respondent. Leave granted to rely on amended plan; appeal dismissed; Development Application DA0014/2016 for subdivision of Lot 17 DP 236151 refused; exhibits except certain identified exhibits to be returned.
Key principles
Schedule 1 cl 1(2) of the SRLEP must be construed so that the word 'and' in the phrase 'subdivision and the erection of not more than 20 dwelling houses' is conjunctive: an...
A consent authority must be satisfied, on the evidence before it at the time of determination, that the subdivision and the dwellings are designed to meet the specified Schedule...
Whether a Species Impact Statement (SIS) is required is a jurisdictional fact (a question for the consent authority to determine): where the s 5A assessment indicates a likely...
Ameliorative measures relied on in the application to address biodiversity impacts must themselves be sufficiently detailed, practical, enforceable and effective at the time of...
Issues before the court
How should 'and' in Schedule 1 cl 1(2) ('subdivision and the erection of not more than 20 dwelling houses') be construed for the purposes of cl 2.5...
Plain English Summary
The LEC held that the local LEP's Schedule 1 additional permitted use required an application for both subdivision and the erection of up to 20 dwellings; a subdivision-only DA could not rely on that clause. The application also failed because it lacked adequate design information to satisfy tests about minimising visual impact and bushfire risk and because the biodiversity mitigation/offset regime (including the draft VFMP) was not sufficiently certain, practical or enforceable; as a result a Species Impact Statement was required but was not provided. The appeal was dismissed and the DA refused.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,827 words · generated 08/07/2026
What happened
Bottomline Group Pty Ltd lodged a development application for subdivision of Lot 17 DP 236151, East Jindabyne, seeking to enable up to 20 dwellings on the land by relying on an Additional Permitted Use in Schedule 1 to the Snowy River Local Environmental Plan 2013 (SRLEP) (the site is in zone E3 Environmental Management). Council refused the DA. The Applicant appealed to the Land & Environment Court.
What level of design detail and information is required for the consent authority to be 'satisfied' under Schedule 1 cl 1(2)(b) (minimise visual...
Is a Species Impact Statement (SIS) required in respect of the Monaro Tableland Cool Temperate Grassy Woodland (MTCTGW) present on the site?
Does cl 2.5(2) (‘‘This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan'') exclude...
Cited legislation
No linked legislation citations have been extracted yet.
Key site features: about 14 ha, a mosaic of Monaro Tableland Cool Temperate Grassy Woodland (MTCTGW), now a Critically Endangered Ecological Community (CEEC); existing partially built dwelling in one portion of the lot; steep slopes and visual sensitivity relative to Lake Jindabyne and neighbouring residences; presence of tree hollows, woody debris, some weed infestations, and erosion gullies. The proposal was amended during the Court process and the Applicant tendered an amended plan (Addendum A to Exhibit B) and a draft Vegetation and Fauna Management Plan (VFMP) but did not lodge full building plans for the future dwellings.
Acting Commissioner Adam AC dismissed the appeal and refused the DA (orders dated 27 March 2020). The Court's reasoning turns on three principal legal problems for the Applicant: (1) interpretation of the Schedule 1 additional permitted use; (2) insufficiency of design and detail for satisfaction of Schedule 1 conditions (visual impact and bushfire risk); and (3) inadequacy of the biodiversity mitigation/offset package and the related absence of a Species Impact Statement (SIS), a jurisdictional prerequisite where s 5A indicates likely significant effect on a threatened ecological community.
Why the court decided this way
The decision rests on two legal pivots.
Statutory interpretation of Schedule 1 cl 1(2)
Schedule 1 provides that the particular land (Lot 17) may be developed "for the purposes of a subdivision and the erection of not more than 20 dwelling houses ... if the consent authority is satisfied that the subdivision and the dwellings are designed to minimise ... visual impact ... and to minimise the risk to residents from bush fire" (the chapeau and subclauses (a)-(d)).
The Applicant sought to rely on the Schedule while bringing an application that, in substance, was for subdivision only (with building envelopes but not for the erection/approval of the dwellings themselves). The Applicant argued the conjunction 'and' should be read dispersively ('and/or') so a DA for subdivision alone could nonetheless rely on cl 2.5.
The Commissioner applied orthodox statutory construction principles (Project Blue Sky approach) and followed the High Court in Victims Compensation on the ordinary meaning of 'and' being conjunctive unless textual reasons require otherwise. He found the drafting of Schedule 1 (plural 'purposes'; requirement to be 'satisfied' about 'the subdivision and the dwellings are designed') indicated a conjunctive meaning. There was no clear textual or contextual reason to read in a dispersive meaning. The result: the DA, to be validly reliant on cl 2.5/Schedule 1, had to be for both subdivision and erection of the dwellings. A subdivision-only DA could not avail itself of the Schedule.
Assessment obligations and biodiversity (SIS) requirement
Even if one set aside the first problem, the Court required that the consent authority be "satisfied" under Schedule 1 cl 1(2)(b) and (d) (visual impact and bushfire). That satisfaction had to be based on sufficient information about both the subdivision and the dwellings (the 'design' of both). The Commissioner found the application lacked the necessary detail: building height & finishes, how landscape screening would perform over time, when and what species would be planted, precise bushfire design details relevant to future dwelling layouts and evacuation/egress, and the VFMP was incomplete and mostly deferred by condition.
On biodiversity, the site contained MTCTGW, a CEEC at the time of the proceedings. The s 5A (former s 5A/now transitional application under the Savings Regulation) significance test requires assessment of factors such as whether the action is likely to have an adverse effect on the extent of the ecological community or to substantially and adversely modify its composition such that the local occurrence is at risk of extinction. The Commissioner concluded that (a) the direct impacts and fragmentation would be significant given the CEEC status; (b) the ameliorative measures advanced in the application (offset areas within the site, a draft VFMP, and lot-by-lot management) were not sufficiently certain, practical, enforceable or effective to negate the need for a SIS; and (c) the Court could not determine the s 5A inquiry without a SIS. Because a SIS is a jurisdictional fact (its absence vitiates jurisdiction to grant consent where it is required), the DA had to be refused on that ground as well.
Other matters influencing weight included: uncertainty about inclusion of riparian areas in offset calculations (additionality problem), the challenges of securing long-term coordinated implementation where multiple Torrens-title lot owners would each be individually responsible for VFMPs, and the draft status of the bushfire-prone map (which, while of specialist provenance, was not a statutory instrument and carried uncertain weight).
Before and after state of the law
Before: The decision sits comfortably within established lines of LEC jurisprudence that:
LEP drafting must be given its ordinary meaning unless context compels otherwise (Project Blue Sky; Victims Compensation).
Consent authorities must assess the development as proposed and can consider ameliorative measures only if they are part of the application and sufficiently certain (NHVSS, Silverwater).
The s 5A/78A significance test is mandatory and a finding that a SIS is required is a jurisdictional precondition.
This judgment reinforces those positions and applies them in a textured factual setting. It emphasises that spot/additional-use provisions cannot be circumvented by procedural gamesmanship (subdivision-only DAs trying to rely on clauses that expressly require both subdivision and dwelling erection), and it reinforces the rule that biodiversity mitigation must be sufficiently demonstrable at the time of determination.
After: Practitioners should expect:
Strict scrutiny when applications seek to rely on additional permitted uses that expressly tie subdivision to the erection of dwellings: the DA must actually include the dwellings (or provide sufficient detail to allow satisfaction under the clause).
Careful attention to the completeness of any biodiversity management package: draft plans that defer essential detail to post-consent processes will frequently be inadequate to avoid an SIS.
That mitigation packaged as parcelled, post-sale, owner-by-owner regimes will attract careful scrutiny on enforceability and practicality.
Key passages with plain-English translation
Court's central interpretative holding (plain translation):
"I will not read 'and' as 'and/or'; the Schedule requires an application that deals with both subdivision and the actual erection of houses." In plain terms: if the LEP says subdivision and building, do both in the DA or you cannot take advantage of that LEP permission.
'Satisfaction' requirement for Schedule 1 (plain translation):
"You must be able to show enough design detail about both the subdivision and the houses so the decision-maker can be satisfied the design will minimise visual impact and bushfire risk." Put simply: you cannot promise to fix things after the fact with vague conditions; the proposal must show how it will meet the tests.
SIS as jurisdictional fact (plain translation):
"If the development is likely to significantly affect the CEEC, a SIS is required before consent can be granted; whether a SIS is required is a threshold legal question." In short: if significant impacts are likely, you must file the specialist study first.
VFMP/offset critique (plain translation):
"The VFMP was too drafty, deferred too much to later stages, relied on many separate future lot owners to make it work, and included areas that do not demonstrate true additional conservation benefit; therefore it was not a reliable mitigation package." In plain English: mitigation that depends on uncertain future behaviours or incomplete plans will not substitute for a robust application.
What fact patterns trigger this precedent
An applicant invokes a local LEP provision that permits both subdivision and erection of dwellings but submits an application only for subdivision (or with only minimal, non-binding building layout info): this decision warns that courts/consent authorities will insist on an application that actually includes or sufficiently details the dwellings where the instrument links subdivision and dwellings conjunctively.
Sites containing threatened species or ecological communities where the application proposes mitigations by deferred or fragmented measures (e.g., lot-by-lot owner obligations, draft management plans, inclusion of areas of doubtful additionality): expect close s 5A scrutiny and possible requirement for a SIS.
Proposals where visual or scenic protection clauses require satisfaction about minimising visual intrusion but the proposal provides only broad building envelopes and deferred landscaping: the decision requires stronger evidence before a consent authority can be satisfied.
How later courts have treated it
As this decision is itself a 2020 LEC principal judgment, its immediate precedential weight is within the LEC and to practitioners. Its key jurisprudential positions rehearse orthodox authorities (Project Blue Sky, Victims Compensation, Bulga, NHVSS, Parrott). Future courts will look to it when resolving disputes about:
meaning of conjunctive requirements in LEP schedules,
sufficiency of mitigation plans at the time of determination,
the practical enforceability of lot-based conservation regimes,
the threshold for when a SIS is jurisdictionally required.
Practitioners should watch for subsequent LEC or appellate decisions that apply or distinguish this judgment in contexts involving spot permissions, partial applications, and biodiversity mitigation design.
Still-open questions
Degree of permitted detail short of full building DAs: The Commissioner required substantive design detail to satisfy Schedule 1. There is a practical question for practitioners: what is the precise minimum suite of building-related information (beyond building envelopes) that will suffice in different factual contexts? The judgment gives qualitative guidance but not a definitive checklist.
Lot-by-lot conservation models: The Court found a lot-by-lot VFMP regime insufficiently practical/effective in this case. Whether properly structured legal mechanisms (e.g., covenants plus escrowed funds, a single binding management entity, obligatory common fund, or strata/leasehold mechanisms) would satisfy the 'practical/enforceable/effective' standard remains to be tested.
Treatment of draft specialist mapping (bushfire-prone maps): The Court acknowledged some weight may be given to draft RFS maps but treated them as non-statutory. The future status and weight of such draft specialist products in decisions (especially when not publicly exhibited) remains a recurring evidentiary/legal question.
Local occurrence scale for s 5A: The judgment documents expert conflict on what constitutes the 'local occurrence' for the CEEC. The Court preferred a conservative approach but noted difficulties of proof. Future case law may need to elaborate more concrete approaches for delimiting 'local occurrence' in fragmented landscapes.
Practical takeaways: where an LEP ties subdivision to dwelling erection, ensure the DA either seeks both consents or credibly and fully demonstrates how the future dwellings will be designed to meet the LEP's design-based conditions; where threatened biodiversity is present, include a SIS where there is any realistic prospect of significant impact, and ensure mitigation/offset proposals are detailed, legally secure, funded and capable of being implemented in an integrated fashion.
Catchwords
[2018] NSWCA 245
BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237[2013] NSWLEC 48
Cranbrook School v Woollahra Council (2006) 66 NSWLR 379[2006] NSWCA 155
Davis v Gosford City Council (2014) 87 NSWLR 699[2014] NSWCA 343
Hill v Blacktown City Council (2007) 154 LGERA 418[2007] NSWLEC 401
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256[2000] NSWCA 51
Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260
Judgment (26 paragraphs)
[1]
The application
The development application was made pursuant to the provisions of the EP&A Act. The aims of the EP&A Act appear in s 1.3 and are:
1.3 Objects of Act (cf previous s 5)
The objects of this Act are as follows -
(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources,
(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,
(c) to promote the orderly and economic use and development of land,
(d) to promote the delivery and maintenance of affordable housing,
(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,
(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),
(g) to promote good design and amenity of the built environment,
(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,
(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,
(j) to provide increased opportunity for community participation in environmental planning and assessment.
Of particular relevance in this particular instance are objects (a), (b) (e) (f) and (g).
In the context of making a development application, what constitutes 'development'? The term 'development' is defined in s 1.5 of the EP&A Act:
1.5 Meaning of "development" (cf previous s 4)
(1) For the purposes of this Act, development is any of the following -
(a) the use of land,
(b) the subdivision of land,
(c) the erection of a building,
(d) the carrying out of a work,
(e) the demolition of a building or work,
(f) any other act, matter or thing that may be controlled by an environmental planning instrument.
(2) …
(3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1).
The content of 'development' will vary with the circumstances but subdivision of land (s 1.5(a)) is a separate type of development from erection of a building (s 1.5(b)).
In determining the development application, I am required to consider the matters in s 4.15(1)(a) of the EP&A Act:
4.15 Evaluation (cf previous s 79C)
(1) Matters for consideration - general in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application -
(a) the provisions of -
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
(v) (Repealed)
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
The local environmental plan applicable to the site is Snowy River Local Environmental Plan 2013 (SRLEP), while more detailed controls are provided in the Snowy River Development Control Plan 2013 (SRDCP). In determining the development application, both SRLEP and SRDCP are matters which I am required to consider under s 4.15(1) of the EP&A Act, s 4.15(1)(a)(i) in the case of SRLEP, and s 4.15(1)(a)(iii) in the case of SRDCP.
The aims of SRLEP are:
1.2 Aims of Plan
(1) This Plan aims to make local environmental planning provisions for land in that part of Snowy Monaro Regional local government area to which this Plan applies (in this Plan referred to as Snowy River) in accordance with the relevant standard environmental planning instrument under section 3.20 of the Act.
(2) The particular aims of this Plan are as follows -
(a) to protect and enhance, for current and future generations, the ecological integrity, natural resources and environmental significance of Snowy River,
(b) to protect agricultural land resources by -
(i) minimising the fragmentation of rural land, and
(ii) encouraging agricultural land uses on prime agricultural land, and
(iii) providing for a range of agricultural activities in locations and at a scale to avoid conflict with settlements and tourist activities,
(c) to help reduce the negative effects of an ageing and declining rural population by supporting restructuring and succession through flexible subdivision controls,
(d) to plan and provide for settlement where it provides a diverse range of living opportunities and housing choices without compromising the environmental values of Snowy River, including its natural resources such as water, biodiversity and agricultural land,
(e) to locate new urban development adjacent to existing urban areas to increase the accessibility and efficient use of infrastructure, facilities and services, public transport and employment opportunities,
(f) to strengthen and support a year-round economy by encouraging a range of development and land uses, including tourism and agriculture, that respond to lifestyle choices, emerging markets and changes in technology in a socially and environmentally responsible manner,
(g) to provide for small-scale tourism development in areas with access to appropriate tourist activities, services and amenity, such as adjacent to Kosciuszko National Park, Lake Jindabyne and Lake Eucumbene,
(h) to protect, preserve and enhance areas of high scenic landscape value and the open rural landscape, including maintaining separation between towns and villages,
(i) to value, protect and promote the natural, cultural and archaeological heritage of Snowy River by careful management,
(j) to ensure good management of public assets and to promote opportunities for social, cultural and community activities,
(k) to retain, and where possible, extend public access to foreshore areas and link existing open space areas for environmental benefits, health benefits and public enjoyment,
(l) to provide safe and healthy public spaces, attractive neighbourhoods and centres and to ensure development embraces the principles of quality urban design.
