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[2007] NSWLEC 121
Land and Environment Court (NSW)
2007-07-01
Jagot J
Original judgment source is linked above.
The applicant has submitted further information for Council's Engineers in relation to the level of fill over the residue lot and given the proposed 1% grade the impacts of fill on the Kingscliff Creek catchment area no longer considered to be significant.
Council's Engineers are satisfied that this aspect of the application can be conditioned. (p 10)
14 The Council resolved as follows: RESOLVED that Council:
15 On 17 December 2004, a notice of final determination amending Pt 3 of Sch 1 to the Threatened Species Conservation Act 1995 was published in the NSW Government Gazette. The amendment inserted into Pt 3 (the identification of endangered ecological communities) the "Swamp Oak Floodplain Forest of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions (as described in the final determination of the Scientific Committee to list the ecological community)" (Swamp Oak Floodplain Forest). It was agreed between the expert ecologists who gave evidence in these proceedings (Dr Stephen Phillips and Mr Peter Parker) that lot 121 contained this endangered ecological community.
16 On 20 December 2004, another planning consultant, Mr Darryl Anderson, wrote to the Council on behalf of Geographe Point, apparently with respect to advice from the Rural Fire Service that it would not grant a bushfire safety authority for the proposed subdivision as it did not comply with asset protection zone requirements (s 100B of the Rural Fires Act 1997). This submission said: Thank you for your letter of 8 December 2004 and attached correspondence from the Rural Fire Service dated 24 November 2004 advising that the service is not prepared to grant a Bushfire Safety Authority on the grounds that asset protection zones were non compliant.
We further note that the Rural Fire Service is prepared to review its decision if there is a proposal to remove the vegetation located within the residual lot and a Fuel Management Plan is submitted.
As indicated in the development application, it is proposed to clear Lot 121, fill that lot for the purposes of drainage and establish a car park on that lot. However, the clearing work cannot be done until development consent is first issued by Tweed Shire Council. Because the development is "integrated development" under the Act, Council cannot issue a consent to authorise the subdivision and clearing until such time as the Rural Fire Service issues its general terms of approval under Section 100B of the Rural Fires Act 1997.
Clearly, the applicant is placed in an impossible position in that it cannot clear the land because Council cannot grant consent, yet the Rural Fire Service is insisting on the residue land being cleared before they will consider issuing general terms of approval.
In the circumstances, we request Council to urgently advise the Rural Fire Service what is proposed in relation to Lot 1 and request them to issue their general terms of approval subject to conditions in the following general terms:
17 This correspondence attached a bushfire hazard assessment carried out by Mr Anderson's firm. That assessment referred to two application plans dated August 2004 and said "clearing of the whole site is proposed together with earthworks to fill the site to the required levels and achieve suitable drainage". It identified that "no threatened species occur on the site and Tweed Shire Council has raised no objection to the proposal in relation to threatened species issues". It also noted that residue lot 1 would be cleared and grassed.
18 On 13 January 2005, officers of the Council signed a "delegated authority development application report" under a recommendation that the development application "be approved subject to the attached conditions". One officer was identified as the "assessing officer" and another as the "determining officer". The report identified the proposed development as a 6 lot subdivision of lot 121 (having an area of 9662 sqm). A document headed "Assessment under section 79C(1) of the Environmental Planning & Assessment Act, 1979" appears on the Council's file, which I infer formed part of the delegated authority development application report. This assessment is divided into sections reflecting the provisions of s 79C(1)(a) to (e) of the EPA Act.
19 In section "(a)(iii) any development control plan", a cross appears next to "DCP No 5 Development of Flood Liable Land". In the comments to that section, the assessment said that "the current level of the land is approximately 1.0m AHD and it is proposed to fill the land to 1.61m AHD being the centreline level of Chinderah Bay Drive".
20 In section "(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", a prompt reads as follows: (Provided below is a list of matters to be used as a guide in assessing the impacts of the development. Tick the significant matters relevant to the application and provide comments below. This list is not inclusive and any other matters relevant to the application should also be listed and assessed. Matters not ticked are considered satisfactory in terms of the application).
21 None of the boxes are ticked (or crossed) in this section. The available boxes include one relating to "flora and fauna". A comment appears below that section as follows: Impacts from Fill and Earthworks on Kingscliff Creek
The applicant has submitted further information for Council's Engineers in relation to the level of fill over the residue lot and given the proposed 1% grade the impacts of fill on the Kingscliff Creek catchment are no longer considered to be significant.
Council's Engineers are satisfied that this aspect of the application can be conditioned.
