Brookwood Land Pty Ltd v Shoalhaven City Council

Statutory setting

1. The parties agree that the original consent was granted under s 80(4) of the then EPA Act. That provision (with relevant equivalence to now s. 4.16(4)) relevantly provided that a development consent may be granted for the development for which the consent was sought, "or for a specified part or aspect of that development".
2. The applicant relies on s. 80(5) of the then EPA Act (now s. 4.16(5)) which provided that development consent may subsequently be granted for the undetermined portion of the development application in the following terms: (5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.
3. As introduced above, the DA is to be assessed under the former rather than current statutory scheme relating to biodiversity conservation. As advised by the parties, s 28 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 provides that Part 7 of the Biodiversity Conservation Act 2016 does not apply to pending or interim planning applications (subject to certain unapplicable exceptions).

Issues in dispute

1. The primary issue in dispute, and determinative in this instance, is concerned with biodiversity conservation related considerations. In respect to this issue, Council relied on the expert evidence of B Coddington, the applicant relied on the expert evidence of B Ryan.
2. I understood Council to be pressing two highly related (although for my purposes distinguishable) points. The first is that the subdivision proposal now before me is inconsistent with the concurrence conditions issued by OEH. The Council argued that these concurrence conditions required the retention of all of the medium and high value HBTs, something which is agreed not to occur with the current proposal. The second point is what might be thought of as the consequential impacts of HBT removal on threatened species habitat.
3. The applicant's case in response can be thought of as comprising six essential argument lines, which I outline and consider below, after first introducing the evidence in regard to actual ecological impacts.
4. There is a further issue which arose in both the contentions and was a matter given attention in the proceedings before me more generally. This is the notion of the applicant entering into a biodiversity stewardship agreement (BSA) in relation to the conservation lot. This is not something that is offered by the applicant. While it will be seen to arise in the consideration of final orders, it is my view that the BSA concept is not a primary consideration in this matter before me.

Evidence in regard to potential threatened species habitat impacts

1. The OEH concurrence conditions and the accompanying commentary provides important evidence, in my opinion. It seems clear that there has been considerable deliberation in regard to potential impacts of development on the land occupied by the proposal before me based on the SIS (as revised), the third party review and Council's own evaluative material. There is a finding that rural residential subdivision of the site would not have a significant impact on local populations of the Eastern Pygmy-possum or the Powerful Owl. The concern is that there would "still be impacts to threatened species including the Glossy Black-Cockatoo, Yellow-bellied Glider and threatened microbats from loss of hollow-bearing trees and foraging habitat" (see [6]). A strategy to "reduce" these impacts was determined and can be understood to be documented in the concurrence conditions (if not already referenced in consent conditions by way of OEH reference to Council's draft determination).
2. The interpretation of the wording of the consent conditions is a matter that I need to consider in detail when addressing the applicant's arguments. But suffice to say here that Mr Coddington argued that the concurrence conditions required the retention of all of the medium and high value HBTs on the site as a requirement of any subdivision consent. To not do so would bring about "an unacceptable adverse impact on the natural environment, particularly threatened species habitat" (Ex 11 par 9).
3. Mr Ryan highlighted the changes over time to the proposal concerned with minimising loss of medium and high value HBTs. He also thought it critical, when considering biodiversity impacts, to consider the "whole context of the subdivision and the overall environmental outcome" and the "mitigation and amelioration measures already in place". A series of factors were listed including in relation to conservation of Powerful Owl and Eastern Pygmy Possum habitat, fencing, weed and pest management, biodiversity monitoring since 2014 (Ex 11 par 23). Mr Ryan also highlighted the scale of the area of land associated with the conservation lot (some 20.9 hectares (ha) in area, some 43% of the original parcel) (Ex 11 par 22) and management efforts to date to conserve and rehabilitate it.
4. I can note here a little imprecision in my understanding of how many medium and high value HBTs would actually be lost with the proposal. At this point, I can also introduce the naming system in regard to the staging of the overall development which was adopted by the parties in the proceedings (which was clear but differed a little in regard to the naming system adopted over time). Essentially, as I understand the naming system adopted by the parties, "Stage 1" comprises the subdivision which became operational with Council's 2013 consent, including the subsequent modifications. "Stage 2" and "Stage 3" concern the subdivision before me, here: Stage 2 comprises the more western area and Stage 3 the more eastern area. They are separated by the conservation lot.
5. In regard to the medium and high value HBTs which would be lost with the proposal before me, finally in these proceedings, firstly I note Council's Contention 2(h) (Ex 1 p 9) indicated that the applicant's then tree retention plan shows the removal of 27 medium and high value HBTs across Stages 2 and 3; sourcing OMVI's Biodiversity Update Report of May 2024 (Ex G Tab 4 final two pages). I note that the applicant indicated a prospective loss of 26 medium and high value HBTs (Applicant's Outline of Submission (AOS) par 11 and Tcpt, 26 September 2024, p 170(27)). However, I think that this number may not take account of the supplementary expert ecology report (Ex 11), which found that with certain amendments to the proposal and the re-evaluation of certain of the HBTs associated with the August 2024 plans, the net equivalent of a further six medium and high value HBTs would be retained. I have assumed that something in the order of 20 medium and high value HBTs would be lost with the proposal now before me.