The aims which are of particular relevance to the application and to the site are cl 1.2(2)(a), (d), (h) and (i).
The site is zoned E3 Environmental Management. The Land Use Table specifies for each zone the tripartite classification of types of development:
2.3 Zone objectives and Land Use Table
(1) The Land Use Table at the end of this Part specifies for each zone -
(a) the objectives for development, and
(b) development that may be carried out without development consent, and
(c) development that may be carried out only with development consent, and
(d) development that is prohibited.
(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
(3) In the Land Use Table at the end of this Part -
(a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and
(b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.
(4) This clause is subject to the other provisions of this Plan.
Subclause 2.3(2) requires that I have regard to the zone objectives in determining the development application.
Land Use Table Zone E3
Zone E3 Environmental Management
1 Objectives of zone
• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
• To provide for a limited range of development that does not have an adverse effect on those values.
• To provide for a range of compatible rural land uses that do not have an adverse effect on the surrounding land uses or natural values and landscape setting of the area.
• To provide for high quality tourist development that is small scale, low impact and sympathetic to the unique landscape setting and scenic qualities of the area, including the approaches to Kosciuszko National Park.
2 Permitted without consent
Extensive agriculture; Home occupation
3 Permitted with consent
Agriculture; Animal boarding or training establishments; Bed and breakfast accommodation; Building identification signs; Business identification signs; Camping grounds; Cellar door premises; Cemeteries; Community facilities; Dual occupancies; Dwelling houses; Eco-tourist facilities; Emergency services facilities; Environmental facilities; Environmental protection works; Farm buildings, Farm stay accommodation; Flood mitigation works; Home-based child care; Home businesses; Home industries; Information and education facilities; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Recreation facilities (outdoor); Research stations; Roads; Roadside stalls; Rural industries; Rural workers' dwellings; Secondary dwellings; Tank-based aquaculture
4 Prohibited
Industries; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3.
The proposal is not for a rural land use, nor for 'a high quality tourism development' so the last two dot points of the objectives are not applicable.
Clause 2.6(1) permits subdivision with consent.
2.6 Subdivision - consent requirements
(1) Land to which this Plan applies may be subdivided, but only with development consent.
…
The minimum subdivision lot size is governed by cl 4.1:
4.1 Minimum subdivision lot size
(1) The objectives of this clause are as follows -
(a) to provide for suitable lot sizes that are compatible with, and assist to achieve, the zone objectives,
(b) to retain the pattern of subdivision in residential and village zones while allowing infill development of smaller lots in some areas,
(c) to ensure lots have a minimum size that would be sufficient to provide useable areas for building and landscaping,
(d) to ensure that lot sizes and dimensions allow dwellings to be sited to protect natural and cultural features, including heritage items, vegetation, views and rural and landscape settings,
(e) to ensure subdivision does not create unreasonable or uneconomic demands for the provision or extension of services,
(f) to maintain farm sizes to promote continuing agricultural production,
(g) to prevent the fragmentation of rural land,
(h) to ensure that areas of high ecological value and significant land sensitivity are preserved and enhanced for future generations.
(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.
(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.
…
Lot 17 has an area of c14 ha. The minimum size specified by the Lot Size Map is 40 ha. Lot 17 was created with the same area as at present (Exhibit J) as part of the subdivision of Lot 46 DP 231038 on 15 November 1967.
Of particular relevance to the proposal are objectives (d) and (h). As the proposal is not for agriculture but for future residential development, the flexibility offered by cl 4.2A is not available.
4.2A Subdivision of land in Zone E3
(1) The objective of this clause is to provide flexibility in the application of standards for subdivision in Zone E3 Environmental Management to allow landowners a greater chance to achieve the objectives for development in that zone.
(2) Land in Zone E3 Environmental Management may, with development consent, be subdivided for the purpose of agriculture to create a lot of a size that is less than the minimum size shown on the Lot Size Map in relation to that land.
(3) However, such a lot cannot be created if an existing dwelling would, as the result of the subdivision, be situated on the lot.
(4) A dwelling cannot be erected on such a lot.
The Applicant drew attention (written submissions par 15) to cl 4.2D:
4.2D Erection of dwelling houses and dual occupancies on land in certain rural, residential and environment protection zones
(1) The objectives of this clause are as follows -
(a) to minimise unplanned rural residential development,
(b) to enable the replacement of lawfully erected dwelling houses and dual occupancies in certain rural, residential and environment protection zones.
(2) This clause applies to land in the following zones -
(a) Zone RU1 Primary Production,
(b) Zone R5 Large Lot Residential,
(c) Zone E3 Environmental Management.
(3) Development consent must not be granted for the erection of a dwelling house or a dual occupancy on land to which this clause applies unless the land -
(a) is a lot that is at least the minimum lot size shown on the Lot Size Map in relation to that land, or
(b) is a lot created under this Plan (other than under clause 4.2 (3)), or
(c) is a lot created before this Plan commenced and on which the erection of a dwelling house or a dual occupancy was permissible immediately before that commencement, or
(d) is a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced and on which the erection of a dwelling house or a dual occupancy would have been permissible if the plan of subdivision had been registered before that commencement, or
(e) is an existing holding, or
(f) would have been a lot or a holding referred to in paragraph (a), (b), (c), (d) or (e) had it not been affected by -
(i) a minor realignment of its boundaries that did not create an additional lot, or
(ii) a subdivision creating or widening a public road or public reserve or for another public purpose, or
(iii) a consolidation with an adjoining public road or public reserve or for another public purpose.
Note. A dwelling cannot be erected on a lot created under clause 9 of State Environmental Planning Policy (Rural Lands) 2008 or clause 4.2.
(4) Development consent must not be granted under subclause (3) unless -
(a) no dwelling house or dual occupancy has been erected on the land, and
(b) if a development application has been made for development for the purpose of a dwelling house or a dual occupancy on the land - the application has been refused or it was withdrawn before it was determined, and
(c) if development consent has been granted in relation to such an application - the consent has been surrendered or it has lapsed.
…
The proposal does not satisfy either of the objectives in subcl 4.2D(1), not being for rural residential development or replacement of existing structures, but if this were not considered, the lots would be created under the operation of cl 2.5 and would be lots 'created under this Plan' (cl 4.2D(3)(b)).
Clause 4.6 also provides, in some circumstances, flexibility in the application of development standards.
4.6 Exceptions to development standards
(1) The objectives of this clause are as follows -
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
…
Where cl 4.6 is applicable, an applicant may make a case seeking to justify contravention of a development standard (cl 4.6(2)) and the consent authority is satisfied (cl 4.6(3) that the applicant has made a written request addressing the matters in cl 4.6(3) and the proposed development would be in the public interest for the reasons given in cl 4.6(4)(a)(ii). The role of the consent authority in determining a cl 4.6 request has been clarified by the judgments in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118, and Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245.
However, the cl 4.6 variation request does not come into play in the present circumstances, as any option to make variation requests is overridden by cl 4.6(6):
Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if -
(a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or
(b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.
The clause applies to the land in question as it is zoned E3, and all the proposed lots are less than 40 ha.
Although a cl 4.6 variation request cannot be made, there is an alternative pathway which might make a proposal permissible. Clause 2.5 provides for Additional permitted uses:
2.5 Additional permitted uses for particular land
(1) Development on particular land that is described or referred to in Schedule 1 may be carried out -
(a) with development consent, or
(b) if the Schedule so provides - without development consent,
in accordance with the conditions (if any) specified in that Schedule in relation to that development.
(2) This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan.
Schedule 1 Additional permitted uses
1 Use of certain land at Rushes Bay Avenue and Old Kosciuszko Road, East Jindabyne
(1) This clause applies to land at Rushes Bay Avenue and Old Kosciuszko Road, East Jindabyne, being Lot 17, DP 236151.
(2) Development for the purposes of a subdivision and the erection of not more than 20 dwelling houses on the land is permitted with development consent, if the consent authority is satisfied that the subdivision and the dwellings are designed -
(a) to minimise the impact of the development on Aboriginal archaeological heritage, and
(b) to minimise the visual impact of the development as viewed from nearby residences and Lake Jindabyne, and
(c) to minimise stormwater run-off, and
(d) to minimise the risk to residents from bush fire.
2 Use of certain land at The Station, Jindabyne
(1) This clause applies to land in Zone B1 Neighbourhood Centre at The Station, Jindabyne, being Lot 1, DP 864986.
(2) Development for the purposes of an entertainment facility and a pub is permitted with development consent.
3 Use of certain land on the foreshore of Lake Jindabyne
(1) This clause applies to land on the foreshore of Lake Jindabyne, being Lots 4 and 6, DP 239537, Lots 16 and 17, DP 242010, Lots 2 and 3, DP 529023, Lot 6, DP 882988, Lot 1, DP 172139 and Lot 161, DP 756686.
(2) Development for the purposes of markets, recreation areas and recreation facilities (outdoor) is permitted with development consent.
Clause 1 in Schedule 1 applies to Lot 17, which is the site the subject of these proceedings. Note that in Schedule 1, the location of the site is defined by Rushes Bay Avenue and Old Kosciuszko Road, and not Old Jindabyne Road, which is the name apparently correctly used for the road concerned.
Clause 2.5 and Schedule 1 create, in effect, a de facto spot rezoning of particular land. Schedule 1 cl 1 specifies conditions to be met for a development application for Lot 17 in order for the Applicant to take advantage of cl 2.5. The minimum lot size provision for the E3 zone is overridden, but the land is not transferred to another zone, so that the Lot Size Map does not provide a new minimum size for subdivision in Lot 17 after the operation of cl 2.5.
The Applicant relies on cl 2.5 to confer permissibility on the development proposed, thus surmounting the first hurdle in the assessment process.
The parties made extensive oral and written submissions on how cl 2.5 should be construed and applied; submissions supported by numerous references to case law. I am grateful to both parties for the helpful and clear submissions. I have carefully read all the cases suggested, but in what follows I have cited only a few key cases.
[2]
How is the Additional Permitted Uses clause and Schedule 1 to be construed and applied?
The subject land is 'particular land that is described or referred to in Schedule 1' and development may be carried out 'with development consent' (cl 2.5(1)(a)) in accordance with the conditions specified in Schedule 1 cl 1(2)(a)-(d). However, there was disagreement between the parties, both as to the nature of the development proposed and the conditions that would apply. The interpretation of cl 2.5(2) was also not agreed between the parties.
Schedule 1 cl 1(2) provides that:
(2) Development for the purposes of a subdivision and the erection of not more than 20 dwelling houses on the land is permitted with development consent, if the consent authority is satisfied that the subdivision and the dwellings are designed -
(a) to minimise the impact of the development on Aboriginal archaeological heritage, and
(b) to minimise the visual impact of the development as viewed from nearby residences and Lake Jindabyne, and
(c) to minimise stormwater run-off, and
(d) to minimise the risk to residents from bush fire.
In order to grant consent, the consent authority (in the present circumstances, the Court) must be satisfied that the various conditions (cl 1 (2)(a)-(d)) are met.
Schedule 1 cl 1(2) provides, inter alia, for the erection of not more than 20 dwelling houses. The application, as amended, provides for 19 new dwelling houses in addition to the existing dwelling house.
The difference in position between the parties is over whether 'development for the purposes of a subdivision and the erection…' requires that the development application include not only details of the subdivision but also plans of the dwelling houses to be erected. The Respondent argues that 'and' in 'subdivision and erection' takes its ordinary conjunctive meaning, so that the application has to be for both the subdivision and the erection of dwelling houses. The Applicant argues that in the circumstances 'and' takes on dispersive meaning so as to be interpreted as 'and/or' - while full details of the subdivision are required, this is not so for the erection of dwellings.
The statutory interpretation of environmental planning instruments has long been a concern for this Court. Instruments must be construed in the context of the instrument as a whole, with the construction that is consistent with the language and purpose of the provision to be preferred (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky)):
Conflicting statutory provisions should be reconciled so far as is possible
69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute [45]. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" [46]. In Commissioner for Railways (NSW) v Agalianos [47], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed [48].
…
78 However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction [56] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning …
[3]
The competing positions
The Applicant accepts that the normal (ordinary) meaning of 'and' is conjunctive but cites a number of cases where 'and' is required to be read as 'or'. Although in Victims Compensation, the High Court had concluded that in that case 'and' had to be read as a conjunctive as 'there was no convincing textual reason from the rest of the Act for departing from the ordinary meaning' (at [14]), the Applicant argues 'departure from the ordinary meaning' would have been open if there have been a textual reason (applying the principles of statutory interpretation) to do so' (submissions at par 9).
The Applicant argues that there is 'nothing in clause 2.5 that suggests all development identified in Schedule 1 in relation to particular land must be carried out (or that approval must be sought for it) at the same time' (submissions at par 20). That is, that while Schedule 1 cl 1(2) allows for subdivision and erection of dwellings, any development application could be made just for subdivision, and application for erection of dwellings could occur at some future time. The interpretation of 'and' in 'subdivision and erection' is thus appropriately 'and/or'.
The Applicant finds support for an 'and/or' interpretation in the other two clauses in Schedule 1:
2 Use of certain land at The Station, Jindabyne
(1) This clause applies to land in Zone B1 Neighbourhood Centre at The Station, Jindabyne, being Lot 1, DP 864986.
(2) Development for the purposes of an entertainment facility and a pub is permitted with development consent.
3 Use of certain land on the foreshore of Lake Jindabyne
(1) This clause applies to land on the foreshore of Lake Jindabyne, being Lots 4 and 6, DP 239537, Lots 16 and 17, DP 242010, Lots 2 and 3, DP 529023, Lot 6, DP 882988, Lot 1, DP 172139 and Lot 161, DP 756686.
(2) Development for the purposes of markets, recreation areas and recreation facilities (outdoor) is permitted with development consent.
Pub and entertainment facility are defined in the Dictionary to SRLEP. The definition of 'pub' applies whether or not there are also other uses including provision of entertainment:
pub means licensed premises under the Liquor Act 2007 the principal purpose of which is the retail sale of liquor for consumption on the premises, whether or not the premises include hotel or motel accommodation and whether or not food is sold or entertainment is provided on the premises.
[4]
What is required in a subdivision application?
There is no requirement in the EP&A Act for an application for subdivision to contain the application for subsequent erection of structures. Nevertheless, subdivision is often the essential prerequisite to construction of structures and it has long been accepted that consent authorities may properly consider the future use of a site of subdivision. Walsh JA in Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 209 at 224 said:
I have already said it would be quite wrong to require the council or the board to deal with the subdivision application as if the land were and would always remain vacant land
and cited earlier cases to support this view. (Walsh JA was in the minority in the verdict but all three judges were in agreement on this point).
A similar sentiment was expressed by Mahoney P in Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63:
The erection of building structures and the use of electronic equipment and the like is something which is apt to occur if land is subdivided for residential and similar use. Such things are or may be incidents of that use. It is relevant to consider the possible effect of them at the earlier rather than the later stage.
In Parrott v Kiama [2004] NSWLEC 77, Roseth SC advanced a planning principle in the following terms:
17 When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them.
18 In this case the proposed battleaxe allotment is not small, though it is much smaller than its neighbours. It is environmentally sensitive because of its extreme steepness. It is in a location where the adjoining allotments all have rear yards and thus it breaks the established building line. Any future building on it will be closer to the Stafford Street properties than other houses are to their southern neighbours. The likelihood of adverse impact is high. This is not to say that an acceptable dwelling cannot be designed on the allotment, only that it would require a higher than usual level of design skill. The design of the future house (at least the outline design) is not a matter that is appropriately left till later.
[5]
Clause 2.5(2)
Although considerable attention was given by both parties in oral and written submissions to the interpretation of 'and' in Schedule 1 cl 1(2) and to cl 2.5(2), relatively little was said about Schedule 1 cl 1(2)(b) and (d), even though the consent authority has to be satisfied in relation to cl 1(2)(b) and (d) before consent could be granted. Before the question of satisfaction can be addressed, both cl 1(2)(b) and (d) and cl 2.5(2)) need to be interpreted.