22 In section "(c) the suitability of the site for the development", the prompt is the same as for section (b) except that the words "suitability of the site for the development" instead of "impacts of the development" appear. None of the boxes are ticked (or crossed) in this section. The available boxes include one relating to "flora and fauna". Comments are set out below that section about flooding and bushfire. The bushfire comment is to the effect that the Rural Fire Service had granted its general terms of approval for the development on 10 January 2005, subject to a condition requiring all areas of the residue lot (lot 1) to be maintained as an outer protection area in accordance with Planning for Bushfire Protection 2001.
23 Immediately before an appendix, a statement as follows appears: Consideration of Section 5A of the Environmental Planning & Assessment Act, 1979
Having considered the eight points listed in Section 5A of the Environmental Planning & Assessment Act, 1979, it is considered the proposal - Will Not - (Will/Will Not) not have a significant effect on threatened species, populations or ecological communities, or their habitat.
24 The appendix to the assessment report is a "list of useful documents relevant to assessment under" s 79C(1) of the EPA Act. Thr list includes a reference to the Tweed Vegetation Management Plan 1999.
25 On 18 January 2005, the Council issued the development consent (DA 03/1038) relating to lot 121 for a 6 lot subdivision, subject to conditions. Relevant conditions include: GENERAL
26 The plan referred to in condition 1, bearing the Council's stamp, shows lot 121 subdivided into 6 lots. Proposed lots 2 to 6 adjoin the reserve of Chinderah Bay Drive. The plan shows a right of carriageway of variable width from River Street along the rear of the lots. The residue lot 1 is 6986 sqm. The reference to the plan "Blueland Engineers Figure No. 4.0 (September 2004)" in condition 12 accords with the plan lodged on 6 September 2004.
27 On 1 February 2005, under s 101 of the EPA Act, the Council gave public notice of the grant of the development consent in the Tweed Link, a Council publication delivered to all households in the area.
28 The Council's file contains a document from Blueland engineers dated 5 August 2005 headed "soil and water management plan". That document states that, "where practical, thinning of plant growth in the subdivision should be by hand or approved small machine".
29 Some time before 6 December 2005, Geographe Point lodged a construction certificate application for the development. On 6 December, Blueland engineers submitted an amended plan for bulk earthworks. The letter said that the plan had been amended so that the spot levels and grade concurred with the September 2004 plan (figure 4.0). On 20 December 2005, the Council advised Blueland engineers that the plan was not supported and that the layout was to comply with the September 2004 plan (figure 4.0), as specified in condition 5 of the development consent (in fact, condition 12). Blueland engineers lodged a sketch on 25 January 2006, following a meeting with Council officers, described as "our interpretation of the earthworks indicated as acceptable by council officers". The letter described the sketch as including a note that "vegetation outside of fill toe to be retained with minor drainage works to low areas as required". A handwritten note appears on the 25 January letter to the effect that the filling drawing was adequate. Blueland engineers submitted amended engineering drawings on 10 February 2006. A handwritten note appears on the 10 February letter - "noted drawings not revised as per discussion. Note required on plans 'Vegetation retained in this area, with minor localised drains to prevent flooding 15/2/06'". Blueland engineers submitted another amended set of engineering plans on 28 February 2006 under cover of a letter stating that "plan 205009-06E has been revised to include a note about vegetation retention and minor drains through the residual lot area outside of earthworks lines as discussed…". A handwritten note appears on the 28 February letter - "Noted…8/3/06 all OK to be released".
30 On 8 March 2006, the Council issued to Geographe Point a construction certificate (CC 05/1084) certifying that, with respect to the development consent, work completed in accordance with nominated construction certificate plans would comply with the requirements of the EPA Regulation as referred to in s 81A(5) of the EPA Act. One of those nominated plans is headed "bulk earthworks and sediment and erosion control plan". It shows fill extending across proposed lots 2 to 6, the right of carriageway and part of residue lot 1. The fill levels shown vary (for example, a level of "+2.20" appears at the crest of a batter for the right of carriageway, as does a level of "1.00" at the rear north-east corner of the fill on residue lot 1). The plan contains notes relating to the earthworks and erosion control. Those notes include statements that the fill areas are to be stripped of topsoil and organic matter and that, immediately after completion of filling/regrading works, all topsoil is to be "respread and the site grassed". A two metre spoon drain extends along most of the southern boundary. Another of the nominated plans (plan 205009-06E) is headed "drainage layout plan and spoon drain details". This plan shows an outline of the same filled area. A note appears outside this filled area - "vegetation retained in this area, with minor localised drains to prevent ponding".
