. The site, located between the high density zoning and the low density residential housing in the E4 zone, presents an opportunity for medium density housing that provides that transition. I accept the evidence of Mr Chapman that a FSR equivalent to what is already on the site will not incentivise re-development of the site to achieve the density envisaged to provide the orderly use of the site to achieve that transition. There are then two other proposals in Figure 12 of the BDAR that retain T26, but the arboricultural assessment, which is recited in the BDAR, clearly establishes that this is a medium value retention tree that is recommended for removal. As such, all other massing options would result in the removal of the same number of BGHF trees.
Further, I do not accept the Council's submission that the proposed plantings and the VMP cannot be considered as part of the proposed development, and can only be considered as measures to offset the impact of the proposed development. The proposed plantings are on the site and form part of the development application, and the VMP concerns the ongoing management of the site, and is similarly part of the proposed development of the site. Therefore, in considering whether the proposed development has avoided and minimised the impact on the BGHF, I can consider both the proposed plantings in the landscape plan, and the ongoing management of the BGHF species on the site with the VMP.
Further, I do not accept the evidence of Mr Whyte that I ought to discard the plantings as not constituting BGHF community because it is not on the area mapped as 'biodiversity' in the KLEP 2015 or mapped in the KDCP 2020. Instead, I accept the evidence of Dr Robertson that there is a considered replanting of trees, shrubs, herbs and grasses that will increase diversity, to create a better structure of BGHF across the site and into the front of the site, which provides a potential stepping stone link to the reserve in the east on the other side of the street.
[5]
The impact is not serious and irreversible
As set out above, s 7.16(2) of the BC Act precludes the grant of consent in the event that there is a serious and irreversible impact on biodiversity values. I consider that there is not such an impact. In considering whether there is a serious and irreversible impact in accordance with cl 6.7 of the BC Regulation, I accept Mr Blake's submission that regard must be had to the chapeau to subcl (2). In doing so, I consider that none of the matters in (a) to (d) have been established by the evidence as causing an impact that is likely to "contribute significantly to the risk of [the BGHF] becoming extinct". I reach this conclusion for two reasons.
Firstly, even ignoring the benefits offered to the biodiversity of the local BGHF community by the proposed development, the removal of the two trees and associated BGHF species in the amount of 0.07ha is quite small in the context of the size of the patch in the local community, and will have negligible impact given the size of remaining BGHF community both in the scientific determination and in recent studies. I accept the evidence of Dr Robertson that the clearing of two trees within the subject site corresponds to an impact of between 0.009% to 0.04% of the current geographic extent of BGHF community in NSW. I accept his evidence that the extent of removal is so small that it cannot be said that it is likely to contribute significantly to the risk of the BGHF becoming extinct. As such, any decline or reduction in the community on the site that meets the description of the words following subcl (a), (b) or (c) does not cause the outcome stipulated by the chapeau in cl 6.7(2), and therefore cannot be regarded as a serious and irreversible impact.
Secondly, the proposed development will result in greater diversity in the BGHF community on the site, in a total area that is equivalent to where the current low standard BGHF is located on the site, and will be managed into the future through the VMP. As such, once established, it will contain a diversity of species across the ground cover, mid storey and canopy trees that is not achieved on the site at present. I accept the evidence of Dr Robertson that this will then create opportunities to connect with BGHF to the east of the site. As such, there can be no doubt that the ecological community will have improved vegetation integrity as a result of the proposed development, and the development will not be likely to "contribute significantly to the risk of the BGHF becoming extinct". The delay in the rough barked apple trees reaching maturity does not dissuade me from this conclusion.
For those reasons, I consider that, in accordance with cl 6.7(2), the impact on diversity values cannot be regarded as serious and irreversible.
Further, I note that, to the extent there's any residual impact, the proposed development offsets it three times through the NSW Biodiversity Offset Scheme, through which a contribution will be made to enhance BGHF into the future.
[6]
The matters required by cl 6.3 are satisfied
Consistent with my consideration above, each of the matters about which I am required to be satisfied pursuant to cl 6.3 of the KLEP 2015 are met. In reaching that state of satisfaction, I am assisted by the evidence of Dr Robertson, the content of the BDAR and the Clause 6.3 assessment carried out by Cumberland Ecology.