Applicant's submissions on interpretation of concurrence conditions

1. As indicated above, I can distil the applicant's submissions in response to the key issues in contention by Council into six topics. I deal with these in turn below.

Proper interpretation of concurrence conditions would not require retention of all medium and high value HBTs

1. According to the applicant, concurrence conditions "only required the EMP to show how such tree retention would occur during the pre-construction, identification and maintenance phase of the development … (there) was no requirement to show in the EMP all HBT's to be retained in the residential lots and the road reserves" (AOS par 7). Council argues that the OEH concurrence conditions require retention of medium and high value HBTs in the residential blocks.
2. While there were (necessary) references to the condition numbering system associated with the consent for Stage 1 in the proceedings (2013 consent), when considering this application for the grant of a further development consent (applying to Stages 2 and 3), it is both practical and appropriate for me to refer directly to the OEH concurrence documentation cited at [6]-[10].
3. Firstly, I turn to the text itself, which should be at the centre of this question of interpretation. The relevant wording is part of the OEH's "Condition 3". Condition 3 is, I note, concerned with the redrafting of conditions in Council's draft determination, but the text is discrete in its terms (in the sense of having a capacity to be understood alone). Condition 3.1 (as reproduced at [8]) is concerned with the preparation of a tree/vegetation retention plan which shows the trees (among other things) to be retained. Condition 3.1a), concerned with the detailing of the tree/vegetation retention plan, is explicit in its indication that vegetation, to be retained, includes medium or high habitat trees as identified in Figure 22 of the SIS. I reproduce this figure below. Figure 1 Hollow bearing tree (HBT) species and scores (source: Figure 22 in SIS as reproduced in ROS par 9)
4. The applicant's submissions, as I understand them, are that chapeau provisions at Condition 3.1, and thus affecting the operation of Condition 3.1a) place limitations on which of the medium or high habitat trees as identified in Figure 22 of the SIS would need to be captured in the tree/vegetation retention plan under Condition 3.1a), and thus would need to be retained.
5. Firstly, I note that the applicant is inexact in its description of the phrase (which I recognise is predicated by a hyphen) at the centre of interpretive focus. The phrasing referenced by the applicant in some of its submissions is "pre-construction, identification and maintenance phase of the development" (eg AOS par 7). Rather, the applicable phrasing is "pre construction identification & works and maintenance works" (reproduced at [8]).
6. While I accept that the interpretation of the phrasing " - pre construction identification & works and maintenance works"; is not without difficulty, the explanation I think most likely is that this phrasing is attempting to indicate that the tree/vegetation retention plan is concerned with identifying trees and vegetation to be retained across the development's phases (ie (1) "pre construction" preparation efforts, (2) the physical development "works", and (3) post works "maintenance").
7. The works phase can be considered to include both the development engineering works and the housing works, I note that such works have indeed been attempted to be identified in versions of the tree retention plans before the Court (with the identification of potential building areas, on-site effluent management areas and the like). I also recognise, I think, the parties agreed position that subdivision consent conditions do not, of themselves, bind a future development application for, say, housing development on one of the lots created: Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59 at [43].
