Byron Property Developments Pty Ltd v Byron Shire Council

Introduction 1 The applicant, Byron Property Developments Pty Ltd seeks consent to construct four detached dwellings, two swimming pools and parking at 51 Shirley Street Byron Bay in accordance with its development application (DA10.2008.387.1) lodged on 20 June 2008. 2 The Council has issued consent to that application on 24 October 2008 but has attached conditions that delete dwelling 4. 3 This is an appeal, pursuant to section 97(1) of the Environmental Planning and Assessment Act 1979, (EPA Act) against the consent specifically the conditions which delete dwelling 4. 4 The council contends it deleted dwelling 4 because it was to be built in an area which contains vegetation of high conservation value including vegetation which meets the floristic characteristics of one Endangered Ecological Community pursuant to the Threatened Species Conservation Act 1995 Littoral Rainforest in the NSW North Coast, Sydney Basin and South East Corner Bioregions (EEC) and two threatened species pursuant to the Threatened Species Conservation Act 1995 (TSC Act) being: 1. Three Macadamia tetraphylla (Rough-shelled Bush Nut) trees; 2 Two Syzgium moorei (Durobby) trees 5 The council's contentions are: "1.Approval of this proposed development including dwelling 4 (as originally lodged) will have unacceptable environmental impacts in terms of vegetation removal. 2.Alternatlively, insufficient information has been provided to adequately assess the impacts from the proposed vegetation removal necessary to accommodate proposed dwelling 4 and therefore that component of the proposed development should not be approved." 6 The applicant contends on its evidence, including an assessment under section 5A of the EPA Act 1979 (a seven part test) in respect of the threatened species and EEC there is no unacceptable environmental impacts in terms of vegetation removal caused by dwelling 4 and it should be approved. 7 To determine the contentions I must assess the impacts of the removal of vegetation to accommodate dwelling 4 and make a determination under section 5A of the EPA Act 1979 as to whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats before dealing with the section 79C considerations 8 For the reasons detailed below, I find that the applicant has not provided sufficient information to enable me to make the determination as required by section 5A(1) of the EPA Act 1979 therefore I cannot approve dwelling 4. 9 However, dwelling 4 is the only issue that council has raised in respect of this development appeal and council submits that its evidence supports an approval of 3 dwellings subject to conditions. Having had the opportunity of a view of the site and having considered the merits of the application I am satisfied on the evidence that the development application should be approved for the 3 dwellings consistent with the consent issued by council on 24 October 2009 subject to any amendment of the conditions to reflect my findings. Threshold Question - seven part test 10 I will deal with the threshold question under section 5A(1) in respect of one of the threatened species the Durobby (Syzgium moorei) because there is no dispute between the parties about the necessity to carry out a seven part test in respect of this threatened species listed as Vulnerable in Schedule 2 of the Threatened Species Conservation Act 1995. 11 Section 5A(1) of the EPA Act provides a link between the Threatened Species Conservation Act 1995 and the assessment of a development application under section 79C of the EPA Act 12 The section is a mandatory provision that requires the determination of a fact. In determining that fact I must take into account the factors prescribed in 5A(2) of the EPA Act to determine "…whether there is likely to be a significant effect on the threatened species, populations or ecological communities or their habitats." The section creates a jurisdictional threshold to any consideration of the merits of the approval of dwelling 4 in this development application appeal. 13 To enable me to make that determination I am reliant on the information that the applicant submits in respect of each factor in section 5A(2). To assist me with the ecological evidence the parties rely on the evidence of Ms Silver of GeoLINK and Mr Parker for the applicant and Ms Matthes for the council. 14 The council contends that the applicant has not provided sufficient information to address the factors in section 5A(2) and as a consequence I am unable to answer the question in section 5A(1). 15 This raises a question as to whether the seven-part test relied upon in respect of the Durobby is adequate? And if not, that is the end of the merit assessment for dwelling 4. 16 Ms Silver of GeoLINK prepared the ecological assessment report lodged with the development application that is exhibit 3 in the proceeding and the seven part test for the Duroby (and the EEC Littoral Rainforest and the Syzgium moorei ) at annexure D of exhibit 3. 