Pursuant to cl 6.3(3), I am required to consider the impact of the proposed development on the matters set out in subcl (3)(a), what measures are taken to ameliorate potential adverse environmental impact, and any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors. In doing so, the impacts on the native vegetation community (see subcl (3)(a)(i)) are limited to the loss of around 0.07ha of BGHF, but this is minimal when compared to the 11.66ha patch to which it belongs. Further, I accept the evidence of Dr Robertson that the plantings, which form part of the development, will provide a better diversity of species in the native vegetation community.
With respect to the requirement to consider the impact on the "habitat of any threatened species, population or ecological community" (cl 6.3(3)(ii)), the relevant ecological community is the BGHF and I similarly consider that the proposed development will not adversely affect the BGHF in circumstances where the area of land containing BGHF species pursuant to the proposed development will be the same as what is currently on the site, with the proposed development creating a better structure for the community, which will be managed into the future through the VMP. Further, I accept the evidence in the Clause 6.3 assessment that the vegetation to be removed is likely to provide foraging resources, but that the lack of hollows means that it is unlikely that it comprises significant breeding habitat for threatened fauna. In considering the impact on any biodiversity corridor (cl 6.3(3)(iv)), I accept that the existing patch of BGHF has connected and overlapping tree canopy that spans numerous properties, where boundaries of properties are fenced. Therefore, at the level of tree canopy there is connectivity that provides habitat for birds, bats, flying foxes and non-flying arboreal mammals. However, the vast majority of the tree canopy is retained, and the proposed development removes only two trees on the very edge of the larger patch. There is no impact on any regionally significant species, any wetland, the biodiversity values within any reserve or the stability of the land, as none of these were detected on the site and the proposed development is not expected to impact the stability of land or the land adjacent to it (see Ex B Tab 7).
In considering the matters required by cl 6.3(3)(b) and (c) of the KLEP 2015, the proposed measures to be undertaken to ameliorate any potential impact include the retention of 0.04ha of BGHF, the plantings of species of BGHF community across the site to improve the composition of the BGHF in the retained area and to provide additional areas of species characteristic of BGHF, and the ongoing management of the total area of 0.11ha through the VMP. This will also enhance the remnant vegetation, and improve the biodiversity corridor by creating potential connections with the BGHF to the east of the site.
In accordance with cl 6.4(4)(a) of the KLEP 2015, development consent must not be granted unless I am satisfied that the development is consistent with the objectives of the clause. I am satisfied that the development protects, maintains and improves "the diversity and condition of native vegetation and habitat" by retaining three large mature canopy trees that are characteristic of the BGHF and by proposing the planting of ground covers, mid-storey vegetation, seven Angophora floribunda (Rough Barked Apple) trees and 2 Angophora costata (Sydney Red Gum), which, when compared to the composition of BGHF on the site at present with the presence of weeds, will promote and restore the biological diversity of the flora and provide habitat for fauna, consistent with cl 6.3(1)(b). I accept the evidence of Dr Robertson that the improvement in the biological diversity through the plantings and the VMP will protect the ecological processes necessary for their continued existence, will encourage the recovery of the BGHF and provide habitat to facilitate the movement of fauna in the locality, consistent with each of cl 6.3(1)(b), (c) and (d).
Further, in accordance with cl 6.4(4)(b), I am satisfied that the development "is designed, and will be sited and managed, to avoid any potentially adverse environmental impact". The development has avoided a potential adverse environmental impact by siting the built form so as to avoid the maximum potential impact and retaining three large canopy trees that are characteristic of BGHF. The development is also managed to avoid any potential adverse environmental impact by the inclusion of plantings that will result in no net loss of BGHF community, by plantings that comprise a range of species that improve the structure of the BGHF community with grasses, mid-storey species and 9 trees, and by the implementation of the VMP for the ongoing management of an area that is the equivalent of area of BGHF currently on the site. Therefore, when considering the development as a whole, there is no adverse environmental impact.
I am therefore not required to consider the matters that arise under cl 6.3(4)(b)(i)-(iv). Nevertheless, I consider that, for the same reasons, the development minimises disturbance and adverse impacts on the remnant BGHF community, includes measures to maintain native vegetation and habitat across a sufficient parcel of land to facilitate biodiversity protection and movement through biodiversity corridors, and that the plantings and VMP are measures to ensure that there is no net loss of significant vegetation and habitat.