8. The explanation for reference in Subcondition 3.1a)(iii) of the concurrence conditions (reproduced at [8]) to "(all) trees located within the road reserve, except those trees to be removed for road construction and other services and safety reasons"; opens the door to removal of medium and high value HBTs required to be removed for road construction.
9. While I think the text is readily interpretable (as indicated above), if I step behind the text to the concurrence report, there is nothing there that persuades me other than the conclusion I draw above. The consideration of threatened species issues is documented in the concurrence report. There is documented interest, in the retention, "in particular", of medium and high habitat trees within the residential lots. This is as a means of "(maintaining) a proportion of viable habitat" for threatened species including the Glossy Black-Cockatoo, Yellow-bellied Glider and threatened microbats (refer second half of quotation at [6]). That is to say, while there would be still an impact associated with other habitat loss, retention of the medium and high value HBTs would maintain a proportion of viable habitat. There is a clear line of sight between this interest of OEH (documented in the concurrence report) and the text in the concurrence conditions indicating that the vegetation to be retained (and identified in the tree/vegetation retention plan) includes: "(i) all hollow bearing trees identified in the SIS prepared by Omvi as of medium or high habitat tree class as indicated in Figure 22 of the SIS…"
10. The interest in retaining low habitat trees "where possible" is also identified.
11. The applicant's interpretation of the condition does not provide an adequate response to the OEH clear interest in retention of medium and high HBTs in residential lots, as documented in the report accompanying the concurrence conditions.
12. In all of the circumstances, I am more convinced of Council's interpretation of the OEH concurrence conditions with respect to retention of medium and high value HBTs.

Even if concurrence conditions required retention of all medium and high value HBTs, this was never expected or possible

1. The applicant drew attention to Stage 1 where, notwithstanding the OEH concurrence provisions, numerous medium and high value HBTs had been removed during the works stage, including with Council approval of individual house plans. For example, attention was drawn to "clusters of HBTs located within approved residential lots making it unlikely that a house can be constructed without removal of HBTs" (AOS par 10).
2. Generally, there are significantly fewer high and medium HBTs indicated for the Stage 1 development, when compared with Stages 2 and 3, and certainly the conservation lot (readily evident from Figure 22 to the SIS and reproduced at Figure 1 above). But I do note the Figure 22 drawings indication of a cluster of high and medium HBTs at the north-western sector of the Stage 1 development. I can agree with the applicant that one of these parcels (at the north-eastern corner of this north-western sector) would have particular difficulty in locating a house pad. However, that is not to say this would be impossible, with responsively sensitive design.
3. I do not think these submissions of the applicant have convinced me other than the concurrence conditions should be taken at face value. On this point, I see the applicant as looking for an interpretation at odds with the text of the condition, itself. In terms of, perhaps, applicable background, OEH makes clear that it has undertaken a disciplined analysis prior to establishing its concurrence provisions and drawn conclusions on how land development within this site should respond to threatened species habitat concerns. Certain of the habitat can be lost but high and medium HBTs need to be retained (unless they are related to the road construction). I do not see decisions of Council, or another certifying authority, for housing-related development, relating to Stage 1 as being useful in my interpretation of the intentions of the original concurrence conditions.