17 The methodology she adopts for her ecological assessment is recorded at 2.1 and 2.2 of exhibit 3. She relies on database searches from DECC and the Department of Environment Protection and Biodiversity and conducted field surveys of the site totalling eight hours. She attended the site on four separate occasions (11 July, 3 August, 5 October and 10 January 2008.) 18 She records that her field survey approach focuses on flora surveys and habitat assessments within the site. 19 Ms Silver did not attend the hearing so there was no opportunity to test the rigour of her investigations and the basis of her conclusions. 20 The applicant retained Mr Parker to give evidence at the hearing in respect of the ecological issues. Mr Parker, however, did not conduct an independent seven-part test or prepare an ecological assessment report for the site. But he did participate in the joint report prepared with Ms Matters and filed in the appeal exhibit G. 21 Mr Parker's late entry into the matter was of concern to the council. On hearing that he was retained and briefed about 2 weeks prior to the hearing and had spent only 1 and half hours onsite they submitted that his evidence should be given little weight. 22 Mr Parker only relied on parts of Ms Silver ecological assessment but adopted her seven-part test for the Durobby. Much of the hearing was spent identifying which parts of exhibit 3 he adopted and which parts he disavowed. 23 There is no doubt that the late entry of Mr Parker and his rejection of large slabs of Ms Silver's ecological assessment not only undermines the integrity of Ms Silver's report and assessment but makes it difficult to assess the reliability and rigour of his own evidence. 24 Mr Parker could not explain the detail of Ms Silver's investigation or her understanding of the requirements of the seven part test. He had no idea what she considered to be a "viable local population" or "habitat", At best he expressed his opinion of what was an appropriate definition for a seven part test but he did not do the seven part test which he adopted. 25 What is clear on the evidence is that the applicant's ecologists limited their physical investigation of the ecological issues to the boundaries of the site, data base searches and local knowledge. Ms Matthes is very critical of the ecological assessment being restricted to the cadastral boundary of the site, which is what the applicant's experts did, because in her view such a restriction precludes a proper seven part test. 26 In her view it is necessary to investigate beyond the site and in the case at hand have regard to the vegetation in the regenerating EEC on the road reserve and the KIAH site and the Durobby at the rear of 49 Shirley Street. The applicant's experts did not do this and on that basis her evidence is that the seven part test is flawed. 27 Because of the limited assessment undertaken by the applicant's consultants the Council invites me to attribute little weight to their conclusions. 28 Ms Matthes who prepared the joint report with Mr Parker gave evidence that demonstrated she has an in-depth understanding of the site and surrounding area and the relevant planning controls, no doubt assisted by the fact that she has been involved with this matter from the lodgement of the development applicant. The court has the benefit of her ecological assessment reports to council that support the deletion of dwelling 4. She was also involved in the preparation of the conditions of its consent issued by council on the 24th of October 2008 and she addresses those conditions, which are raised by the contentions in her joint report comprehensively in exhibit G. 29 Ms Matthes's evidence is not only critical of the applicant's seven part test because of the limited investigation it is based on but also because of the factual errors recorded by Ms Silver's in her report exhibit 3. 30 The court was taken to page 38 of the joint report where she lists the errors and deficiencies in Ms Silver's ecological assessment. Her evidence is not contradicted by Mr Parker and perhaps that explains why he rejects many parts of Ms Silver's ecological assessment in Exhibit 3 31 It is significant that Ms Silver incorrectly recorded the species on the site and this required Ms Mattes and Mr Parker to prepare a list of species, which was ultimately tendered. The rigour of Ms Silver's assessment process and survey is questionable given the number of errors Ms Matthes and Mr Parker identified in her evidence during the hearing. 32 I set out below section 5A of the EPA Act (the seven part test) and will now deal with Ms silver assessment (adopted by Mr Parker as amended) in respect of the Durroby Significant effect on threatened species, populations or ecological communities, or their habitats 5A(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