[7]
The proposed development complies with the controls in the KDCP 2020 or otherwise achieves the objectives
For the same reasons, I am satisfied that the proposed development complies with Part 18 of the KDCP 2020, or otherwise provides an alternative solution that meets the objectives therein.
Firstly, Part 18.3 applies to the proposed development and contains the following objectives and controls relied upon by the Council:
"18.3 CATEGORY - SUPPORT FOR CORE BIODIVERSITY LANDS
Objectives
1 To support core areas of vegetation and fauna habitat.
2 To contribute to the protection and recovery of Key Vegetation Communities, threatened species, populations and their habitats.
3 To contribute to the protection, restoration and management of Biodiversity Corridors.
4 To contribute to the protection, restoration and management of vegetation and habitat in riparian lands.
5 To contribute to the net improvement of ecological function.
Controls
…
Biodiversity Corridors have been located in positions of strategic importance, providing linkages between natural habitat areas such as formal reserves or remnant patches. Whilst these corridors typically contain barriers, including buildings, roads and infrastructure or discontinuous vegetation, they are important stepping stones or refuge sites for movement and dispersal of mobile species between more extensive habitat areas.
…
3 Vegetation retention and rehabilitation must be designed to enhance and link existing vegetation and habitat within the site and within adjacent sites, Biodiversity Corridors and riparian lands.
…"
Although the proposed development locates development on area identified as "Support for Core Biodiversity Lands" on the Greenweb map, which means that it does not completely avoid that area, contrary to the first control in Part 18.3, the proposed development includes plantings that will ensure that there is no net loss of vegetation, that the vegetation will have greater diversity of BGHF species across the ground, mid-storey and canopy, and the VMP will ensure that it will be protected and managed into the future. This means that each of objectives 1-5 are met notwithstanding that the first control has not been complied with. Each of the remaining controls in Part 18.3 are met.
Secondly, Part 18.5 applies to the proposed development, and contains the following controls and objectives relied upon by the Council:
"18.5 CATEGORY - BIODIVERSITY CORRIDORS AND BUFFER AREAS
Objectives
1 To manage areas providing a buffer to Core and Support for Core Biodiversity Lands.
2 To reduce edge effects and to improve the health, connectivity and function of local ecosystems.
3 To revegetate and restore Biodiversity Corridors, significant vegetation and habitat across the landscape.
Controls
…
1 Within Biodiversity Corridors and Buffer Areas (refer to maps in 18R.1 of this Part):
i) The siting and design of development must minimise edge effects on Greenweb.
ii) Planting is to consist of:
- not less than 50% locally native species;
- species that reflect the relevant vegetation communities within the area; and
- a mix of groundcover, shrubs and trees.
iii) Within Biodiversity Corridors (refer to maps in 18R.1 of this Part):
- landscaping and revegetation must be designed to consolidate fragmented and linear vegetation and habitat areas within the site and adjacent sites.
- the width of Biodiversity Corridors should be enhanced and gaps and barriers reduced or minimised
…"
I accept the evidence of Dr Robertson that the controls in Part 18.5 are each satisfied (see Ex 7 p 26). His evidence, which was not changed or modified in cross-examination, is as follows:
"The project is consistent with Part 18.5. The project will remove two trees on the edge of a larger patch of Blue Gum High Forest which likely comprises >250 trees (see Appendix D). Through retention of 0.04 ha (or three trees) and replanting of 0.07 ha (including nine trees) the subject site will continue to contribute to the local biodiversity corridor. Furthermore, the occurrence of Blue Gum High Forest will be further enhanced under a VMP with the replanting of a more diverse understorey which will provide additional biodiversity values to the local biodiversity corridor.
At present, on the subject site there is no active management for conservation and there is erosion of greenweb values from weed invasion, surface flows that presumably contain nutrients, and other factors. There is also no replanting of native vegetation. Under the proposal, the edges of the retained greenweb vegetation will be managed and maintained."