Before examining the requirements of Schedule 1 in more detail, it is appropriate to address cl 2.5(2):
(2) This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan...
and, in particular the second part of the subclause or 'other provision of this Plan'. 'This Plan' is the SRLEP, so that cl 2.5(2) does not alter the application of any provisions in other legislation (such as s 4.15 in the EP&A Act).
There does not appear to have been many cases involving cl 2.5 of LEPs: the case law apparently being limited to North Sydney Leagues Club Ltd v North Sydney Council [2017] NSWLEC 1002 (North Sydney Leagues Club) and the subsequent appeal in North Sydney Council v North Sydney Leagues Club Ltd [2017] NSWLEC 69 (North Sydney Council).
In North Sydney Leagues Club, an important matter was the interpretation of cl 2.5(2) in the North Sydney Local Environmental Plan 2013 (NSLEP), which has the same wording as cl 2.5(2) in SRLEP. Commissioner Brown reached the conclusion:
69 I agree with the submissions of Mr McEwen on this matter. The Court is bound by the words in cl 2.5 and the words in cl 2.5(2) that this "clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan" are clear and unambiguous. The Court is not obliged to have regard to the objectives of the RE1 zone when determining the development application or any other matter in cl 6.7 of LEP 2013; being a "provision of this Plan".
(Mr McEwen SC was Counsel for the Leagues Club in the matter).
Ground 1 in the appeal by Council against the decision in favour of the Leagues Club was explained by Moore J in North Sydney Council in the following terms:
19 The Council's position is that, although cl 2.5 of the LEP is facultative and beneficial, a proper reading of subcl 2.5(2) does not act to oust consideration of matters contended by the Council as arising from subcll 6.7(2) and (3) of the LEP being required to be considered as significant elements in the assessment of the Club's proposed development.
[6]
Schedule 1
The chapeau to Schedule 1 cl 1(2) refers to the 'erection of not more than 20 dwelling houses' on the land. The application is for 20 houses but if the Applicant had so wished he could have applied for fewer than this. Equally, even with an application for 20 dwelling houses, it would be within the discretion of the consent authority to grant approval for fewer than 20 dwelling houses, if, after consideration of the potential impacts, the consent authority concluded that the maximum number of dwellings in the form proposed would have unacceptable environmental impacts and thus could not be supported.
'Development for the purposes' - purposes is in the plural. The chapeau to cl 1(2) is not written as 'for the purpose of a subdivision or the erection'. The form of words chosen by the draftsperson shows an intent for 'and' to be conjunctive so that the development application must be for both subdivision and the construction of dwelling(s).
The consent authority, in this instance, the Court, must be satisfied that 'the subdivision and the dwellings are designed'. Again, the language used suggests that the satisfaction has to be both for the subdivision and the building(s) to be erected. It would not be possible for me to be satisfied about both the subdivision and the dwellings in the absence of appropriate information about both components.
Satisfaction is in relation to design. It would seem to me that design requires more than just a bare footprint of the subdivision in terms of location of roads and lots and building envelopes, but requires a level of detail about the proposed features.
I am to be satisfied that the development is to be designed to:
(b) to minimise the visual impact of the development as viewed from nearby residences and Lake Jindabyne,
There are several decisions that need to be made before the question of whether I was satisfied can be approached:
1. how is minimise to be interpreted;
2. what is visual impact; and
3. where is the view taken from and what qualifies as a nearby residence.
'Minimise' is not defined in SRLEP, and so must take its ordinary dictionary meaning. The relevant definitions from the Macquarie and Oxford English Dictionary (OED) are:
1. Macquarie:
- to reduce to the smallest possible amount or degree
1. OED
- to reduce (esp, something unwanted or unpleasant) to the smallest possible amount extent or degree
(There are other meanings given, particularly in the OED, but these apply in different contexts).
[7]
Bushfire risk
Schedule 1 cl 1(2)(d) is the only occurrence in SRLEP where the satisfaction of the consent authority in reference to bushfire is required. The risk is specified as being to residents, not to property, and is to be minimised, not reduced to zero. There is no specification of an acceptable level of risk to residents; the risk merely has to be minimised. The focus of the subclause is residents but for residents to be at risk, there would need to be residences (or in the terminology of the application, dwelling houses). The planning process looks to the future - the risk has to be assessed on the basis of what the development application anticipates the development would be at the time the subdivision and residences are complete but before occupation. The application is for subdivision but not also for individual buildings. The layout of the subdivision enables issues associated with access and egress from the site in the event of a fire emergency to be assessed but, in the absence of applications for the erection of specific buildings, is there sufficient information provided about future residences for me to reach the satisfaction required by Schedule 1 cl 1(2)(d)?
Being restricted to the outline on the ground there are no internal layouts depicted within the building envelopes. As the application stands such detail would be provided subsequently at individual DA stage depending on the requirements of the prospective or actual owner of a particular lot.
Information about such matters as the position of external doors, the layout of hallways and stairs, or provision of external sprinkler systems could affect the efficiency of emergency evacuation. It might be that the provision of such information could be included in the conditions of consent, but that is not provided for in the current draft conditions.
[8]
Consideration of cl 2.5 and Schedule 1 issues
Clause 2.5(1) and Schedule 1 cl 1(1) and (2) have the effect of permitting an application to be made for subdivision of Lot 17 regardless of any other provisions to the contrary in the LEP.
The first, and fundamental, question to be asked is whether both occurrences of 'and' in the chapeau to Schedule 1 cl 1(2) are conjunctive or whether a dispersive interpretation is possible.
Notwithstanding the carefully constructed argument advanced on behalf of the Applicant by Mr Stafford, I am not persuaded that I should depart from the unanimous decision of the High Court in Victims Compensation that 'and' should take its usual conjunctive meaning. I can find no textual indications that anything other than a conjunctive meaning is required and the examples of circumstances where interpretation of 'and' as including 'or' given in Vanmeld do not arise. I accept the Respondent's position that, to the contrary, there is indication in SRLEP that if the draftsperson wished to make a separation between subdivision and erection of a dwelling, as at cl 5.16(3), that was made clear. I am further strengthened in my view by Schedule 1 cl 1(2)(b) and (d), where in order to achieve the necessary satisfaction I would require to have detailed information on both the subdivision and the dwelling houses.
If I be wrong in this interpretation, I would further find that I would be unable to be satisfied in regard to Schedule 1 cl 1(2)(b) given the absence of evidence of an appropriate visual impact analysis having been conducted.
I have not reached a concluded position regarding subcl 1(2)(d) where there is the possibility that appropriate conditions might provide reassurance that satisfaction could be obtained.
Accordingly, I find that the application is not, as is required, a development application for the purpose of a subdivision and the erection of not more than 20 dwelling houses and therefore the appeal must be dismissed, and the development application be determined by refusal.
However, Haydon J's observation in Victims Compensation at [10] "It is, of course, common for seemingly small points of construction to generate sharp and evenly held differences of opinion in this manner" is pertinent. If I am wrong in my conclusion above, I will discuss a number of other matters where the parties held differing views, which include whether a Species Impact Statement (SIS) is required (a jurisdictional fact) as well as matters where I would be required to make an assessment of the merits under s 4.15 of the EP&A Act.
[9]
The importance of zoning
Although not the subject of a particular contention, the Applicant in submissions laid stress on the importance of giving the necessary weight to the zoning of the site and drew attention to McClellan CJ's judgment in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 (BGP) at [115]-[119]:
115 The context in which the issues in this case must be resolved includes the history of the use of the land and the contribution which it now makes to the existing natural environment. Although zoned industrial, that zoning was imposed at a time when the community's understanding of the significance of some elements of the natural environment was not as mature as it now is. Consideration of matters of inter-generational equity and the conservation of both biological diversity and the ecological integrity of land were not such significant elements of environmental decision-making as they are today.
116 Notwithstanding the fact that the ecological integrity of the site may be threatened if the major road reservation were utilised for its purpose, I am satisfied that this is not a significant matter in this case. The reservation was also imposed at a time when the ecological significance of the area was unlikely to have been given any, or at least any mature, consideration. It would be inappropriate to make a decision in the present case upon the assumption that construction of the proposed road is inevitable.
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.
119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.
[10]
Is the CEEC listing a matter to be taken into account?
In Silverwater Estates Pty Ltd v Auburn Council [2001] NSWLEC 60 (Silverwater), an issue arose following the final determination for listing of the plant Wilsonia backhousei as a vulnerable species; Wilsonia occurred on the site The development application in Silverwater had been determined by Council by the granting of approval on 10 July 2000 (the appeal was over conditions). The final determination to list Wilsonia was made on 15 September 2000. The hearing commenced on 5 October 2000. The applicant in the matter had carried out investigations prior to the final determination and proposed various measures to protect Wilsonia.
Talbot J concluded:
40 There was no legal requirement for an SIS to take account of any likely significant affect on the Wilsonia as a threatened species at the date the development application was lodged with the council or at any time prior to its determination by the granting of consent.
41 ….Nevertheless, it would be appropriate for there to be a condition which requires stormwater drainage to be designed and constructed so that it does not impinge on the Wilsonia in any way as suggested by the applicant. If such a condition is agreed to by the applicant then the prospect of impact on the Wilsonia in the circumstances will not warrant refusal of the application.
42 The existing development consent is not open to challenge solely as a consequence of the subsequent declaration of the Wilsonia as a vulnerable species.
43 In any event, the Court has the benefit of several eight part tests conducted by Mr Richardson to take account of the changes to the drainage layout plans. He concludes that the proposed development will not have a significant impact on Wilsonia Backhousei if certain specified mitigation measures are applied. A species impact statement is not recommended by Mr Richardson. Although his conclusions have been challenged by the second respondent's experts he was not required for cross-examination.
In the present case, the presence of an endangered ecological community on the site was recognised prior to the DA being made. After the DA had been refused and the appeal commenced, the status of the community present on the site had been raised to critically endangered.
Mr Stafford for the Applicant submitted:
"I would suggest that the change from an endangered ecological community to a critically endangered ecological community while important, and while it certainly sounds in the significance of the considerations you must take into account, I would submit it doesn't rise as high as what the chief judge was contemplating for it changing contemporary standards. In my submission you wouldn't conclude that it would be difficult to develop this site at all in an environmentally acceptable manner as a result of. I don't think commercial viability comes into this at the moment because there is no evidence on that anyway, but I don't think it could be concluded that it would be difficult to develop the site in an environmentally acceptable manner at all as a result of that change. I would certainly say that the measures that are proposed to protect the site going forward are measures that would only be achieved through the prism of undertaking the development that is currently proposed, at least in terms of the application that is before the Court. The Court certainly should be giving some weight in that way to the gains that will be achieved in my submission as a result of the proposal."
(Tcpt, 13 December 2019, pp 65(36)-66(1))
[11]
Bushfire
During the course of the proceedings, the Respondent raised bushfire as an issue, not having done so previously in the filed contentions. The Respondent did not seek leave to amend the contentions. Mr Stafford strongly objected to this, arguing disadvantage through not having had prior opportunity to prepare a response.
The Respondent claimed that bushfire issues were included in a number of contentions, but, in my view, the references were somewhat tangential and did not articulate a line of reasoning which clearly identified core concerns. However, aspects of bushfire were clearly of concern to some residents, and the concerns held had been consistently identified throughout the prolonged passage of the development application since it was first submitted. In response to discussions with Council and OEH, Dr Wotherspoon had prepared a bushfire report pursuant to s 100B of the Rural Fires Act 1997 which was included in Exhibit A at Tab 12. Dr Wotherspoon and Dr Robertson were questioned on bushfire matters during concurrent evidence. It was clear, despite the protestations to the contrary, the fire issues had been given attention by the Applicant.
The Respondent tendered Exhibit 6 which included a new map of bushfire prone land which identified the site as bushfire prone, and a letter from Council to the Commissioner of the Rural Fire Service acknowledging receipt of the map and conveying a resolution of Council that the new map be formally adopted by RFS. Mr Stafford suggested that the map was, in some way, a product of Council, but it is clear that it was prepared by RFS, albeit with some input from Council staff.
It was common ground that the site was not currently regarded as being bushfire prone land. The Applicant relied (submissions at par 89) on Sofi v Wollondilly Shire Council (1975) 2 NSWLR 614 (a case which was cited and applied in Hill v Blacktown City Council (2007) 154 LGERA 418; [2007] NSWLEC 401) to support the proposition that the Court is required to apply the law in force at the time of determination, and that it cannot be assumed that the law will change until it is actually changed (submissions at par 91 (Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 at 531F).
However, the draft map is not a law, nor is it a planning instrument or a draft planning instrument such as to generate a requirement to consider, and where appropriate, to give it weight, as would be required under s 4.15(1)(a)(ii) of the EP&A Act. Neither is it a policy, although it might inform policy.
[12]
Ecological issues
Two major issues arise - how are impacts on biodiversity addressed in the proposal, and whether a SIS is required in relation to MTCTGW. Resolution of both issues will be determined by whether or not the ameliorative measures proposed are adequate.
[13]
Managing the impacts of the proposal on biodiversity
The proposal has the potential to impose impacts on the biodiversity present on the site. Preston CJ provided an overview of strategies to manage impacts on biodiversity in Bulga Milbrodale Progress Association Inc. v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48 (Bulga) at [147]-[153]:
The strategies to manage the Project's impacts on biological diversity
147 The strategies for managing the adverse impacts of a project on biological diversity are, in order of priority of action, avoidance, mitigation and offsets. Avoidance and mitigation measures should be the primary strategies for managing the potential adverse impacts of a project. Avoidance and mitigation measures directly reduce the scale and intensity of the potential impacts of a project. Offsets are then used to address the impacts that remain after avoidance and mitigation measures have been put in place (see "Principles for the Use of Biodiversity Offsets in NSW", Office of Environment and Heritage (TB vol 7, p 4117)).
148 The first strategy is to endeavour to avoid the potential impacts of a project. Avoidance of impacts may be achieved through planning and assessment of the project including suitable site selection and project design. An example would be modifying the project to avoid an area of biodiversity value, such as an endangered ecological community or habitats of threatened species or populations.
149 If after implementing all reasonable avoidance measures, there are remaining impacts, the next strategy is to undertake mitigation of the remaining impacts. Examples are implementing measures to prevent or reduce offsite impacts on areas of biodiversity value, such as edge effects, weed invasion, altered fire frequency or altered hydrological regimes.
150 If after all reasonable avoidance and mitigation measures have been implemented, there are still residual impacts, offsets can then be considered. Offsets do not reduce the likely impacts of a project, but rather compensate for the residual impacts.
151 An offsets package can involve direct offsets or other compensatory measures. Direct offsets are actions which provide a measurable conservation gain for the affected components of biological diversity, such as endangered species, populations or ecological communities. Conservation gain is the benefit that a direct offset delivers to the affected component, which maintains or increases its viability or reduces any threats of damage, destruction or extinction.
152 Other compensatory measures are actions that do not directly offset the impacts on the components of biological diversity but are expected to lead to benefits for the affected components. An example would be undertaking or funding the undertaking of research programs relating to the affected components of biological diversity.
153 In the case of the Project, Warkworth has proposed no avoidance measures and little mitigation measures to reduce the scale and intensity of the significant impacts on biological diversity particularly on the affected EEC. As a consequence, the significant impacts identified in the preceding section remain essentially unabated. Rather, Warkworth has proposed an offsets package in order to compensate for the significant residual impacts of the Project.
He went on to analyse how these strategies have been applied (or not) to the Warkworth Extension Project (a major Hunter Valley coal mine project) in Bulga at [154]-[255].
[14]
Avoid and minimise
The site is small, and if it is to be developed it would be inevitable that areas of the vegetation would be cleared. The majority of vegetation affected would be MTCTGW, a Critically Endangered Ecological Community (CEEC). This would be an adverse impact on the factors to be considered in cl 7.2(c). Is it a 'significant adverse impact'? Given that the community which would be impacted is a CEEC, and that there would be fragmentation of the remaining areas of the CEEC on site, the adverse impact is significant - I place greater weight on the critically endangered status than does the Applicant.