OEH had indicated a willingness to reconsider recurrence conditions in acknowledgement of implementation difficulties

1. The applicant referred to OEH correspondence suggested to indicate a willingness on the part of OEH (or now described as the Biodiversity and Conservation Division of the Department of Planning and Environment, henceforth BCD) to reconsider the concurrence conditions (dated 11 March 2021 and 7 April 2022 (Ex 3 pp 1333-1334 and pp 1335-1336, respectively)). This indication of flexibility was argued to be in acknowledgement of the difficulty of implementation of those conditions, including in association with the changes to either habitat values or condition of specific trees since the SIS was prepared in 2013. The applicant also argued that since this correspondence there had been further changes which provided for retention of some further medium to high value HBTs, concerning which there has been no feedback from BCD.
2. Having reviewed this correspondence, I did not see BCD as departing from the original concurrence conditions, per se. This was made clear for example in the correspondence dated 7 April 2022, were BCD indicated: "It is important the proponent assists the process by 'demonstrating that impacts to biodiversity are not inconsistent with the original concurrence'".
3. The standout aspect of the correspondence referred to by the applicant and the small bundle of correspondence added to Ex 3 (Tcpt, 26 September 2024, p 113 (44)), related to a suggested BSA. A letter from BCD had indicated prospects for a formal amendment to the concurrence conditions, albeit while seeking to "(ensure) the best conservation outcomes for the site" and involving a BSA (Ex 3 p 134). A letter from Southbank Land Pty Ltd & Huntingdale Developments Pty Ltd dated 31 March 2022, suggested that such a pathway was some little way advanced (seventh and eighth pages of the small bundle of correspondence attached to Ex 3). A letter from M Saxon of BCD (undated, but linked to an email dated 18 May 2022) also infers a BSA may be in-train.
4. I think I understand the applicant to here be arguing that there was an OEH/BCD recognition of the applicant's difficulties, in retaining all of the medium and high value HBTs, while securing, essentially, the subdivision yield it sought to achieve. The applicant's argument might suggest this recognition of difficulty would sway the Court to the view that today, including with the most recent amendments, BCD or its equivalent would be satisfied with the loss of in the vicinity of 20 additional medium and high value HBTs. I reject this line of argument. My interpretation of the correspondence is that a BSA was a fundamental factor in any substantive softening of the position requiring compliance with the original concurrence conditions. The BCD's linking of a (conservation lot-related) BSA to this consideration of habitat loss in Stages 2 and 3 was not in my view unreasonable given the evidence of improved biodiversity outcomes overall falling from the more rigorous conservation management system associated with BSAs.

No need for the Court to require an outcome in accordance with OEH concurrence conditions

1. This point of the applicant is clearly correct. There can be no dispute that under s 8.14(3)(b) of the EPA Act, the powers of the Court in respect to appeals in a case where the concurrence has been granted, the Court, in determining an appeal, may "vary or revoke" any concurrence conditions imposed by in this case OEH.

Site zoning warrants recognition

1. The applicant highlighted the "basal proposition" that the land is zoned for residential development and has been so zoned for a long period of time. A link was drawn to the findings of Preston CJ in Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 (Goldcoral) at [25] where it was found that this should be given weight in determining the development application. The applicant also cited BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 (BGP Properties), where I note that among other things it was found that (at 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."
2. I generally accept these points. Site zoning warrants considerable weight. I do note the findings in BGP Properties to reference the need for a project to result in "acceptable environmental impacts", something acknowledged by the applicant (AOS par 4). I also note that Goldcoral happened to be referring to a situation where land was identified as an urban growth area to meet demand for residential development at Evans Head. I don't recall any particular evidence or submissions to suggest this land was playing a role in regard to identified urban growth planning. It can be understood that the site can assist in meeting demand for larger lot or rural residential style living.