The evidence of Mr Whyte, who simply focuses on the removal of the two trees and ignores the improvement that will result from the development, is not sufficient to contradict the evidence of Dr Robertson, and I am satisfied that the design of the development will minimise edge effects on Greenweb, that the planting meets the requirements of control 1(ii), and that the landscaping and revegetation provides continuity that seeks to consolidate fragmented and linear vegetation and habitat areas on the site with the patch at the rear of the site and the BGHF community to the east.
Part 18.7 of the KDCP 2020 also applies, and requires that there be no net loss of biodiversity as follows:
"18.7 NO NET LOSS OF BIODIVERSITY
Objectives
1 To ensure maintenance of vegetation (particularly) canopy within the LGA, Covering a range of habitats, species and age classes. In recognition of the social and ecosystem services provided.
2 To facilitate continuity of the ecological diversity currently alive in the locality.
3 To increase the level of security for significant vegetation and habitat.
4 To allow for reasonable development while maintaining and enhancing biodiversity and ecological integrity.
5 To provide a range of mechanisms to achieve no net loss of significant vegetation or habitat.
6 To ensure that where biodiversity values need to be offset, policy requirements are applied consistently across developments and in such a way as to enhance the ecological integrity across the LGA.
Controls
1 Development proposals must seek to achieve no net loss of significant vegetation or habitat. Retention of vegetation and habitat in situ is the preferred method of biodiversity conservation. In the event that loss of vegetation is unavoidable, the loss must be mitigated and/or offset.
Note: Both informal compensatory measures and formal offsetting include a number of ecological, administrative and financial risks. The inclusion of such measures within a proposal does not preclude Council requiring redesign of, or refusing consent to, a proposal on grounds of biodiversity loss.
2 Any application for works within the Greenweb, must be accompanied by a proposal to protect, enhance or create habitat on or off site, where it:
i) requires the removal of native vegetation; or
ii) will negatively affect actual or potential habitat of fauna or flora; or
iii) is likely to cause degradation to vegetation or habitat.
3 No net loss of significant vegetation or habitat may be achieved by:
i) retention and protection of existing significant vegetation and habitat; or
ii) informal compensatory measures:
- planting and habitat creation, especially where it improves connectivity;
- rehabilitation of degraded areas; or
- translocation of plants or soils;
Note: Where disturbance to intact, resilient natural soil profiles (that are likely to contain a healthy native seedbank) is to occur, translocation to and establishment within a viable recipient site is a key action towards no net loss of significant vegetation or habitat.
Note: In certain circumstances Council may request that native flora, fauna, natural features (e.g. rocks, logs) or viable soil profiles are translocated. This material may be used by the proponent, Council or other relevant authority to aid either in the offsetting site or other restoration program.
iii) formal offsetting measures: such as offsetting on or off site in accordance with Part 7A of the NSW Threatened Species Conservation Act 1995 (also known as Biobanking).
…
5 Any proposal involving an offsetting mechanism, on or off site, must be in accordance with the following principles:
i) Principle 1: Avoid, Minimise and Mitigate
- Offsetting will only be considered once all efforts to avoid, minimise or mitigate any negative impacts have been exhausted.
ii) Principle 2: Improve or Maintain Overall Biodiversity
- In order to achieve no net loss, offsetting must seek to improve or maintain overall biodiversity.
- Offsetting must not be used as a justification for granting approval to developments, where the cumulative impacts are greater than the benefit to be obtained from the offset action.
- Offset sites are to be identified and selected in accordance with regional and local conservation priorities. Offset sites and actions must be assessed according to their long-term viability.
iii) Principle 3: Like for Like
- The area which receives offset actions (the offset site) must contain or restore the same ecological community or threatened species/population habitat as the area which is being adversely impact by the development or activity (the impact site).
- Within areas where one vegetation community grades into another (ecotone areas) flexibility will be permitted. Similarly, Council will consider offsetting to adjoining vegetation communities where a benefit to the relevant community is demonstrated.
- Where a proposal will impact an area of known breeding or key habitat for threatened species, the offset site must include known habitat for that species (i.e. the species is known to be present).