Is the development designed, sited and will be managed to minimise the impact? The Applicant argued that the building footprints have been designed and sited such that they were on areas where the vegetation was in poor condition. This was disputed by the Respondent, particularly in relation to proposed Lot 8 and the area of dense Cotoneaster which was observed on the view.
Lot 8 is among the larger of the proposed lots, and it has vegetation in both good and poor condition but the proposed building footprint extends into the good condition area. This was discussed on the view, and we were informed that the position of the proposed building was chosen to protect the privacy of the occupants of the house under construction on Lot 1. This was confirmed in evidence during the hearing.
The Cotoneaster area is not within a lot to be developed, but would be managed under the VFMP.
The Applicant's position was explained as:
"The vegetation mapping has been raised ad nauseum. Dr Wotherspoon gave evidence that the development footprint was chosen based on the most disturbed parts of the site; and that building envelopes and roads were identified to limit development to those parts of the site. Mr Harker pulled out some isolated examples of lots where the council says that the siting of the building envelope for those lots, it is asserted, were not the most disturbed parts of the site, but can I say that there is always going to be a balance between ecological and planning considerations. I don't understand Dr Wotherspoon's evidence to be that only the most disturbed parts of the site were ever chosen.
The suggestion was that the development footprint was chosen based on the most disturbed parts of the site. I'm certainly not suggesting to you that a blind eye was turned to balancing the disturbed parts of the site with meeting planning objectives that were required for the site and in connection with lot 8, if the lot 8 footprint was chosen to balance privacy with the most disturbed parts of the site, by and large the lot 8 building footprint is a very disturbed part of the site. It's category A on that plan that Dr Robertson's categories of how disturbed the parts of the sites were. The fact that a corner of that site intrudes into Dr Robertson's category D, and may intrude because of privacy considerations or the like, planning amenity considerations, doesn't mean this development footprint hasn't been chosen based on the most disturbed parts of the site."
(Tcpt, 20 December 2019, p 40(6-29))
[15]
Additionality
Included within the offset areas proposed is the riparian zone associated with Rushes Creek. Development in this zone would be prohibited. The Respondent argues that the riparian zone is thus not eligible for inclusion within the offsets because there is no additional conservation benefit accruing. The Applicant argues that, to the contrary, there is a benefit in that the VFMP excludes grazing by domestic stock within the riparian zone; grazing would, currently, be permissible. I consider that it is unlikely that grazing by domestic livestock in the riparian zone would be a practical option. The area is small and separated from larger areas of grazing land. The number of domestic grazing animals which could be supported on the land is probably too small for grazing to be a commercially viable proposition.
Dr Wotherspoon on several occasions invoked the spectre of Barry, and employed colourful hyperbole to suggest that Barry's 100,000 goats were a threat the CEEC across the Monaro (for example in Tcpt, 4 December 2019, p 53(42-45)). Grazing is a threat to the long-term survival of the CEEC across its range, and goats can be a serious threat to many ecological communities, but I am unaware of the existence the flock of this magnitude occurring across the Snowy Monaro region, and, if there were, the Applicant would have no control over such a threat outside Lot 17.
Absent evidence of a plausible clear and present danger of domestic livestock grazing in the Rushes Creek riparian zone, I am inclined to accept the Respondent's argument that the riparian zone is sufficiently protected so not as to warrant its inclusion within the offset.
[16]
Is a SIS required?
The parties agreed that when the development application was lodged, s 5A of the EP&A Act applied to assessment of impacts on items included on the schedules of the TSCA. The TSCA has now been repealed and the BCA has commenced. Section 5A has also been repealed but continues to apply to the development application by reason of cl 28(1) of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (Savings Regulation).
The MTCTGW was listed on the schedule of the BCA as a Critically Endangered Ecological Community after the current development application had been lodged, and after it had been refused. However, cl 31 of the Savings Regulation requires that the new listing apply to the development application even though it is to be assessed under the previous regime and not that provided for in the BCA.
The ecology experts agreed that the assessment of significance under s 5A needed to be undertaken to determine if there is likely to be a significant impact on the CEEC.
If the assessment demonstrates that there will be a significant impact on species, a SIS prepared under the provisions of the TSCA is required under s 78(8) of the former version of the EP&A Act.
Whether a SIS is required is a jurisdictional fact, and the Court must decide for itself whether the development application is for a development which is likely, in this case, to significantly affect a CEEC or its habitat (Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48 at [81] (NHVSS)). That a s5A test results in a requirement for production of a SIS does not predetermine the outcome of that SIS; production of a SIS allows for a more detailed investigation, and gives a role to the relevant agency (at the time of this application, the OEH) in setting requirements for the SIS and its subsequent assessment. A SIS will add to the overall assessment process, but could result, depending on the circumstances, in an outcome that the impact would be acceptable. Equally, a determination that a SIS was not required does not mean that an assessment of all relevant ecological impacts is not required (Davis v Gosford City Council (2014) 87 NSWLR 699; [2014] NSWCA 343) under s 4.15(1)(b), (c), (d) and (e) of the EP&A Act, taking into account the objects of the Act in ss 1, 3(a), (b), and (e) and the objects of SRLEP, and cl 7.2 of SRLEP.
[17]
Matters with insufficient discussion
There were a number of details of the proposal which changed during the hearing - that is not an unusual occurrence, but in this instance call into question the assessments which had been made.
Dr Wotherspoon had been at pains to emphasise that the focus of the amelioration measures was to permit and encourage natural regeneration over time, rather than replanting. However this changed to include some landscaping and the planting of a row of well-spaced Acacia melanoxylon (blackwood), a species regarded in the final determination for the CEEC as being characteristic of MTCTGW. Curiously, there was no mention in Dr Wotherspoon's original study, despite the amount of fieldwork conducted, of blackwood. The reason for this was not adequately explained.
In Exhibit O, in relation to both blackwood and any plants included in landscaping, Dr Wotherspoon proposed non-local provenance in order to maintain heterozygosity, a term he mentioned several times (for example Tcpt, 4 December 2019, p 41(26-29)). The importance of genetic heterozygosity is well recognised as is that of provenance. The interaction between the two is currently the subject of considerable debate in the context of implications of climate change. It is a complex topic, but the complexity is not reflected in Dr Wotherspoon's requirements in Exhibit O. In the case of blackwood, where only a few trees are to be planted, the natural distribution of the species is latitudinally extensive, encompassing a range of climatic conditions. What criteria would be employed to determine appropriate provenance - would all the trees be of the same provenance, or would several different sources be utilised?
On the site inspection when observing the erosion gullies on part of the site, Mr Griffiths explains that this would be filled in using material present on the site and that they would be no importation of fill. However, during the hearing and in the conditions, reference is made to the nature of any fill to be imported. It may be relatively minor matter, but the contradiction is such as to raise doubts in my mind about whether the proposal is as well defined as it should be at the stage of consideration.
[18]
Fauna
The proposed VFMP includes fauna, but only to a limited extent in the provision of measures for hollow utilising mammals (microbats and sugar gliders) - these are positive measures although the rationale behind the specific numbers of boxes was not explained.
Various residents in the submissions expressed appreciation of and concern for, other fauna, particularly birds and terrestrial mammals (including macropods, echidnas and wombats).
The numbers of the bird species mentioned by the residents are threatened species.
In the draft VFMP (Exhibit O), Dr Wotherspoon concludes (page 19 section 2.3):
"Local residents have given evidence that various common and threatened species of fauna use their gardens. Those species include kangaroos, wallabies, parrots, gang-gang cockatoo, yellow-tailed black-cockatoo, little eagle, echidna, scarlet robin and barking owl. Those species appear to have adapted to the urban environment of East Jindabyne, so no particular measures are required for their protection."
While the species can be seen in gardens in the general area, the gardens provide only part of the habitat utilised by them. The existence of the currently undeveloped Lot 17 provides open space in the proximity of the gardens.
Dr Wotherspoon does not discuss the cumulative impact of development of Lot 17 on local biodiversity. Even though some of the species are, currently, widespread and reasonably common they are still components of biodiversity and cl 7.2 does not differentiate between threatened and other species.
Species such as wombats and echidnas take part in ecological processes within the community. On the view, Dr Wotherspoon pointed out signs of wombat activity and discussed the ecological importance of the wombat in the community. There is no discussion of possible impacts on the survival and viability of wombats and echidnas on the site if the proposal were to go ahead, and whether specific management provisions might be required.
Dr Wotherspoon's conclusion is based on an assumption ('appear to have adapted to the urban environment') without any supporting evidence. For most of the bird species concerned, the conclusion is credible and there is a substantial literature on birds in urban habitats (not specifically cited by Dr Wotherspoon) which would support it. The larger terrestrial mammals might not so readily accommodate the loss of habitat and their ability to utilise a subdivided Lot 17 may be reduced. The VFMP might appropriately contain management prescriptions for these species, but does not presently do so, but any prescriptions would need to be supported by appropriate analysis. There was no such analysis included in Exhibit F (Dr Wotherspoon's individual report) or in discussion in the Joint Ecologists Report.
[19]
The turning circle
The traffic experts (Mr Volker Georgi for the Respondent and Mr Van Osgood for the Applicant) were in agreement over the required conditions dealing with internal roads and the upgrading of Old Jindabyne Road. They disagreed over whether a turning circle was required, for the benefit of garbage trucks, at the northern boundary of proposed Lot 8.
Old Jindabyne Road continues beyond Lot 8 to provide access to four further properties. The road to these properties is unsealed, and, were development to be approved, would remain unsurfaced. The properties beyond proposed Lot 8 currently benefit from the garbage truck service. It was said that the truck makes a three-point turn to return back along Old Jindabyne Road, although the location where this occurs was not identified.
There was discussion during the concurrent evidence of the traffic experts that the bins from the properties beyond the turning circle would need to be wheeled down to the turning circle for pickup.
The argument in favour of the turning circle is not strong, and the possible disadvantages and inconvenience to the four properties would be high. If I were to have been required to make a determination on this contention, I would have adopted the Applicant's proposed condition under which there would be a sign at the end of the sealed road, advising that the road beyond was unsealed.
[20]
Concerns of residents
Throughout the history of the development application, a number of residents have expressed a variety of concerns about the proposal. The majority of these concerns can be grouped into a small number of categories:
[21]
Access to Rushes Creek Gorge
The site has historically provided an access route to Rushes Creek Gorge, and this was well used. However, the site is private land, and while passage through the site to the Gorge has obviously been tolerated, there is no public right of access. The proposal before the Court improves upon the current position by formalising pedestrian access to the Gorge and also to the foreshore of Lake Jindabyne.
[22]
Traffic issues
Concern was expressed about access along the narrow Old Jindabyne Road and how this would be exacerbated by greater use of the road if approval is granted. I note that the agreed without prejudice conditions of consent provide for the upgrading of Old Jindabyne Road (in conditions 25 and 30). Concern was also expressed regarding Rushes Bay Avenue, but Council did not advance a condition requiring additional work to this road.
Residents pointed out that, except for the lots fronting Old Jindabyne Road, for most of the lots, there would only be access-egress via Rushes Bay Avenue and this would be problematic in the event of a bushfire. However, the Applicant clarified during the hearing that the intention was that there would be access provided from the internal road system through to Old Jindabyne Road, and at the very end of the hearing proffered a condition to lock in this undertaking (Tcpt, 20 December 2019, p 38(14-49)). Once on Old Jindabyne Road, there would be access to Jerrara Road. It was also stated that there would be access to Kosciuszko Road - but this might not be suitable for all vehicles, and, as I understand it, there is not a formalised intersection at what Mr Stafford described as a T-junction to Kosciuszko Road (Tcpt, 20 December 2019, p 6(15-24); Mr Stafford's submissions, p 16 par 84(d)).
[23]
Biodiversity
The wildlife of the site is highly valued and of concern to a number of those who made written submissions and who spoke on site. Residents valued the opportunity to observe wildlife, particularly birds and macropods and expressed concern about the loss of habitat and potential impact on the biodiversity of the site.
Biodiversity concerns occupied a considerable part of the proceedings and are discussed above (starting at [155]).
[24]
Conclusion
The Applicant argued that what was proposed was a substantial improvement on the status quo in that implementation of the VFMP would lead to an improvement in the condition of the remaining CEEC, and obligations to apply the VFMP would be imposed by a s88B instrument.
I recognised that if the current application is refused there is an existing approval which could be reactivated, the completion of that subdivision plan would require development consent for building construction. The site currently has areas where weed infestation occurs and for those weeds which are priority weeds under the Biosecurity Act 2016, there are requirements for the owner to take control measures (Exhibit K). Lot 17 is private property, but at least in the past, environmental damage from use of BMX bikes has occurred, apparently without restriction.
The advantages which might flow from implementation of the VFMP cannot overcome my lack of jurisdiction to grant approval for the proposed development, given that the development application is for subdivision and not for both subdivision and the erection of dwelling houses, and that no SIS has been prepared.
[25]
Orders
The Court orders that:
1. The Applicant is granted leave to rely upon the amended plan in Addendum A to Exhibit B in the form tendered on 20 December 2019.
2. The appeal is dismissed.
3. Development Application DA00014/2016 for the subdivision of Lot 17 DP 236151 is determined by refusal.
4. The exhibits, except for Exhibits 1, A, B and O may be returned.
[26]
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: 27 March 2020
Parties
Applicant/Plaintiff:
Bottomline Group Pty Ltd
Respondent/Defendant:
Snowy Monaro Regional Council
Cases Cited (44)
ney Council v North Sydney Leagues Club Ltd [2017] NSWLEC 69
North Sydney Leagues Club Ltd v North Sydney Council [2017] NSWLEC 1002
Parrott v Kiama Council [2004] NSWLEC 77
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 209
Shoalhaven City Council v Lovell (1996) 136 FLR 58
Signature Properties No. 2 Pty Ltd v Blacktown City Council [2019] NSWLEC 1037
Silverwater Estates Pty Ltd v Auburn Council [2001] NSWLEC 60
Sofi v Wollondilly Shire Council (1975) 2 NSWLR 614
Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472
Universal Property Group Pty Ltd v Penrith City Council [2020] NSWLEC 1040
Vanmeld Pty Ltd v Fairfield City Council (2000) 106 LGERA 454; [2000] NSWCA 51
Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; [2003] HCA 54
Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234
Texts Cited: A Gauli et al., 'Molecular genetic diversity and population structure in Eucalyptus pauciflora subsp. pauciflora (Myrtaceae) on the island of Tasmania' (2014) 62 Australian Journal of Botany 175
Macquarie Dictionary (online)
Oxford English Dictionary (online)
NSW Department of Environment and Climate Change, (2007) Threatened Species Assessment Guidelines
Snowy River Development Control Plan 2013
Category: Principal judgment
Parties: Bottomline Group Pty Ltd (Applicant)
Snowy Monaro Regional Council (Respondent)
Representation: Counsel:
A Stafford (Applicant)
S Puckeridge (Solicitor) (Respondent)
Leave granted to rely on amended plan; appeal dismissed; Development Application DA0014/2016 for subdivision of Lot 17 DP 236151 refused; exhibits except certain identified exhibits to be returned.
In Cranbrook School v Woollahra Council (2006) 66 NSWLR 379; [2006] NSWCA 155 (Cranbrook School), the Court of Appeal held (per McColl JA) at [36] that Local Environmental Plans, being a category of environmental planning instruments, are statutory instruments and should be interpreted in accordance with the general principles of statutory interpretation, and that the approach advocated at [69] and [78] in Project Blue Sky should be preferred.
Stein J in Nerasko Pty Ltd v Coffs Harbour City Council (1990) 70 LGRA 42 at 47 suggested that:
In my opinion in construing the relevant words it has to be kept well in mind that local environmental plans are usually the creation of planners and not lawyers. Words are sometimes used with obvious intent but not always with legal precision.
In Cranbrook School, it was observed at [2] that Woollahra Local Environmental Plan 1995 'is far from a model of drafting clarity' (per Beazley JA). A similar criticism could be made of SRLEP, but regardless of whether a planning instrument is drafted by a planner or lawyer, if an instrument is viewed under a strong light with the keen eye of a reader seeking potential ambiguities, then precision may be found wanting. Similar difficulties can also arise in statutes - in Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; [2003] HCA 54 (Victims Compensation), Haydon J observed (at [14]) 'the drafting has not perhaps been uniform or flawless throughout'.