When considering the zoning of the site and the positive outcome associated with the conservation lot, together, the proposal warrants conditional consent

1. I interpreted the applicant to be arguing three major points here. The first was that if the concurrence conditions were enforced this was tantamount to a refusal of the balance of the proposed development. There was no evidence provided to support this argument. For example, it was not shown that it was impossible or impractical to redesign the proposed subdivision as Mr Coddington suggested in evidence was necessary to achieve compliance with the concurrence conditions. This would decrease the number of future lots.
2. The second point was that the Court should take a practical approach to the prospective likelihood that HBTs will be removed on future lots (with the detailed house block designs) and that "such an outcome will achieve the overall balance sought by the Department in its concurrence" (AOS par 14). My understanding is that OEH/BCD were not happy with the result of the Stage 1 development and the loss of additional medium and high value HBTs. On the material before me what OEH/BCD and Council is seeking to achieve with the detailed schemas for housing lots (house pads, effluent management areas, area protection zones and a consciousness of gradients), is the actual retention of the medium and high value HBTs. The fact that "practicalities" prevented this occurring with Stage 1 should not predicate Stages 2 and 3. Setting aside any BSA, what Council and OEH/BCD would be satisfied with, it seems to me, is a subdivision and development layout which can practically deliver on the retention of the medium and high value HBTs which has been sought from the original consent. Were there to have been an assumption (eg on the part of OEH or Council) that many more of the medium and high value HBTs were to be lost in the housing development, the OEH concurrence provisions (or determination) may have been different.
3. The third point raised by the applicant to support the view that the zoning of the site and the positive outcome associated with the conservation lot, together, should make for a positive outcome goes to the question of balancing different evaluative factors. This seems to me to be the hub of the decision before me. I will deal with it in the next section.

Whether, on balance, the zoning and provision of a conservation lot, justifies the grant of consent

1. Ecological or indeed threatened species habitat concerns are not the only evaluative factor in development application assessment. I believe, the applicant is asking me to give considerable weight to the site's Zone No 2 (a3) Residential A3 zone under Shoalhaven Local Environmental Plan 1985 (SLEP). The single objective of the Residential A3 zone is as follows (Ex 3 p 3): "The objectives are to provide for a low density residential environment with a minimum allotment size of 4000 square metres primarily for detached housing."
2. The fact of the intended conservation lot (currently maintained by the applicant and), its management subject to an approved conservation management plan, also warrants considerable weight, according to the applicant.
3. These two considerations, for me, are supportive factors in relation to the proposal which need to be balanced against negative impacts, essentially centred on the implications of the loss of threatened species habitat (in this case for Glossy Black-Cockatoo, Yellow-bellied Glider and threatened microbats (see OEH commentary at [6]).
4. While this proposal does not compare in terms of its complexity with the project at hand in those proceedings, the evaluative process was usefully outlined by Preston CJ in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited (2013) 194 LGERA 347; [2013] NSWLEC 48 (eg at [31]), where it was indicated that: "The exercise of the power … to approve or disapprove the carrying out of the Project requires consideration, weighting and balancing of the environmental, social and economic impacts of the Project. The range of interests affected, the complexity of the issues and the interdependence of the issues, means that decision-making involves a polycentric problem…."
5. In this instance, I can acknowledge the applicant's argument that it has done enough in regard to threatened species concerns and, with a mind to one aspect of the polycentric problem, perhaps related to the zone objective directly, the subdivision should be able to be completed, lots sold and housing built to accommodate families and others in an environment consistent with the zone objectives.
6. When I turn to the threatened species habitat loss aspect of the problem before me, my impression is that there has been a measured and informed analysis of impacts undertaken by then OEH which was reflected in the original concurrence conditions. There has never been any doubt of the requirement to provide for the conservation lot as part of the overall project (eg see concurrence Conditions 1 and 2 at [8]). There has then been a holding fast to the adopted conditions since by BDC, as far as I can tell from the material before me. I do note BCD's foray into the territory of a BSA to seek a way for a win-win outcome. This seems entirely understandable, if it is the overall biodiversity outcome that is of concern, given acknowledged difficulties with management of legacy conservation lots, without the rigour of the BSA approach. More generally, it is clear that the proposal does not provide for a maintain or improve outcome in regard to habitat for threatened species including the Glossy Black-Cockatoo, Yellow-bellied Glider and threatened microbats.
7. The Council's position, in my interpretation, essentially reflects this considered position adopted by OEH/BDC. It might also be said that this position of OEH/BDC is mindful of the evaluative work of Council.
8. I do acknowledge there has been some redesign of the proposal already which involved loss of a residential lot. However, the statutory scheme applying to the assessment of this application gives considerable weight to threatened species habitat protection, by way of the assignment of concurrence provisions in this instance. I do not see why the provision of the now proposed number of rural residential lots, still at or reasonably near the 4000m2 lot size minimum, outweighs the loss of medium and high HBTs, important to threatened species habitat, which would occur as a consequence of the proposed subdivision. The essence of the zone objective is to provide for "a low density residential environment", the reference to 4000m2 refers to a minimum and there is nothing to suggest all lots in a subdivision need to be near that mark. I think Mr Coddington is correct in his indication that greater design changes, albeit resulting in a significantly reduced lot yield, is necessary in this instance, to reasonably provide for high and medium value HBT retention (Ex 11 par 3). While I am mindful of BGP Properties findings in regard to weight to zoning (see [48]), in this case the current design of the project results in unacceptable environmental impacts.
9. I am also not persuaded by the applicant's argument that the determination of the particular application before me should be influenced by a hypothetical concern about the ultimate delivery of the conservation lot as a distinct parcel of land (AOS par 13). Condition 1 of the concurrence provisions, applying to the Stage 1 development, makes clear the requirement for its creation.
10. It is my opinion that the application before the Court, including having regard to consent conditions proposed by the applicant, does not warrant the grant of consent.