- Offsets that are not like for like will only be considered where no suitable 'like for like' offset is available or the alternate offset will provide a net biodiversity benefit of equal or greater ecological significance within the bioregion.
iv) Principle 4: Supplement Existing Protection and Management
- Offsets must be supplementary and provide for increased extent, improved condition and/or protection.
v) Principle 5: Enforceability
- Offsets and their actions must be enforceable and include monitoring and reporting to ensure that the actions have been carried out, and are leading to positive biodiversity outcomes.
vi) Principle 6: The Precautionary Principle
- In conducting an offsetting action the precautionary principle must be applied. This principle requires that a conservation approach be taken, where there is uncertainty or lack of scientific confidence in an action and there are threats of serious or irreversible environmental damage.
6 An offsetting action will not be appropriate if:
i) the applicant fails to adequately demonstrate to Council's satisfaction that all measures to address the offsetting principals in Clause 4 have been taken.
ii) the proposed development is an inappropriate use of the land subject to the proposal, as assessed under the NSW Environmental Planning & Assessment Act 1979 and any local plans, policies or strategies.
iii) the applicant has failed to adequately demonstrate to Council the need for the offsetting action.
iv) the environmental impact in the development site is unacceptable. An example of how this may arise is where there is a likelihood of irreplaceable loss of biodiversity values that will not be adequately compensated by the proposed offsetting actions."
Consistent with my findings above, I am satisfied that the development complies with all of these controls. The proposed development complies with the first control, by retaining 3 mature canopy trees characteristic of the BGHF and by fully mitigating the loss of vegetation by the proposed plantings and VMP, such that there is no net loss of significant vegetation and such that the vegetation will be enhanced. The remaining controls clearly contemplate this as an acceptable outcome. I accept the evidence of Dr Robertson that:
"In accordance with the controls of Part 18.7, the project will seek to achieve no net loss of significant vegetation or habitat through a combination of on-site retention, mitigation through replanting and enhancement of existing vegetation, and formal offsetting of ecosystem credits under the BAM. Furthermore, in accordance with the Principle 6 of Control 5 'The Precautionary Principle', the offsetting proposed for the project involves the retirement of three times the required number of ecosystem credits under the BAM."
This evidence is not contradicted by Mr Whyte, who agreed in cross-examination that there was no net loss of biodiversity "with the actions that are put forward in the application" including the biodiversity offset credits (Tcpt, 16 June 2021, p 105 (38-40)).
The Council also contends that the removal of the trees is contrary to the controls in Part 21.2 of the KDCP 2020, which requires that:
"1 The site planning and design of developments must:
i) retain and enhance indigenous vegetation, biodiversity corridors and existing natural features on the site including trees, shrubs and groundcovers, soils, rock outcrops and water features. These provide habitat, breeding sites, food and shelter for a wide variety of life forms and ecological processes that support life and define the character of the locality.
Note: Specific controls for the areas mapped for their biodiversity significance on the Greenweb map in Part 6R are included in Part 6 of this DCP.
ii) retain significant and visually prominent trees and vegetation that contributes to neighbourhood character;
…
7 Vegetation retention must consider the following:
i) healthy specimens that have a high Safe Useful Life Expectancy are to be the first priority for retention;
ii) trees within heritage items or heritage conservation areas are to be assessed in terms of heritage significance;
iii) mature trees and hollow-bearing trees within biodiversity areas are a priority for retention; and
iv) while single trees may be ecologically important in their own right, or as part of a broader community, retaining and planting trees in groups."
I consider that the site planning and design of the proposed development meets the control at 1(i), on the basis that the site planning and design of the development retains 3 of the 5 trees and enhances the indigenous vegetation by proposing plantings that will improve the structure of the BGHF community with grasses and mid-storey species, and by the implementation of the VMP for the ongoing management of an area that is the equivalent of area of BGHF currently on the site.
In relation to the control at 1(ii), there is no evidence to support Mr Whyte's opinion that the trees to be removed are "significant and visually prominent" or that they contribute to neighbourhood character. The principles in control 7 provide guidance on the priority for retention, but the requirement for retention arises from control 1(ii). The mere repetition of the control by Mr Whyte is not sufficient to establish a foundation for the opinion that there is a breach of control 1(ii). Even if I was to accept that control 1(ii) has not been met by the proposed development because of its removal of two trees that have high Safe Useful Life Expectancies, s 4.15(3A)(b) requires that I consider alternative solutions that meet the objectives of the control.
There are a large number of objectives within Part 21.2, the most relevant of which are:
"1 To contribute to the landscape character of Ku-ring-gai.