In construing cl 2.5 and Schedule 1, the importance of recognizing context and purpose is acknowledged, but the importance of the meaning of words and phrases must be respected and interpretations which are contrary to the ordinary meaning of the words involved are normally not supportable, unless a 'special' meaning of a particular word is expressly provided for in the Dictionary to SRLEP. The 'ordinary' meaning of words evolves over time, and, for many words, dictionaries give a range of archaic meanings sometimes diametrically opposite to the current 'ordinary' meaning. Fortunately for the task in hand, there is no need to venture into past usage. In construing cl 2.5, context, purpose and the meaning of the words are essential components - choosing between alternative interpretations simply because one favours the convenience of one or other of the parties is inappropriate.
The Applicant argues that there would be no reason to refer to both a pub and entertainment facility unless it were contemplated that these uses could be applied for separately - and in Schedule 1 cl 2(2) 'and' should therefore be read as an 'or'.
The foreshore lots referred to in cl 3(1) are not contiguous. The Applicant argues that the 'and' before the last item in the list is intended to be dispersive and mean 'and/or'. It would clearly not be anticipated that any single development application would contemplate development on all lots identified in the subclause. Similarly, any development application for any one of the lots would not necessarily include more than one of the purposes identified in cl 3(2), so again the 'and' in the list is to be read 'and/or'.
The extension of the Applicant's argument is if 'and' in Schedule 1 cll (2) and (3) logically means 'and/or', then it should be assumed that the draftsperson was consistent in the use of 'and' so therefore 'and' in cl 1 must also be read as 'and/or'.
The Respondent's position is that the interpretation of Schedule 1 cl 1 is clear - development must be for the purposes of both subdivision and the erection of dwellings, and that 'and' takes on its ordinary conjunctive meaning. The Respondent acknowledges that there are instances where a dispersive interpretation is required, but such instances will be rare, referring to Stein JA's observations in Vanmeld Pty Ltd v Fairfield City Council (2000) 106 LGERA 454; [2000] NSWCA 51 (Vanmeld) (at [19]-[24]):
19 In my opinion, the construction urged on the Court by the appellant must involve reading the conjunctive 'and' in the definition of floodway as 'or'. Indeed, Mr Rayment confirmed this in his submission. I do not agree. To read 'or' for 'and' would mean that when Prospect Creek broke its banks, in flood, there would be at least two flow paths for floodwaters. One in the channel itself and one on the adjoining flood-plain, even though they are part of one mass of water. Pursuant to the definition, viewed in the fashion urged on the Court by the appellant, one of these flows would constitute 'the main flow path' and the other would not. Assuming the channel of the creek was the main flow path, then the adjoining inundated areas of the flood plain, flooded from the creek overflowing its banks, would not be in a floodway. This demonstrates the artificiality of such a concept. It cannot have been intended by the drafter of the LEP.
20 The preferable interpretation is arrived at by the application of the ordinary rules of construction. That is, that the definition is cumulative and not in the alternative. This is consistent with the context of the LEP. Floodway means the channel of the river together with those portions adjoining the channel (being part of the flood-plain) which constitute the main flow path of the floodwaters.
21 As a matter of ordinary construction 'and' means 'and' and not 'or'. It is conjunctive and not disjunctive.
22 Only in very narrow circumstances will a Court modify the language of a provision to read 'or' for 'and' or vice versa. The first circumstance is where the legislature has made a mistake and used the incorrect conjunction. This cannot be here concluded. There is no reason to suggest that the drafter of the definition made a mistake in using the conjunction.
23 The second situation is where there is a list of items joined by 'and', and the provision is clear that the list is one of alternatives, see Re Licensing Ordinance (1968) 13 FLR 143 at 147. That is also not the case here. Beyond these circumstances, the Courts will rarely treat 'and' and 'or' as interchangeable.
24 In approaching the LEP definition, the first thing to note is that it uses the word 'means', not 'includes' or 'means and includes'. Use of the word 'means' limits the meaning to that set out in the definition. If the ordinary meaning is different, it is discarded. It makes the definition 'hard and fast' and rigidly defines and limits the meaning to the exclusion of other meanings. The definition is exhaustive. See, eg Gough v Gough [1891] 2 QB 665 and Black v Shaw (1913) 33 NZLR 194.
The Respondent does not find any justification in the text of Schedule 1 cl 1 for reading 'and' as 'and/or' (citing Victims Compensation). The Respondent argues that where the draftsperson of SRLEP wished to refer to subdivision and erection of dwellings as alternatives, he did so explicitly, particularly in cl 5.16(3):
(3) A consent authority must take into account the matters specified in subclause (4) in determining whether to grant development consent to development on land to which this clause applies for either of the following purposes -
(a) subdivision of land proposed to be used for the purposes of a dwelling,
(b) erection of a dwelling.
The term 'either', or some synonym, is not used in Schedule 1 cl 1, which according to the Respondent reflects a deliberate intent by the draftsperson to use 'and' as a conjunctive.
The Respondent agrees with the Applicant that 'and' in Schedule 1 cll 2 and 3 appropriately takes on a dispersive meaning but does not agree that 'and' in cl 1 should also be read as 'and/or' as there are textual indications to the contrary.
Schedule 1 cl 1(2) requires that the consent authority be satisfied that the subdivision and the dwellings are designed so that the matters in cl 1(2)(a) - (d) are properly addressed. The Respondent argues that the specific requirements in cl 1(2) apply to both the subdivision and the erection of dwellings and that therefore the linking 'and' must take its ordinary conjunctive meaning.
Of the specific requirements in cl 1(2), the parties agree that, in relation to subcl (a), there has been a detailed Cultural Assessment Report by New South Wales Archaeology Pty Ltd 16 December 2014 (Exhibit A, Tab 8) and that were the development application to be approved, appropriate mechanisms will be in place to ensure satisfaction of subcl (a). (I interpose here to mention that in cl 1(2)(a), the reference is to Aboriginal archaeological heritage - that is physical evidence in the form of artefacts et cetera. In Exhibit A Tab 8, there is only a brief mention, on pages 146 - 148, to ceremonial places and social geography. Failure to consider more extensively these aspects of Aboriginal heritage was raised in the oral submission of Aboriginal Traditional Owner Alice Williams (Exhibit 2, p 21) who said that Rushes Creek Gorge was, before the creation of Lake Jindabyne, a major route between the tablelands and the Snowy River, and that the site was a significant meeting place and important in women's culture. However, no further evidence on this matter was presented and it was not raised in the contentions.)
The Respondent (in submissions at par 25) raised the issue of potential increased stormwater run-off from hard stands. Nevertheless, the parties are in agreement that any issue relating to the minimisation of stormwater run-off could be addressed through conditions.
The two specific requirements where there are differences between the parties are:
…
(b) to minimise the visual impact of the development as viewed from nearby residences and Lake Jindabyne, and
…
(d) to minimise the risk to residents from bush fire.
In both cases, the Respondent is of the opinion that in order to achieve the requisite satisfaction, it is necessary to consider the development as comprising both subdivision and (used conjunctively) erection of dwellings, and the details of both are required. The Applicant's opinion is that the present application is for subdivision and that separate application for erection of dwellings will occur subsequent to the subdivision.
The circumstances in Parrott v Kiama were different from those in the present case as the matter was a proposal for subdivision to allow a single infill development on a site where the environmental constraint was its steepness. However, the planning principle has been applied in a range of circumstances with different environmental constraints, but where it was desirable for the consent authority to have some prior commitments on the form of any subsequent development before assessing and, if appropriate, approving a subdivision application.
On the Applicant's case, that 'and' in subdivision and erection is to be read as 'and/or', Mr Stafford argues that accepting the Parrott v Kiama principle does not require the specific development application for each building, but appropriate constraints in the circumstances. In this case, 'the application provides constraints on building footprints, identified APZs and identifies the land to be protected by a vegetation management plan. This is an appropriate response to the circumstances' (submissions at par 36). 'If there is any requirement to consider "dwellings" for the purposes of item 1, it ought to be construed to go no further than these principles and the specific terms of conditions (a) to (d) for subdivision insofar as they relate to that development in accordance with cl 2.5. Item 1 does not objectively intend that they be completed designs for each of the future dwellings on the subdivision' (submissions at par 37).
I am unaware of any statistics on how many subdivision applications are lodged with Council with plans for future buildings. However, recent matters that have been before the Court provide a number of examples where plans for future buildings were included in subdivision applications. In part this reflects commercial decisions by developers seeking to provide land and building packages rather than just bare subdivision plots, in others they go beyond the Parrott v Kiama principle in order to provide further information to demonstrate compatibility with the special environmental features of a particular site.
In Signature Properties No. 2 Pty Ltd v Blacktown City Council [2019] NSWLEC 1037, the application was for a staged residential subdivision to create 61 community title lots for housing and five strata lots and the construction of the 61 community title dwellings and the five studio dwellings - the application included the full plans for every building.
Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234 involved an application for construction of a golf course with associated community title residential development. The community title residential properties were to be built on land with a number of environmental constraints. The developer wished to market land and building packages. The application did not include plans for every single lot, but rather there were plans for a limited suite of designs so that purchasers were restricted in their building options.
In Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397 (Statewide), the application was for subdivision and the erection of dwellings. Most recently in Universal Property Group Pty Ltd v Penrith City Council [2020] NSWLEC 1040 (Universal Property Group), the development application was for a five lot subdivision and construction of a dwelling on each of the resulting lots. The lots varied in size as did the nature of the proposed dwellings which varied from three bedroom two storey to eight bedroom two storey and basement car parking. A constraint in both Statewide and Universal Property Group was the presence of a Critically Endangered Ecological Community (Cumberland Plain Woodland).
Subdivision development applications including building plans may not be common but neither are they unusual or impractical.
Moore J considered that subcl 2.5(2) could only exclude from consideration provisions in the plan of a prohibitory nature (at [34]), that is, clauses in the LEP which were prohibitory in that they referred to a numerical development standard.
34 However, looked at in this fashion and taking the case as advanced by Mr McEwen at its highest, the second element of subcl 2.5(2) could only exclude the requirement for the Commissioner to address relevant elements of subcl 6.7(3). Consideration of the relevant elements of subcl 6.7(2) would not be so excluded as this provision could not be regarded as prohibitory in nature. It therefore follows, it seems to me, even on the basis of the case advanced for the Club taken at its highest, the Commissioner was led into error by his stating in [69] that he had adopted Mr McEwen's submission that subcl 2.5(2) excluded, in its entirety, the necessity to address cl 6.7 of the LEP.
Moore J also found that despite the Commissioner's finding at first instance on the interpretation of cl 2.5, he had in fact considered cl 6.7 of NSLEP under the general merit assessment of issues required by s 4.15 of the EP&A Act:
35 However, that is not the end of the matter. As I have earlier noted, Mr McEwen submitted that, despite the Commissioner's disavowal of the applicability of cl 6.7, nonetheless a "fair reading" of the Commissioner's decision demonstrates that under the rubric of the Commissioner's more general merit assessment, he had, in fact, addressed the matters of concern to the Council arising from cl 6.7 and had, relevantly, considered them appropriately (subcl 6.7(2)) or achieved the necessary degree of satisfaction (subcl 6.7(3)) so that these provisions did not act as a barrier to his overall conclusion concerning the Club's development proposal.
'Minimise' does not mean reduced to zero, so use of 'minimise' implies that there will be some visual impact. 'Minimise' is further qualified by 'possible' - Schedule 1 provides no criteria for determining what is to be considered possible and parties might differ in their interpretation on this point - is the financial cost of achieving satisfaction a relevant consideration or is feasibility the focus? The OED definition suggests that the minimisation is to be applied to parts of the development impact that might be regarded as unwanted or unpleasant.
The use of impact also carries connotations of being unwanted or unpleasant. Lake Jindabyne is man-made, and East Jindabyne has developed since the lake was filled. The landscape in which the proposed development will be set is a cultural landscape, not some hypothetical natural landscape. However, certain cultural landscapes, in both Australia and internationally, are as highly valued for aesthetic and heritage reasons as natural landscapes (which are, in any case, rarely devoid of some human influence). Buildings often occur in cultural landscapes, and buildings individually or collectively may, in some circumstances, add to scenic quality.
Lake Jindabyne is a large body of water. Schedule 1 does not specify from where on the lake the visual impact of the development is to be assessed. If it were viewed from close to the western shore, then 'distance lends enchantment to the view', or, at the very least, reduces the impact. Schedule 1 also does not specify whether the impact is as perceived by the naked eye or through binoculars. Nor does it specify a time of day when the impact is to be assessed. If the view from somewhere on the lake is taken in the morning, looking into a rising sun, the visibility and impact of the development could be different from that in the afternoon when the western sun might be reflected. It is true that SRDCP would require non-reflective finishes of suitable colours, and that the planning experts (Ms Ballinger for the Respondent and Mr Fitzsimmons for the Applicant) agreed upon a condition regarding a colour and material schedule (Exhibit L), but it is not made explicit as to whether the non-reflective materials requirement would also apply to windows. The proposed condition is also silent on the placement of solar panels, which are difficult to make non-reflective, but which might be thought to be desirable features on any dwelling houses to be constructed on the site. Schedule 1 does not indicate when, in terms of stages of development an assessment is to be made. The Applicant relies on screening vegetation to provide a great deal of the minimisation. Some of this vegetation screening will be provided by retention of existing vegetation on the site but there is also a reliance on street tree plantings. (Reliance cannot be made on screening provided by existing trees, particularly Pinus radiata, growing on land outside Lot 17 and thus not within the Applicant's control so that the long-term future of these trees is unknown.)
The agreed draft conditions of consent require that plantings in the road reserve be mature seedlings of at least 1 m in height (condition 12) (saplings might be a better description). The nature of the trees to be planted is to be provided in a landscaping plan submitted for each stage of the development for Council approval (condition 11) prior to the issue of the subdivision work certificate. At the time when the consent authority has to be satisfied, in order to grant development consent, that the subdivision has been designed to minimise the visual impact, the identity of the species will not have been specified. While some exotic species, notably radiata pine, might grow relatively quickly in the local environment, the native species appropriate to the locality are likely to be much more slowly growing, so the question of when the trees are to provide screening arises. Under the Applicant's proposal, where development of individual lots might not occur until well after the subdivision, there is even more uncertainty as to the height of the street trees at the time of the erection of particular dwelling houses. Once the dwelling houses were erected, they would potentially be clearly visible in some views if the screen plantings had not grown to sufficient height.
Schedule 1 cl 1(2)(b) requires that I be satisfied that visual impact be minimised, and therefore involves an evaluation on the merits rather than the application of an absolute standard. Clause 7.6(3) also requires that I be satisfied that the visual impact not be unacceptable which again involves consideration of the merits. Although what the consent authority is to be satisfied about is worded differently in Schedule 1 cl 1(2)(b) that from cl 7.6, there is overlap in the concepts, so the difference in wording may not in effect amount to a major difference in outcome.
7.6 Development within the Lake Eucumbene and Lake Jindabyne scenic protection areas
(1) The objective of this clause is to protect the following attributes within the catchments of Lake Eucumbene and Lake Jindabyne:
(a) the visual qualities and scenery,
(b) the sense of isolation that can be enjoyed in many areas on and adjacent to the lakes,
(c) the recreational functions of the lakes, including its attraction as a fishing destination,
(d) the water storage functions of the lakes.
(2) This clause applies to land identified as "Lake Eucumbene and Lake Jindabyne" on the Scenic Protection Area Map.
(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that:
(a) the development will not have an unacceptable visual impact on the scenic quality of the area when viewed from the relevant lake at its full supply level or from a public place, and
(b) the development has been designed to prevent any intrusion into the view from the lake at its full supply level.