Biodiversity stewardship agreement (BSA) as a response to adverse impacts of the proposal

1. The notion of the application of a BSA in regard to the conservation lot was quite prominent in the evidence and submissions. In these proceedings, the applicant is not offering to enter into a BSA and as indicated at the start of this judgment, this topic has not been a consideration for me in the evaluative findings I have made above. Further, Council's position seems to be that the application should be refused, essentially for reasons consistent with my findings.
2. However, Council also puts that, on the evidence of Mr Coddington, the proposal's deficits could be adequately addressed if the applicant entered into a fully funded BSA before the consent operates (Respondent's Outline of Submission par 49). Council's draft conditions of consent include provision for a deferred commencement condition to this effect.
3. I can note here that I am generally of the view that there would be a practical and legal opportunity for the applicant to enter into a BSA with respect to the conservation lot, were it to be of a mind to. That is to say I am more persuaded by Council's legal arguments than those posited by the applicant in regard to legalities (AOS pars 19-23) and I am mindful of the notional support of BDS in this instance (no small thing in my experience in matters of this kind). The "weighting" associated with the practical commitment to conservation management associated with a BSA is high when overall biodiversity outcomes are in focus. Council seems to be clear in its indication that commitment to a BSA, already, would allow the subdivision to occur with the yield proposed by the applicant.
4. Nonetheless, it seems to me that this should be a matter put forward by the applicant to Council, after due deliberation of its own priorities, rather than imposed upon it, in a sense suppositionally, by the Court by way of deferred commencement conditions of consent.

Conclusion

1. In accordance with the above findings, the appeal should be dismissed.

Orders

1. The Court orders: 1. The appeal is dismissed. 2. SF9821, seeking development consent for subdivision of lot 222 DP 1224712 at Sittella Circuit, Bangalee and associated tree clearing and civil works, is refused. 3. The exhibits are returned, with the exception of Exhibits 1, 16, 17 and A-H which are retained.

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