2 To ensure landscape design and species selection is suitable to the site and its context and considers the amenity of residents and neighbours.
3 To increase the resilience of significant vegetation and habitat, through the improvement of condition, extent and connectivity of vegetation"
I consider that the landscape design for the proposed development, including the retention of three trees, is an alternative solution to the retention of all 5 trees which achieves each of these objectives. For reasons that I have already expressed in various ways, I consider that the proposed plantings in the landscape plan, and the removal of weeds, are suitable for the site and its context, and, by increasing the biodiversity of the site through plantings of a range of BGHF species, it will increase the resilience of the vegetation "through the improvement of condition, extent and connectivity of vegetation". In addition, the extension of BGHF species to the front of the site in the landscape plan will contribute to the landscape character of Ku-ring-gai, and the landscaping throughout the site will provide amenity to residents and neighbours.
[8]
The objective of cl 4.4 of the KLEP 2015 does not require separate consideration
I do not accept the Council's position that I am required to be satisfied that the proposed development meets all of the objectives of cl 4.4, which includes the objective to "enable development with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship". Instead, I accept Mr Blake's submission that there is no separate requirement to do so. As set out by Robson J in Wenli Wang v North Sydney Council [2018] NSWLEC 122 at [39]-[41], concerning the objectives of the height development standard:
"39 I agree with the position of the parties' representatives in relation to the application of the objectives. Although the maximum set by a development standard is not a right, a development is taken to comply with the objectives of a standard where compliance with the standard is achieved. This is made clear by the chapeau of cl 4.3(1) which provides that what follows are the "objectives of this clause" as opposed to the objectives of the development. The clause is the development standard set by cl 4.3(2).
40 The objectives of the standard have relevance where an applicant seeks to vary the development standard by way of a request pursuant to cl 4.6. The consent authority must then be satisfied that the objectives of the clause are met notwithstanding the breach of the development standard. Such a request is not required in the present case as the proposed development complies with the 8.5 metre building height development standard.
41 Accordingly, I find that the objectives of the development standard are of limited assistance in the present case. In those circumstances it is not necessary to make a finding as to whether the objective of promoting "the retention and, if appropriate, sharing of existing views" is achieved by the proposed development."
Similarly, the proposed development is taken to comply with the objectives of the FSR development standard where compliance with the FSR development standard is achieved. It is not necessary to make a finding as to whether the objective to "enable development with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship" is achieved by the proposed development.
I do not accept the Council's submission that the decision of Moore J in Barrak v City of Parramatta Council [2018] NSWLEC 67 is authority for a contrary proposition - in that matter there was a breach of the relevant development standard so the objectives of that standard were indeed a relevant matter for consideration. Further, a finding that there was no error in law for a Commissioner to have regard to an objective of a development standard is not equivalent to a finding that it is mandatory to be satisfied that the objective is met.
[9]
Accessibility of the dwellings
The Council contends that the nominated platinum level dwellings (TH9 and TH10) do not meet the requirements of the Livable Housing Design Guidelines (LHDG), which are required to be met by Part 6C.5 of the KDCP 2020 at control (3), on the basis that there is no bedroom on the ground floor. Further, the Council contends that the proposed stairs in all other dwellings do not comply with control 21 in Part 6C.6 of the KDCP 2020 as they contain winders in the staircases.
In support of its contention with respect to the requirements of the LHDG, the Council says that although the Livable Platinum Level Plan shows that a queen bed and circulation area fits within the family room on the ground floor, this does not meet the definition of bedroom under the KDCP 2020 as it is not enclosed as its own room. The definition of bedroom is "any habitable room, which in the opinion of Council, is capable of being used as a bedroom." The requirement of the LHDG is that "there is a space on the ground (or entry) level that can be used as a bedroom".
I do not accept that either of these matters warrant the refusal of the development application. Firstly, I consider that the space on the ground floor of TH9 and TH10 is sufficient to be used as a bedroom and there is no requirement in the LHDG for that area to be separately closed off from the entrance or living areas by walls. In any event, there is a bedroom on the upper level that can be accessed by an internal lift, and the access to that bedroom will comply with the LHDG upon the imposition of a condition that requires the corridor widths to be designed to meet 1.2m and the doors to meet 0.9m. This is contained in the parties' agreed conditions of consent, in the following terms:
"Apartments (9 and 10) identified as Platinum - The corridor within Bedroom 1 in apartments 9 and 10 is to be designed with a corridor width of 1.2 metres and the doors to Bedroom 1 (from the corridor and the ensuite) are to have width of 0.9 metres."