(4) In deciding whether to grant development consent to development on any land to which this clause applies, the consent authority must consider:
(a) the visual impact of the development when viewed from the relevant lake at its full supply level or from a public place, and
(b) whether the design and construction of any new buildings (including ancillary development) prevent any intrusion into the view from the lake and minimises any adverse impacts on the view from the lake and surrounding areas, and
(c) the number, type and location of existing trees and shrubs that are to be retained and the extent of landscaping to be carried out on the site, and whether provision has been made for the planting of appropriate native species where the planting would visually screen the development.
Clause 7.6(3) includes a requirement that the consent authority be satisfied as to various matters. Clause 7.6(3)(b) establishes a higher barrier to achieving satisfaction than does Schedule 1 cl 1(2)(b). In cl 7.6, the test is that the development will not have an unacceptable visual impact; in Schedule 1, the test is to minimise the visual impact - thus referring to a process (minimisation) and not an outcome. It could be that the maximum effort possible has been made to minimise the impact but the visual impact would still be high - nevertheless because the impact is being minimised, the consent authority could reach the required level of satisfaction even if the result is still unacceptable; but visual impact, even if not minimised could, in some circumstances, be considered acceptable.
Clause 7.6 requires that the impact to be assessed is that on the scenic quality of the area. Scenic quality is not defined in the dictionary of the LEP; use of 'area' rather than 'site' perhaps indicates that the impact is to be considered in the context of both the site and its surrounds. The view is to be obtained from the lake or from a public place. On the site inspection we observed the site from a public place but not from the lake. The observations from the public place might be sufficient to form a basis for determining whether I was satisfied or not that there was not an unacceptable visual impact (cl 7.6(3)(a)) but we took no more than a brief overview. There were no height poles or other markers on the site which would have enabled identification of the location of future buildings. Schedule 1 cl 1(2)(b) requires that the view is to be from nearby residences and Lake Jindabyne. Taken literally we did not take a view that would allow a consent authority to achieve the necessary degree of satisfaction for purposes of applying Schedule 1. In practical terms being at or close to the lake level on the shore as against being on the lake would make at the most a negligible difference to visual perception of the site. However, I note that in cl 7.6(3)(b) the relevant view from the lake is to be taken from the lake at its full supply level. The draftsperson added a public place to cl 7.6(3)(a) but not to cl 7.6(3)(b) presumably for a reason. I assume that the absence of a reference to a view from a public place in Schedule 1 cl 1(2)(b) was deliberately intended.
Clause 7.6(4)(b) refers to the view from the lake, but sets a stronger constraint on the permissible effect of the development which must be designed to prevent any intrusion into the view from the lake. One possible interpretation would be, should cl 7.6 apply, to require no view of any part of a building. If the building cannot be seen from the lake or other vantage point there would be no view of the building (and in consequence there could be no view from the building on the reverse line of sight). To avoid this interpretation it is necessary to read into 'intrusion' connotations of offensiveness or undesirability which would raise questions of degree of unacceptability; despite the different terminology in the two subclauses the matter to be determined in subcl (b) is whether the intrusion causes an unacceptable visual impact.
Clause 7.6(4) provides that the consent authority must consider various matters before granting consent. Subclauses (a) and (b) directly relate to the matters about which I must be satisfied in Schedule 1 cl 1(2)(b). Subclause 7.6(4)(c) concerns vegetation
(c) the number, type and location of existing trees and shrubs that are to be retained and the extent of landscaping to be carried out on the site, and whether provision has been made for the planting of appropriate native species where the planting would visually screen the development.
This is information that would be required to assess whether the visual impact has been minimised, so the subclause can be considered as guidance as to the information that would expected to be available in the development application in order to form an opinion as to whether Schedule 1 cl 1(2)(b) is satisfied.
Schedule 1 cl 1(2) refers to design (as does cl 7.6(4)(b) which asks about the design and construction of any new buildings (including ancillary development). What does design mean in this context? 'Design' and 'construction' could be applied as either a verb or a noun. Dictionaries offer the following:
1. Macquarie Dictionary:
verb (t)
1. to prepare the preliminary sketch or the plans for (a work to be executed).
2. to plan or fashion artistically or skilfully.
3. to intend for a definite purpose.
noun
…
8. an outline, sketch, or plan, as of a work of art, an edifice, or a machine to be executed or constructed.
9. the combination of details or features of a picture, building, etc.; the pattern or device of artistic work.
….
11. a plan; a project; a scheme.
1. Oxford English Dictionary
Noun
6. A preliminary drawing or sketch; a plan, outline, or model produced to show the look or function of a building, machine, or other object before it is made or built.
Verb
15. transitive. To produce (a design) .
(a) To make drawings for the construction or creation of (something, as a building, object, garment, etc.) according to certain aesthetic criteria;
(b) to make plans for the production of (a device, product, etc.) according to structural or functional criteria (sometimes without the implication of aesthetic requirements);
(c) (in extended use) to conceive, devise, plan (something immaterial, as a scheme, system, programme, etc.).
Now the most common sense
Both sources have suggestions that design may be preliminary, but where design relates to something that is to be carried out then the general usage would require a level of detail, so as to enable construction to be carried out.
Before it can be decided that the visual impact of development will be minimised, there needs to be identification of the visual impact, for which evidence is required.
Neither party called an expert in the field of visual impact and scenic quality. There was in Exhibit A, behind Tab 11, a document entitled Subdivision of Lot 15 on DP 263151 Visual Impact Statement, dated February 2016. This had been authored by Mr Griffiths, the Applicant's surveyor. Mr Griffiths was present during the site inspection but he was not questioned about visual impacts nor was he called as an expert during the subsequent hearing in Court. Mr Griffiths' curriculum vitae was not attached to the report, so I am unaware as to whether he has any particular expertise in visual impact analysis. The document is short, three pages of text, a perspective view and two annotated aerial photographs. By virtue of inclusion in Exhibit A it is in evidence, not as expert evidence but as a report on which the Applicant relies.
The perspective view is as if taken from a drone above the lake about 50-60 m elevation. Shown on the diagram are the existing lots within East Jindabyne and the lots proposed in the development (that is the development as proposed in early 2016, not the final form of the proposal as at the end of the hearing).
Importantly,
"The view does not take into account any screening that areas of vegetation, tall trees etc would have on the visibility of the proposed project. It does show which lots are visible from the lake in a bare earth situation. Due to the eye height 50 - 60 m above the water level it is easy to see that most of the proposed and all of the existing lots can be seen from the western view locations."
An eye height near water level would not show a number of the new lots.
Mr Griffiths concluded that:
"• The proposal does not include any ridge top dwellings
• Is screened by existing vegetation at ground level
• Has larger lots than surrounding settlement
• Will still provide both long and short views for residents. Long views from lake side lots and short views of Rushes Creek and the gorge from the eastern side lots.
• The proposal will look similar too, but less dense than the existing neighbouring subdivisions from the lake. The proposal will complete the general residential scene as viewed from the west up to a logical place to stop, that is, Rushes creek and bay.
In the opinion of the writer the proposal fits into the locality well, and will have minimal visual impact.
Any impact will be consistent but less than the existing settlement."
For purposes of argument, I am prepared to adopt Mr Griffiths' opinion that, at bare earth stage, the subdivision itself (clearing for roads and associated development, cleared areas defining the building footprints) would probably not be visible when viewed from the Lake. However, assessment of impact in relation to views from nearby residences is also required to be undertaken. The appropriate existing lots from which the assessment should occur have not been identified, let alone has the impact on the view been considered. While the bare earth stage may be transient, if the areas of the proposed development can be seen from any nearby residences, then the impact of the view might be considerable.
The issue of visual impact was discussed in the joint report of the planning experts (Exhibit E) and in their concurrent evidence (Tcpt, 3 December 2019, pp 42-74).
In their evidence, the experts made no reference to Mr Griffiths' report. Nor did either address what might be meant by visual impact or scenic quality.
However, the experts did discuss the proposed layout, in the Applicant's case drawing attention to the building envelopes and APZs, the proposed plantings, the height restriction on buildings and DCP requirement that buildings on slopes be stepped. Ms Puckeridge in cross-examining Mr Fitzsimmons drew attention to particular lots where, on her interpretation of the contours provided on the plan, screening might be difficult.
In relation to visual impact, Ms Puckeridge's case, in submissions (pars 64-67), was:
"64. … even though the development does not propose the erection of dwellings, the Court needs to consider what the development will look like after the erection of those dwellings.
65. Furthermore, the Court must consider pursuant to cl 7.6(4) of the SRLEP:
(a) the visual impact of the development when viewed from the relevant lake at its full supply level or from a public place, and
(b) whether the design and construction of any new buildings (including ancillary development) prevent any intrusion into the view from the lake and minimises any adverse impacts on the view from the lake and surrounding areas, and
(c) the number, type and location of existing trees and shrubs that are to be retained and the extent of landscaping to be carried out on the site, and whether provision has been made for the planting of appropriate native species where the planting would visually screen the development.
66. The Council's primary submission is that there is insufficient information to enable the Court to conclude on the basis of these factors that there will not be an adverse visual impact.
67. In the alternative, the evidence suggests that there will be such an adverse impact. In this regard, the dwellings to be erected on lots 3 to 6 and 12 to 14, which were of particular concern to Ms Ballinger, will be readily visible from the Lake. Such is clear from the difference in ground levels shown on Exhibit B between the vegetation intended to act as a shield within the riparian zone and the ground levels at the proposed location of those dwellings. By way of example:
67.1 The proposed dwelling on Lot 12 is between 942 and 948 AHD;
67.2 The ground level of the riparian zone which is relied upon to shield the dwelling is between 910 and 922 AHD;
67.3 The ecological experts agreed that mature snow gum trees will grow approximately 10m height;
67.4 The experts agree that the SRLEP permits a building of 9 metres in height about ground level;
67.5 Accordingly, the riparian zone will provide no shielding at all for the house at Lot 12."
Even though Ms Puckeridge's argument is in the context of cl 7.6, it is equally relevant to the consideration required by Schedule 1 cl 1(2)(b).
At the time the planning experts gave their evidence, there was not in existence a Vegetation Management Plan (or Vegetation and Fauna Management Plan as it subsequently became) which would apply to the retained vegetation on the site, although one was foreshadowed. Mr Fitzsimmons also relied on possible landscaping within the APZs (Tcpt, 3 December 2019, p 71(4-6)). Mr Fitzsimmons (Tcpt, 3 December 2019, p 71(11-12)) explained that "we're not proposing to block the view, just screen and soften the view". This outcome, if achieved, would be compatible with minimisation.
The Applicant has provided in Addendum A to Exhibit B building footprints for the 19 new lots. These are not indicative footprints presented for the purpose of demonstrating that it would be possible to accommodate buildings on the lots but actual maximum building envelopes in the positions in which buildings will be erected if approval is granted. However, they represent maximum building envelopes in the positions in which buildings will be erected. A future owner may choose to construct a smaller building. The envelopes are two-dimensional, they do not contain information about the height of the building, although the height controls in the SRLEP (cl 4.3) restrict the height of any building on the site to 9 m). Erection of buildings smaller in area and lower in height would not automatically reduce overall impact, if the consequence of altering the size on a particular lot was to make other buildings that would otherwise be shielded by the building more visible.
The site is zoned E3, but the constraints on subdivision applying to E3 land are overridden by cl 2.5 and Schedule 1 cl 1. While the land remains zoned E3, subdivision to permit up to 20 dwelling houses is permitted.
The Applicant's argument stressed BGP at [118], although the second half of [118] is a proviso which applies to all development applications - that the environmental impact be acceptable.
Paragraph [119] of BGP recognises that zoning may have occurred when environmental expectations were different from those of today. The Applicant suggests that SRLEP is a recent instrument so that [119] is not relevant.
The applicable LEP prior to SRLEP was Snowy River Local Environmental Plan 1997 (SRLEP 1997). In 1997, no form of snow gum grassy woodland was listed on the schedule of the Threatened Species Conservation Act 1995 (TSCA). On 18 March 2005, the Snowy River Local Environmental Plan 1997 (Amendment No 6) was made and appeared in what was then Schedule 3 as an additional use provision, in words essentially the same as those in the current Schedule 1 (Exhibit H). In 2005, there was similarly no snow gum grassy woodland in the schedule of the TCSA.
On 15 April 2011, a final determination was issued by the Threatened Species Scientific Committee for the Tablelands Snow Gum, Black Sallee, Candlebark and Ribbon Gum grassy woodland in the Southern Highlands, Sydney Basin, South East Corner and NSW Western Slopes Bioregions EEC. The vegetation of Lot 17 fell within the description of this EEC.
The gazettal of the current SRLEP in 2013 thus occurred after the listing of an EEC present on the land. SRLEP 2013 brought the SRLEP 1997 into the standard template form, and transferred the additional use provisions from within what was previously Schedule 3 to what is now Schedule 1, but without material change in wording or effect. No information was provided as to whether the EEC listing in 2011 was considered before SRLEP 2013 was gazetted.
On 28 June 2019, the final determination for MTCTGW was made, which recognised the ecological community as a subset of the previously listed 2011 listed community, but with critically endangered status. This occurred after the refusal of the DA and after the current proceedings had been commenced.
Critically endangered is the highest level of endangerment recognised in the BCA and the fact that a community has 'critically endangered' status is a circumstance that should, in my view, be given considerable weight. I agree with Mr Stafford that the zoning cannot be ignored and that it is relevant that measures are proposed in the application which have the intent of reducing impacts. However, I do not agree with Mr Stafford that I could not conclude that it would be difficult to develop this site at all in an environmentally acceptable manner 'as a result of' - where 'result of' is the elevation of status to critically endangered. I think that it would be difficult and indeed it would have been difficult under the original EEC status of the community, but potentially not impossible if a strong argument in favour of the mitigation measures proposed could be sustained. It would not simply be a matter of accepting mitigation measures without exposing them to rigorous examination.
Mr Stafford pointed out that the map had not been on public display to allow comments to be received and considered. As such, following Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 (Stockland) at [91], he considered that little weight should be placed upon it. However, since the map is neither an environmental planning instrument nor a draft policy, the dicta of McClellan CJ in Stockland are not applicable. Draft maps have an uncertain status in the planning system.
The existence of the map is in the public domain. In the planning certificate for Lot 17 (tendered by the Applicant as Exhibit K), there is included information about the draft bushfire prone map and the consequences for future development applications if the draft map were to be endorsed by RFS. The preparation of a map of this nature requires specialist knowledge so that while a degree of public consultation may be desirable, decisions as to what is included on the map are in the province of the relevant experts. The map has a broad brush approach and there will be included within areas mapped as bushfire prone local occurrences where the risk would be less than most other areas on the map. However, the fine scale detail would be considered in the assessment of applications by the RFS.
The development application before the Court is for subdivision, and while some details of potential future buildings are provided, the Applicant does not seek approval for erection of specific dwelling houses. If, contrary to my determination that the application should have been for subdivision and erection of buildings (my emphasis), the Applicant's position were adopted, then at the present time, the land is not regarded as bushfire prone and hence stringent measures to address bushfire are not required. Under this scenario, individual development applications would be made in the future, and would be determined under the provisions applying at that time. If the RFS had, by that time, endorsed the draft map then the provisions might require that the RFS provide general terms of approval which might require a higher BAL for construction and require altered APZs from those shown in the existing application. The current layout and management of APZs is an integral underpinning for the proposed Vegetation and Fauna Management Plan. If changes to these were made, it might mean that the development currently proposed could not be carried out unless alterations were made to the VFMP.
Dr Wotherspoon was extensively questioned by Ms Puckeridge about assumptions he made in his analysis of bushfire issues. He agreed that his analysis was based on assuming the MTCTGW present on site would be in the condition he expected after full recovery, a state which may take a number of decades to attain. He also treated the woodland as if it were grassland. Parts of the site now have areas of shrubs which he regarded as a seral stage in the recovery from disturbance, and that in time, the shrub component would naturally reduce. He did not separately consider the fuel properties of the shrubs. He considered that his approach was appropriate and in line with current guidelines.
Exhibit K was initially tendered during the hearing in Cooma Local Court on 2 December 2019. After I had reserved judgment, I raised with the parties via Online Court a query regarding the interpretation of Exhibit J. This query was very promptly resolved, but the response gave rise to a consequent query regarding Exhibit K. As a response to this second query, the parties, by agreement, communicated by Online Court on 16 March 2020, requesting that I replace the planning certificate in Exhibit K with a revised version. On 16 March, by Online Court, I granted leave to reopen the matter, and granted leave to substitute the version of Exhibit K communicated to the Court on 19 March 2020 for the original 2 December 2019 version. The original version had not contained information about the detached part of the site which was to become Lot 1 Part B.
Terrestrial Biodiversity is the subject of cl 7.2 of SRLEP.
7.2 Terrestrial biodiversity
(1) The objective of this clause is to maintain terrestrial biodiversity by -
(a) protecting native fauna and flora, and
(b) protecting the ecological processes necessary for their continued existence, and
(c) encouraging the conservation and recovery of native fauna and flora and their habitats.
(2) This clause applies to land identified as "Biodiversity" on the Terrestrial Biodiversity Map.
(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider -
(a) whether the development is likely to have -
(i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and
(ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and
(iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and
(iv) any adverse impact on the habitat elements providing connectivity on the land, and
(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that -
(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
The site is identified as "Biodiversity" on the Terrestrial Biodiversity Map, so the clause is applicable.
In cl 7.2(3) subcll (a)(i), (ii) and (iv), I am required to consider any adverse impacts on aspects of biodiversity. Consideration is not to be limited to 'significant adverse impacts' but to address all adverse impacts.
Subclause 7.2(3)(b) requires consideration of measures to 'avoid minimise or mitigate' the impact. Although the wording used differs, 'avoid, minimise or mitigate' is, in effect, synonymous with 'avoidance, mitigation and offset' in Bulga at [147].
Clause 7.2(4) requires that the consent authority be satisfied in relation to at least one of subclauses (a) - (c), but the adverse environmental impact has to be significant.
The Applicant's position on the Cotoneaster area was explained as
"Mr Harker referred to the heavily weeded part of the site that we all saw. Can I point out that just because there is heavily weeded, it doesn't mean that it's a poor choice for an offset. To the contrary, to achieve additionality, additionality in the context of an offset, means that it's desirable to achieve something more than what would have been achieved in the business as usual case and the fact that parts of the offset are heavily weeded goes to the applicant's contention that it's providing a genuine offset. The fact that it's heavily weeded provides an opportunity to improve those parts of the site that are offsets, and to achieve something that's additional to the business as usual case, so it's entirely appropriate, Commissioner, that a heavily weeded part of the site, but one that I note nonetheless contains species consistent with the Monaro woodland, is one that should be chosen to be part of the offset.
If we'd simply chosen all the parts of the site that were entirely pristine, this wouldn't be true offset after all, because we wouldn't have achieved anything in the context of the site. There are significant opportunities across the offset area, being as Dr Wotherspoon said, 50% of benchmark to improve the site. We're not shirking from the fact that offset areas have been chosen that need some work, because that's exactly what the intention is here, to improve it above 50% of offset in those areas."
(Tcpt, 20 December 2019, p 40(30-49))
The argument that there has to be a balance between ecological and planning considerations might be accepted as a general principle, but it does not fit well with the earlier statements about siting being designed to avoid the better areas of the ecological community.
I accept that on implementation of the VFMP the condition of areas such as the Cotoneaster stand might improve. However, offsets are to be used to address the impacts that remain after avoidance and mitigation measures have been put in place (Bulga at [147]). If there were opportunities for the avoidance or minimisation impacts of the development these must be taken before offsets are considered.
Only one subdivision plan was discussed. There was no discussion of possible alternative layouts, or of different sized lots which may have provided opportunities for minimising impact.
The Respondent also expressed concern about whether the protection of tree hollows had been maximised in the design layout. As was observed on the view not all trees with hollows and fallen logs had been mapped. However, the number of the trees mapped several years earlier had since fallen - reflecting the ephemeral nature of these resources, so that the data will change over time. Nevertheless development of some of the lots would involve removal or relocation of larger numbers of trees (standing or fallen) than others: Without detailed analysis, it is not possible to determine the extent to which alternative designs might result in better protection of the hollow resource.
Mr Stafford attempted (unsuccessfully) to get Dr Robertson to agree to the proposition:
"STAFFORD: So the offsets then that are proposed are really, aren't they, just icing on the cake to measures that have been put in place to minimise any impacts that are unavoidable?"
(Tcpt, 4 December 2019, p 32(45-47))
Given the absence of evidence of avoidance and the limited minimisation there is no cake on which to put the icing. What Mr Stafford referred to as icing are the ameliorative measures which only come into play when achievement of avoidance and minimisation is considered by an applicant to be not practical or possible. That being the case then there would need to be certainty in the outcome of any ameliorative measures. While the Applicant relies on a deferred commencement condition to finalise the VFMP prior to commencement, this leaves too much to be decided following approval. As I have decided that the riparian zone (see Additionality below), while it is important to be managed, should not be included in the offset calculation, the offset ratio will be less than the 3:1 claimed by the Applicant. I note that in Bulga an appropriate minimum offset ratio was considered to be 6:1 - Bulga at [234]-[235].
The Applicant concluded that a SIS is not required, the Respondent contended otherwise.
The Applicant relied upon the evidence of Dr Wotherspoon who had prepared an individual report (Exhibit F) and participated in the preparation of a joint report with Dr Robertson, the Respondent's expert (Exhibit G). Dr Robertson had also prepared an individual report (Exhibit 5).
Dr Wotherspoon's initial report was prepared in 2017, which was before the listing of the CEEC (although the vegetation on the site was then characterised as an EEC). The investigation including mapping hollow trees and at least the larger fallen logs. At the time of the site inspection on 2 December 2019, a number of the hollow trees present in 2017 had collapsed. This does not reflect any deliberate damage but rather the fragility of these old structures. If approval were to be granted, it is likely that before any construction occurred, further hollow trees may have become fallen logs (part of the proposed VFMP involves relocation of some fallen logs and hollow trees).
Dr Wotherspoon and his team from Abel Ecology collectively spent two weeks on site - in my experience, an exceptionally intensive effort in view of the relatively small area of the site. The location of quadrats for recording vegetation, and of various transects and walks conducted by the consultants is illustrated in Fig 9 (in Exhibit A, Tab 10, folio 297).
Dr Robertson was of the view that four quadrats provided an inadequate record of the vegetation, given the obvious heterogeneity of the site. Dr Wotherspoon argued that four was more than the number (three) indicated in the OEH guidelines for a site the size of Lot 17. Three of the quadrats were chosen to provide stratification of samples by elevation - the basis for choosing the location of the fourth quadrat is not clear. In particular, Dr Robertson considered that there should have been a quadrat from the area of dense Cotoneaster viewed on the site inspection. Dr Robertson was also strongly of the view the absence of vegetation mapping severely restricted assessment of the site.
The guidelines suggesting that three quadrats were required are merely that - guidelines - they are not an absolute prescription. In view of the heterogeneity of the vegetation cover, more quadrats would have been desirable. Nevertheless, given the intensity of inspection across the site the ecological surveyors were likely to have a mental image of the site which would have assisted their assessment.
The 7-Part test established in s 5A(2) of the EP&A Act is, in the circumstances of the assessment for an ecological community, reduced to 3 factors - s 5A(2)(c), (d) and (g).
5A Significant effect on threatened species, populations or ecological communities, or their habitats
(1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats:
(a) each of the factors listed in subsection (2),
(b) any assessment guidelines.
(2) The following factors must be taken into account in making a determination under this section:
(a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,
(b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,
(c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:
(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or
(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,
(d) in relation to the habitat of a threatened species, population or ecological community:
(i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and
(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and
(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,
(e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),
(f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,
(g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.
(3) In this section:
assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994.
key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 1994.
Consideration of the relevant factors in s 5A(2) is mandatory, but this does not preclude inclusion of other matters which might be relevant in circumstances peculiar to an individual site.
There was considerable disagreement between the experts in relation to the meaning of 'local occurrence' in s 5A(2)(c)(i). For the purposes of assessment, 'local occurrence' is defined in NSW Department of Environment and Climate Change, (2007) Threatened Species Assessment Guidelines. The assessment of significance at page 7 as:
"Local occurrence: the ecological community that occurs within the study area. However the local occurrence may include adjacent areas if the ecological community on the study area forms part of a larger contiguous area of that ecological community and the movement of individuals and exchange of genetic material across the boundary of the study area can be clearly demonstrated"
('study area' refers to the site of the proposed development, in the present case Lot 17).
Contiguous is not to be taken literally as implying the existence of an unbroken uniform area of the community. What might be mapped as uniform is likely to be heterogeneous with areas of different substrates (rock outcrops, water bodies etc) or areas that may have been affected by clearing or other disturbance. In Dr Wotherspoon's terminology, the matrix is porous. There are likely to be some points of contact between patches and the gaps are not such as to impose limitations on movement of individuals or prevent or restrict gene exchange.
The importance of adopting this broad view of local occurrence is to draw attention to the consequence of isolation of patches, such that movement of individuals or of genes is restricted.
The movement of individuals and the exchange of genetic material involve individuals of species and their propagules. Communities do not have genes (although they contain many individuals of species which do have genes) and nor do they move, at least in the sense that individual animals can move. The individual components of a community may move, but possibly at different rates or in different directions so that over time community composition might change, but the community does not move as an intact entity across the landscape. As an ecological community Birnam Wood did not come to Dunsinane, even if camouflaged soldiers were able to give the impression of movement.
Macbeth shall never vanquished be until
Great Birnam Wood to high Dunsinane Hill
Shall come against him.
Macbeth Act 4 Scene 1, spoken by the Third Apparition
Any ecological community contains many species (the vast majority not included within the species list in the final determinations for those communities). The ability to move will vary between species and whether what is moving are individuals of the species or merely parts of species. Distance of movement of parts is largely dependent on the vector of movement - movement of seeds by birds and bats involves very much larger distances than those due to ants.
Dr Wotherspoon postulated a very large local area (variously 12-20 km across) for the CEEC. The site is situated close to Lake Jindabyne, which would be a barrier to movement for some, but not all, of the species in the community. It is best to think of this area as being a semicircle centred on the site and extending to the east. Dr Robertson was more circumspect, postulating initially an area of around 740 ha and subsequently an area of 51.6 ha.
Dr Wotherspoon recognised that the mechanisms and distance of movement vary between species.
"WITNESS WOTHERSPOON: Well, if you go to my appendix in which we are discussing this, appendix F, I talk about those mechanisms. So what I'm doing is summarising for you that the isolation process, as you heard earlier from Dr Robertson, say grasses are wind pollinated, that distance might be hundreds of kilometres. For the bird pollinated species where we have six honeyeaters on this site, those honeyeaters move around the landscape so that enables pollen to move, that's a gene flow. So the mechanism depends entirely on the species. If it's a beetle they fly, you know about the annual migration of Bogong moths; because it's a moth it doesn't mean that it can't travel a great distance."
(Tcpt, 4 December 2019, p 41(39-49))
The suggestion that wind pollination might occur over distances of hundreds of kilometres is wrong. Pollen can be carried by the wind for hundreds of kilometres but effective pollination over such a distance would have vanishingly low probabilities.
Pollen density will decline exponentially away from source and even with wind pollinated species such as grasses, the majority of pollen is likely to be deposited within relatively short distances from the source. (As I explained during the hearing - Tcpt, 4 December 2019, p 42(10-29)).
Despite the wording of the definition of 'local occurrence', positive demonstration of movement of individuals and genetic material across the boundary of the study area is difficult and unlikely to be attempted. It will be easier to identify potential barriers to movement or exchange (see Statewide at [93]). Again what constitutes a barrier will depend on the species being considered. Mr Stafford suggested several times that roads were not barriers - for many species this is true, but for some species even a small break in vegetation cover will act as a barrier. Whether this has consequences at a community level will depend on the species concerned and their role in the community.
Movement of pollen permits gene flow and establishment of patterns of heterozygosity in a landscape scale. Movement of individuals and fruit or seed is also a mechanism of gene flow but permits colonisation of new sites, facilitating accommodation to climate change or recolonisation of damaged sites.
Heterozygosity, which reflects the outcome of movement of genes is an important attribute of species, and has been studied in Tasmanian snow gums with results indicating that heterozygosity is stabilised over a scale of tens of kilometres (A Gauli et al., 'Molecular genetic diversity and population structure in Eucalyptus pauciflora subsp. pauciflora (Myrtaceae) on the island of Tasmania' (2014) 62 Australian Journal of Botany 175). This is not to say that pollen transport in a single event necessarily occurs at this scale but that over a period of years, cumulative movement of pollen within an area at that scale is sufficient to maintain the pattern of genetic diversity. Guali et al's results are interesting, but while they refer to snow gum woodland, the location is well south of Jindabyne and the environmental conditions are different. The measure of heterozygosity was specific to snow gum and says nothing about variation in other species in the community (some of which might also occur in the Snowy Mountains, but others will not). Nevertheless, it would be reasonable to extrapolate to the extent of expecting that gene flow in Snowy Mountains snow gums would maintain heterozygosity in the population over distances of kilometres, and while snow gum is one of the characteristic species of MTCTGW, different plant species with different pollination biology may show different patterns of variation, and the animals which form part of the community will show diverse patterns of variation, which may not match those of elements of the flora.
If the local area is towards Dr Robertson's lower estimate, which I would favour over Dr Wotherspoon's extrapolations, the area of the community which will be directly affected by the proposal is on Dr Robertson's calculations about 11 ha, which is about 20% of his estimate of the local area. The Respondent's position was expressed by Ms Puckeridge in submissions at par 79.
"Council's position is not that the development alone is likely to place the local occurrence of the CEEC at risk of extinction, but that the impacts of the development will contribute to the long-term extinction of the local occurrence."
The relevant factors prescribed in s 5A are not the only matters which a consent authority may take into consideration - there may be circumstances applying to the site in question which are relevant to determination of whether an SIS is required (NHVSS at [85]).
Cumulative impacts are widely recognized as being a major factor which has determined the present conservation status of species and communities, and should be taken into account: BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210 at [89]-[90]. However, acknowledging the past does not readily permit extrapolation to the future. At the time of making a decision, a consent authority is unlikely to have knowledge of other proposals which might eventuate (see discussion in Statewide at [90]-[115]).
The Respondent returned to the question of cumulative impacts in submissions par 96.
"96 The CEEC on the Site is therefore one that is presently at risk. Whilst the clearing of vegetation will not result in extinction, it will, as stated by Dr Robertson in cross examination contribute in a 'cumulative way' to the probably extinction of the CEEC in the locality. The Applicant has not pointed to any evidence that suggests, contrary to these risks, that the development will not, as a consequence of cumulative impacts, contribute to the extinction of the CEEC. Dr Wotherspoon focusses in his assessment of significance in an apparent vacuum on the proportion of land to be cleared. Indeed, he accepted in cross-examination that he did not consider anything beyond the 7 part test in s 5A. His evidence does not assist on the point of cumulative impacts, and the court should prefer the evidence of Dr Robertson."
I accept the point, but it is difficult in evaluating a single proposal to call upon the unknown unknowns of possible future proposals outside of the Applicant's knowledge or control within the distribution of MTCTGW. Other mechanisms outside the Court system may be required to address the undoubtedly important issue of cumulative impacts.
Other matters which might appropriately be taken into account were referred to by the Respondent in submissions at pars 83-84.
"83 In the present instance, regional patterns of distribution, mobility/connectivity with other areas of CEEC, the listing of the ecological community as critically endangered, and its fragmentation are all relevant matters to consider.
84 Also relevant is the particular incidence of dieback of snow gum which Dr Robertson indicated in oral evidence is prevalent in the surrounding area. Indeed, Dr Wotherspoon stated that the areas of Cooma and Jindabyne are substantially impacted by dieback and the particular community on the site is at risk."