Secondly, although winders are discouraged by Part 6C.6 of the KDCP 2020, they nevertheless comply with the Building Code of Australia and the proposed development includes lifts in each unit in the event that winders are difficult for residents or visitors to manage.
Thirdly, Mr Clark has agreed to a condition for a back-up generator to be installed "that serves as a failsafe to ensure operation of the lifts in the event that there is a power outage". This will allow there to be an uninterrupted power supply in the event that there is a power failure that would otherwise prevent the operation of the lifts that provide access to the bedroom on the upper floors of dwellings TH9 and TH10, and that provide alternatives to using the winders.
[10]
Development consent should be granted
For the reasons that are set out above, I am satisfied that the proposed development does not have an adverse impact on the BGHF community, and that none of the other matters raised by the Council or by the resident objectors warrant refusal of the development application. I am satisfied that the proposed development is appropriate for the site, and provides an appropriate scale and presentation to transition between the higher density residential development to the north and the low density residential development in the E3 zone to the south west. Additionally, I am satisfied that the following preconditions to the exercise of the Court's jurisdiction have been satisfied:
Development consent can be granted notwithstanding the contravention of the height development standard, consistent with cl 4.6(2) of the KLEP 2015 (see [34]-[44]).
The proposed development complies with the remaining applicable development standards in the KLEP 2015.
The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000.
Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 - Remediation of Land. As the site has a history of use for the purposes of a residential dwelling, it is unlikely to be contaminated.
Development consent should therefore be granted, subject to the conditions of consent as agreed between the parties. I note that this includes a condition requiring the retirement of credits or the payment to the Biodiversity Conservation Fund, based on the assessment in the BDAR that this will offset any residual loss of BGHF in accordance with the requirements of the Biodiversity Offset Scheme.
The Court orders that:
1. Leave is granted to the applicant to rely on the amended Clause 4.6 Variation Request dated 28 July 2021.
2. The appeal is upheld.
3. Development consent is granted for the construction of a multi dwelling housing development comprising 12 dwellings, basement parking and associated works at 5-7 Duff Street, Turramurra, subject to the conditions of consent in Annexure A.
4. Exhibits 1, 2, 3, 5, 6, 8, E and F are returned.
………………………..
J Gray
Commissioner of the Court
Annexure A (503440, pdf)
[11]
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: 13 August 2021
Parties
Applicant/Plaintiff:
Blake
Respondent/Defendant:
Ku-ring-gai Council
Cases Cited (13)
The local environmental plan is repealed following the hearing
After three days of hearing on 15-17 June 2021, I reserved judgment on the appeal. Subsequently, on 28 June 2021, the applicable environmental planning instrument relied upon by the parties at the hearing, the Ku-ring-gai Local Environmental Plan (Local Centres) 2012, was repealed by the Ku-ring-gai Local Environmental Plan 2015 (Amendment No 21). There is no savings provision within the amending instrument.
The Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015) now applies to the site, and the parties agree that the general savings provision cl 1.8A would not be considered to save the application, having regard to the Court of Appeal decision in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 (at [9]-[12]).
Similarly, the Ku-ring-gai Local Centres Development Control Plan 2012, which was also relied upon by the parties, was also repealed and the Ku-ring-gai Development Control Plan 2020 (KDCP 2020) effective as at 28 June 2021 applies and has no savings provision.
In response to these changes, which were not foreshadowed at the hearing, on 29 July 2021 the parties provided a table comparing the clauses relevant to the appeal in the repealed instrument to the KLEP 2015, and a further table comparing the relevant controls in the repealed development control plan to the KDCP 2020. The parties agree that there are no substantive changes that require any new evidence or any legal submissions in relation to the same. Mr Blake has provided an amended written request concerning the breach of the height development standard, dated 28 July 2021, which makes reference to the KLEP 2015 and a minor amendment in the relevant objective, and the Council consents to leave being granted for him to rely on the amended written request.