Dieback of extensive areas of different eucalypts have been reported from a number of areas of Australia over recent decades. The causal mechanisms are generally unknown, but appear to involve interactions between different factors. Currently, there are least two dieback syndromes affecting snow gum woodland. Currently, the woodland on Lot 17 does not seem to be affected by either, which is a factor increasing the value of the site. Possibly, the most widespread of the diebacks affects ribbon gum, which while characteristic of MTCTGW does not occur on Lot 17. The other affects snow gum and is associated with a particular weevil. The weevil is predated by sugar gliders, for which Lot 17 currently supports a healthy population.
Other examples of the sorts of factors which might be considered were given by Preston CJ in NHVSS at [114]:
114 One factor that might be relevant is whether the local occurrence of the EEC in which the action is proposed has features of interest related to individual species in the assemblage, such as the presence of particular threatened species of flora or fauna or the presence of exceptionally large, mature specimens of tree species. The presence of such features of interest might increase the significance of the adverse impacts on the EEC.
The size of some of the large hollow trees and fallen logs on the site might fall into this category, although the trees concerned have passed beyond maturity into senescence. Nevertheless, they are of historic significance as well as continuing to play important roles in a number of ecosystem processes.
As part of the s 5A process, it has long been accepted that taking into account proposed mitigation of impacts is appropriate (NHVSS at [115]). However, that acceptance is accompanied by a number of qualifications as explained by Preston CJ in NHVSS at [82]-[83]:
82 A number of points may be made about this requirement. First, s 78A(8)(b) focuses on the development proposed in the development application; the inquiry is whether the "development" in respect of which application is made is likely to significantly affect threatened species, populations or ecological communities or their habitats. An application can, of course, be amended after it is initially lodged. The development proposed, therefore, may be amended. The relevant time for the inquiry is immediately prior to the determination of the application; it is the development as it then stands that is to be evaluated for its likely impact on threatened species, populations or ecological communities or their habitats: Corowa v Geographe Point Pty Ltd at [50], [51]. In this case, therefore, the inquiry must focus on the development as it finally stood at the conclusion of the hearing of the appeal.
83 Secondly, the description of the development the subject of the development application is not restricted to the nature, extent and other features of the development but can also include ameliorative measures to prevent, mitigate, remedy or offset impacts of the development. However, in order to be able to be considered in answering the inquiry of likely impact, the ameliorative measures must be proposed as part of the development application. Ameliorative measures not proposed as part of the development application, but which are imposed afterwards, as conditions of consent or restrictions in construction certificates, are not able to be considered in answering the inquiry as to likely impact. This is because the inquiry required by s 78A(8)(b) focuses on the development and its likely impact before the determination of the application and not afterwards: see Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 192; Smyth v Nambucca Shire Council [1999] NSWLEC 226; (1999) 105 LGERA 65 at [11]-[13]; Corowa v Geographe Point Pty Ltd at [57].
The importance of ameliorative measures having to be part of the application had been made earlier by Talbot J in Silverwater at [53]-[54]:
53 It is not open for the Court to determine the question of whether the development is likely to significantly affect threatened species, populations or ecological communities or their habitats for the purpose of s 78A(8)(b) of the EP&A Act by taking into account measures to be introduced as a condition of the proposed consent in order to mitigate the impact of the development, unless the mitigating or protective measures are part of the proposal submitted in the development application (Drummoyne Municipal Council v Maritime Services Board & Ors (1991) 72 LGRA 186; Byron Shire Businesses for the Future Inc v Byron Council & Anor (1994) 84 LGERA 434; Donnelly v Delta Gold Pty Ltd & Ors [2001] NSWLEC 55).
54 Furthermore, a condition designed to mitigate impact introduced during the course of a hearing cannot be taken into account in this context (Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451).
Did the application contain ameliorative measures? As NHVSS at [82] makes clear, this question must be asked of the application in the form it was in at the end of the hearing. It is clear that the application at the start of the hearing did not but the application was amended during the hearing, and at the end of the hearing was constituted by Addendum A to Exhibit B, in the form tendered on 20 December 2019. Right from the start of the hearing, the Applicant had foreshadowed what was originally referred to as a Vegetation Management Plan, which later became a Vegetation and Fauna Management Plan (VFMP). This first appeared as "MFI 1" and towards the end of proceedings was formally tendered in modified form as "Exhibit O". Was Exhibit O part of the Application?
It is my understanding that this was the intention, and I accepted Exhibit O on this basis, although I recognize that there was some confusion over this, but I will continue on the assumption that it is part of the application. The Applicant's position was stated as:
"STAFFORD: …
He said something along those lines. I've probably written my note very badly, but Dr Wallispoon made it very, very, very clear that the VMP is not relied on for the purposes of the test of significance, so you don't need to be troubled about whether the VMP needs to be taken into account for that purpose, but I also note, if it wasn't already clear, we are intending the VMP to be part of the development application. We certainly seek leave to rely on it for that purpose and as I possibly unfortunately pointed out during Mr Harker's submissions, the conditions of consent, condition 2 in particular, was drafted to refer to amendment to the VMP, specifically because we wanted the VMP to be part of the development application, so that whatever ultimately you might think of the VMP, Commissioner, it provides a solid starting point from which council can then, in the deferred commencement condition, be satisfied. If there's anything else council wants added to the VMP, it can deal with that at the deferred commencement stage; but I say that the conditions that you've got are a gold standard starting point. The VMP, I know that both you and Dr Robertson raised points this might able to be addressed, or that part able to be addressed. In my submission, if there are any concerns that anything that hasn't been addressed that should be, that can be dealt with by imposing a condition in the deferred commencement process, rather than refusing the proposal."
(Tcpt, 20 December 2019, p 41(31-50))
However, does the VFMP in Exhibit O provide adequate amelioration? Exhibit O is a draft and is incomplete. The proposal is that there will, in effect, be 20 VFMPs, one for each of the 19 new lots, and one for the various parts (A-D) of Lot 1. Exhibit O, as tendered, does not include all the component plans, but only an example. However, the draft conditions include a deferred commencement condition (condition 2) providing for the preparation and submission for Council approval, of the plans for each lot.
"Deferred commencement
2. Pursuant to s 4.16(3) of the Environmental Planning and Assessment Act 1979, this consent is not to operate until the person with the benefit of this development consent provides an amended Vegetation and Fauna Management Plan to the satisfaction of Council. Such plan is to be provided within 24 months of the grant of this consent, and is to include a single page for each lot in the subdivision setting out:
(a) detailed vegetation community mapping and weed mapping for that lot, overlaying from the Approved Plan:
(i) the "Offset Area", being the green area identified as "Offset Area" on the Approved Plan excluding the driveways identified for Lots 18 and 19;
(ii) the "Other Managed Vegetation Area", being the pink area identified as "Other Managed Vegetation Area" on the Approved Plan; and
(iii) the "Domestic Living Area", being the area hatched in green identified as "Domestic Living Area including APZ" on the Approved Plan, including the driveways identified for Lots 18 and 19;
(b) any specific management requirements for that lot;
(c) a statement of the biodiversity values for that lot; and
(d) an overlay of the trees to be retained or relocated from Table 1 to the Individual Expert Report Ecology for Proposed Subdivision of Dr Danny Wotherspoon dated 1 November 2019."
Given the heterogeneity of the vegetation, slope and landform across the site, each new lot will require an individually prepared plan - it will not be a matter of just changing the number of the lot on a standard document, but preparation of separate documents which even if conforming to a template will be different in details.
This proposal differs from that in NHVSS at [116]:
116 The present case differs from BT Goldsmith in a number of respects. First, the extraction area will be rehabilitated so that at the end of the extraction and rehabilitation phases both the habitat and community will be present in some form. Secondly, the conditions proposed by Stoneco and the Council contain provisions for the implementation of management plans designed to ensure the enhancement and maintenance in perpetuity of EEC in the Project Site. These plans allow for ongoing review and adaptive management. These conditions provide sufficient assurance that the adverse impacts of the proposal will be ameliorated such that the overall assessment under s 5A is of no significant impact so that no SIS is required.
In NHVSS, there were requirements in the conditions for the preparation, approval, implementation, and review of plans and for adaptive management. Similar elements are found in the present proposal, but in NHVSS, there was only a single property and the detailed plans covered different aspects (vegetation, stygofauna etc), (see Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104) and there were not numerous plans for different areas of the site.
In NHVSS, Preston CJ adopted a synthesis of what Biscoe J had said in Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 at [119]-[124] stating that proposed ameliorative measures should be practical, enforceable and effective (emphasis added).
The Respondent expressed grave doubts about the workability of what had been proposed. Do Exhibit O and draft condition 2 meet a test of being practical, enforceable and effective?
What is proposed as the ameliorated measures? They take the form of designation of offset areas and the implementation of a VFMP.
The offset areas identified in Addendum A to Exhibit B, and their sizes are specified in the table in the top right-hand corner of Addendum A. All the offsets are within Lot 17, no other options were explored. The table of areas yields an offset ratio of 3:1, but this includes the riparian zone as offset in the calculation of the ratio.
Some doubt attaches to the offset ratio. Included within the offset area is provision of various utility services. It was unclear for much of the hearing how services would be installed, and the preference of the Respondent was for underboring. However, on the last day of the hearing, Mr Stafford informed the Court that following engineering advice installation would need to be by trenching, because of the nature of the site. Trenching would involve disturbance to the ground to make the trench, and further, albeit temporarily, disturbance from the mounding of material removed from the trench. Currently the route of the trenches and the extent of disturbance are unknown. In addition to the services a sewage pump is also identified on the plan but this merely indicates a possible position and gives no estimation of its actual footprint. There is no indication of whether replanting would be required or whether the area disturbed by the installation of services could regenerate naturally.
On the other hand, Dr Wotherspoon suggests that the ecological value of the offset might increase over time as the condition of the vegetation improves. Currently the condition of the vegetation is assessed as 50% of benchmark, so that it will improve under management and protection Dr Wotherspoon expects the value to increase. This may be so, but as I understand the calculation, the benchmark is established in terms of the native vascular plant composition of the community - biotic crusts, which are a conspicuous feature of parts of the site, would not contribute to this assessment, nor would the fauna present. The condition of the vegetation is judged on what is essentially a binary scale - poor and 'moderate to good' the same scale was applied to vegetation in Statewide. Much of the vegetation on Lot 17 falls into the moderate to good category but this encompasses a range of states.
The second aspect of the offsets approach which requires consideration is whether the regime proposed for implementation of the VFMP would be feasible.
Mr Stafford pointed out that the present case differs from the circumstances in Statewide, where it was proposed that the long-term management of an area of a CEEC (Cumberland Plain Woodland) would be conducted by neighbours, even though the ownership of the land would be in other hands. In the present case, the proposal is that the owner of each lot would be responsible for the implementation, at the lot owner's expense, of the VFMP applicable to the lot.
In the initial stages of the development, there would be one owner for the whole of Lot 17, but as individual lots were sold, the responsibility would pass to the new lot owners. Even after all 19 of the new lots were sold, the owner of Lot 1 would be responsible for management of Lot 1 Parts A-D, with, as I understand it, management of the road reserve being the responsibility of Council.
I agree with Mr Stafford that this is a very different scenario from that in Statewide, but similar questions about the workability of the proposed management regime arise in both cases.
The Respondent claimed that the VFMP requirements would be 'unlikely to be complied with'. The Applicant (submissions at par 71) argued that the requirements of the plan were 'reasonable and it is not unusual for a conservation management plan to be applied to a residential lot owner of environmentally sensitive land'. It is true the lot owner may be required to implement a conservation management plan of some type - but in the circumstances is what is proposed 'reasonable' as Mr Stafford claims.
Mr Stafford drew upon what Samuels JA said in Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates (1979) 39 LGRA 154 at 161:
The final submission put for the Council was that the intentions of the planners of the home might in the result not be realised. The memorandum and articles of association would permit the occupiers of the selfcontained units to outvote the occupiers of the hostel. It is possible and even likely that they would resist the levying of fees to provide welfare services to be enjoyed largely by the inmates of the hostel. In the result the services which justified the description of the complex as a home for the aged could wither away thus terminating the permitted purpose and leaving behind the two prohibited purposes of a boardinghouse and a series of residential flats. The possibility that an applicant who has been given consent to develop his property for a permitted purpose may change the user to a prohibited purpose is a threat posed to the enforcement of all planning schemes. I cannot agree that the responsible authority is thereby justified in classifying applicants into those who may cheat and those who won't and withholding consent on that ground from the former. The sanction for any abandonment of the approved purpose of the development is the power of the Council to move for an injunction to restrain the illicit use.
A consent authority cannot assume that the obligations imposed by the plan will not be complied with. The purchaser of any of the lots will have been made aware of the legal obligations, and Council will have the power to enforce the provisions in the event of an owner failing to carry out the required actions. Enforcement will be through the provisions of a s88B (Conveyancing Act 1919) instrument on the title of each lot.
What is proposed thus meets the 'enforceable 'requirement in 'practical, enforceable and effective' (NHVSS). However, is what is proposed 'practical' and 'effective' ('practical and effective' would encompass 'reasonable')?
If development consent was granted, the initial subdivision works would be carried out by the existing owner of Lot 1, who will also be responsible for the implementation of the VFMP. This would include rabbit control and weed management across the whole of the existing Lot 17.
As lots are sold, the new owners of the individual lots would acquire responsibility for implementation of the VFMP; obligations which would be enforceable by Council under the s88B instrument.
The owners would not be personally responsible for carrying out the work to implement the VFMP. Rather they would employ a project ecologist who would engage contractors as required. The project ecologist would submit the necessary bi-annual reports to Council, and prepare the revision of the VFMP after the initial five year period.
There would ultimately be 20 VFMPs (19 for the new lots, and one for Lot 1 Parts A-D, in addition Council would be responsible for management of the internal road reserves, after the roads are dedicated to the Council. As the 19 new lots are unlikely to be sold simultaneously, the unsold lots would continue to be managed by the owner of a Lot 1 until such time as ownership changed. The commencement of the individual VFMPs will be staggered over a period, which might extend over more than a year.
There is nothing in the VFMP which requires the owners of individual lots to collaborate. Equally there is nothing which would limit collaboration.
Dr Wotherspoon was of the opinion that owners would see advantages in collaboration, including greater efficiency and economies of scale in such matters as purchase of herbicides. There was also, implicitly, an assumption that all the owners would engage the same project ecologist.
For matters such as rabbit control and weed management, it would be advantageous if there was uniformity of management practice across the entirety of the current Lot 17. The draft VFMP contains fact sheets for a number of herbicides; there is no recommendation as to which should be used. If there were a single project ecologist, there is likely to be a more consistent approach across all lots than might be the case if different project ecologists were directing implementation of the VFMP on different lots. I cannot have confidence that all owners would be collaborative, despite Dr Wotherspoon's assumption. Implementation of the VFMP would benefit from collaboration but there is absent a mechanism to require collaboration. Given the lots would be Torrens title, there is no obvious way to enforce collaboration. The operation of the plan is likely to be suboptimal, and certainly not practical and effective. Ideally there would need to be a 'one in - all in' approach, but the presence of a few lot holders who, even if they complied with their obligations, chose a different approach to implementing the VFMP could make delivery of the plan inefficient.
Although the owners of the lots would be responsible for funding the VFMP as it applied to their property, there is no mechanism for guaranteeing that the funds required would be in a dedicated account, casting doubt as to whether the VFMP would be guaranteed continuity of funding in perpetuity.
The plethora of bi-annual reports and plan revisions required by the VFMP would place a substantial workload on Council officers. While there is no suggestion that the Council would be unable to assess all the reports it is perhaps unreasonable to impose this burden upon the staff.
Although the circumstances differ from those in Statewide, the possible outcome is likely to be the same - a VFMP which could be neither practical nor effective. The VFMP is the major ameliorative measure proposed, but fails the NHVSS test.
The inclusion within an application of ameliorative measures (which might include a management plan (or plans)) may be sufficient to overcome a 7 part test the results of which would indicate a requirement for a SIS. This was the case in NHVSS. However, in the present matter, the VFMP, in its current draft form is potentially so uncertain in its content and application that amelioration of the threat to the CEEC, and therefore a SIS is required, but has not been provided. As the requirement for a SIS is a jurisdictional fact, the appeal must also be dismissed on this ground.