The Council's position on the ecological impact
The primary submission of the Council is that the proposed development does not avoid the impact on the BGHF as it is not sited to avoid that impact, and that Mr Blake has not demonstrated that an alternative siting or land use could not be pursued. The Council submits that the reasons advanced by Mr Blake are insufficient to justify the siting of the built form in its proposed location.
The Council submits that critically endangered ecological communities require that every effort be taken to avoid any adverse impacts on them (relying on the decisions of the Court in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited (2013) 194 LGERA 347; [2013] NSWLEC 48 at [147]-[153] and Ingham Planning Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1222 at [139]-[168]).
As such, the Council says that Mr Blake should pursue an alternate scheme consistent with Massing Option 5 in the BDAR, where seven dwellings can be constructed at the front of the property and all trees are retained. The Council says that the reasons put forward in the BDAR for not pursuing this option are insufficient. Those reasons include that the site would only achieve 51% of the permissible FSR, the zone objectives would not be achieved, and such a proposal would not incentivise redevelopment of the site. In response, the Council submits that there is no entitlement to the permissible FSR, that Mr Blake has not considered other permissible uses in the zone that meet the zone objectives and avoid the impact on the BGHF, and that there is insufficient evidence to demonstrate that the proposed configuration is the only economically viable approach to developing the site. The Council further submits that the Court ought not to accept Mr Blake's reliance on the Ku-ring-gai Council Housing Strategy (the Housing Strategy) to justify the yield of the proposed development and the consequential impacts on the BGHF that could be avoided with a smaller yield.
In support of its position, the Council refers to one of the objectives of the FSR control, which is to "enable development with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship". The Council submits that this objective is required to be achieved, notwithstanding that the FSR development standard is met. The Council says that the built form and density of the proposed development is not compatible with the environmental constraints that arise by the presence of the BGHF on the site. The Council relies on the decision in Barrak v City of Parramatta Council [2018] NSWLEC 67 to support its submission that the objectives of the cl 4.4 concerning FSR are required to be separately satisfied notwithstanding that the FSR development standard is met.
The Council further submits that the proposed development will cause a "serious and irreversible impact" on diversity values because, on the evidence before the Court, each of the matters in cl 6.7(2)(a), (b), (c) and (d) are met. In particular, the Council submits that the VMP does not represent BGHF as it is confined to the perimeter of the site and there are no 30m high canopy trees proposed. The Council points out that no credits exist for BGHF, and submits that it is unknown when the credits will take practical effect. The Council also relies on the published 'Guidance to assist a decision-maker to determine a serious and irreversible impact' (Office of the Environment and Heritage, 2017), which identifies BGHF as being a species of ecological community in a rapid rate of decline.
The Council submits that, because the proposed development does not minimise disturbance and adverse impacts by the inclusion of dwellings 8-12 and the resulting removal of two trees, the proposed development should be refused because it does not satisfy the requisite provisions of cl 6.3 of the KLEP 2015. Specifically, the Council submits that the location of the proposed buildings within the mapped area of biodiversity will result in disturbance and adverse impacts on the BGHF community on the site, which is contrary to the requirements of cl 6.3. The Council submits that such a conclusion is consistent with the Court's consistent application of cl 6.3 in the same manner, as seen in Mackenzie Architects International Pty Limited v Ku-ring-gai Council [2015] NSWLEC 1353 (at [24] [61]-[91] and [95]-[101]), XLJ Investment Group Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1607 (at [71]-[82]) and Arkibuilt Pty Ltd v Ku-ring-gai Council [2014] NSWLEC 1161 (at [45]-[49] and [52]-[61]).
For the same reasons, the Council says that the proposed development is contrary to the provisions in Part 18 of the KDCP 2020. The Council submits that the dwellings could have readily been designed to avoid the impact altogether by focusing development at the front of the property, and the failure to do so is contrary to the KDCP 2020. The Council points out that a number of the objectives are focussed on the protection, retention, consolidation and improvement of existing significant vegetation, which means that the removal of the two trees is clearly contrary to those objectives. The Council submits that the proposed plantings will take time to reach maturity, and relies on the evidence of both Dr Robertson and Mr Whyte, who agreed that whilst the ground and mid-storey species will mature quite quickly, there would be a delay in the rough barked apple trees reaching maturity and their full height.