31 On or about 16 to 17 October 2006, Geographe Point caused part of lot 121 to be cleared. A survey plan dated 15 December 2006 shows the "toe of batter setout from Blueland engineers plan 205009-05C", as well as the location of a tree line as surveyed on 14 December 2006. Geographe Point admits that it caused part of lot 121 containing trees and vegetation within the solid grey line to be cleared in October 2006 (that is, to the "toe of batter setout from Blueland engineers plan 205009-05C"). This area of clearing admitted by Geographe Point does not intrude into the area where vegetation is noted to be retained on construction certificate plan 205009-06E.
32 Section 101 provides that: If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.
33 Mr Corowa commenced these proceedings on 2 November 2006, some 19 months after the notice of the grant of the consent under s 101 of the EPA Act. Mr Corowa did not contend that the notice under s 101 was defective. He contended that the notice did not preclude his challenge to the validity of the consent on the grounds alleged.
34 Where a grant of development consent has been notified in accordance with s 101, the section will operate to preclude any challenge to the validity of the consent if three conditions are satisfied (namely, the decision must be a bona fide attempt to exercise the power, must relate to the subject matter of the legislation, and must be reasonably capable of reference to the power given to the decision-maker - R v Hickman and Others; Ex parte Fox and Clinton (1945) 70 CLR 598) and provided that the consent was not granted in breach of an "essential", "imperative" or "inviolable" limit or restraint in the EPA Act. Thus far, the following restraints in the EPA Act have been identified as "essential", "imperative" or "inviolable": - affording a person procedural fairness in accordance with the notification requirements for development applications in the EPA Act, and s 94 of the EPA Act being the exclusive source of power to impose conditions requiring the payment of money or the dedication of land (Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 and Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695. See also Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707).
35 Section 78A(8)(b) provides (in part) that a species impact statement must accompany a development application in respect of development likely to significantly affect threatened species, populations or ecological communities, or their habitats. Section 79C(1) sets out the matters a consent authority must consider in determining a development application, including the likely impacts of the development, including environmental impacts on both the natural and built environments. The role of the Court with respect to both sections is limited to "declaring and enforcing the law which determines the limits and governs the exercise of the repository's power" (Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 36), but the law created by the sections is different. Section 78A(8)(b) raises a threshold question, involving jurisdictional facts (Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55). Accordingly, in declaring and enforcing the law established by s 78A(8)(b), the Court must determine the relevant facts for itself on the evidence before it. Section 79C(1) does not involve jurisdictional facts. With respect to that section, it is "not the function of the court to substitute its own decision for that of the administrator…Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned" (Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-41). Sections 78A(8)(b) and 79C(1) of the EPA Act also cannot be construed in isolation. Those provisions are to be construed, and the potential consequences of breach of them determined, in the context of the whole statutory scheme, including s 101.
36 On the evidence before me I have found below that a species impact statement was not required to accompany the development application (which makes the operation of s 101, at least to this extent, moot). I have also found that the Council failed to consider the presence of the endangered ecological community Swamp Oak Floodplain Forest on lot 121 when it determined the development application, in breach of its obligations under s 79C(1). Given the above, what is the significance of the Council's failure to consider the presence of the endangered ecological community Swamp Oak Floodplain Forest on lot 121?
37 In Rundle v Tweed Shire Council and Another (1989) 68 LGRA 308, Bignold J described s 112 of the EPA Act as carrying with it an implied duty on the part of the determining authority to answer the "threshold question of whether the relevant activity is likely to significantly affect the environment" (at 329-330). Where a determining authority had not done so, Bignold J considered that there would be a breach of the EPA Act to that extent (at 330). The context of these observations was Bignold J's finding that s 112 did not involve any jurisdictional fact, so that the Court could not determine the threshold question for itself (in contrast to the position for s 78A(8)(b)). In Timbarra, Spigelman CJ (with whom, Mason P and Meagher JA agreed) observed that the equivalent provision to s 78A(8)(b): … does not involve, either explicitly or implicitly, the exercise of any statutory power by a consent authority. Section 77 is directed to the making of development applications by applicants, not the making of decisions by a consent authority (at [47]). Later in his reasons Spigelman CJ observed that consent authorities make decisions about jurisdictional facts, including about the equivalent provision to s 78A(8)(b), but that their decisions are not conclusive (at [81] - [87]).
38 The question raised by Bignold J in Rundle about breach of an implied obligation to consider the threshold question did not arise in Timbarra. It was also raised only indirectly in these proceedings, and I did not have the benefit of full submissions about it. My finding that the Council failed to consider the presence of the endangered ecological community on lot 121 means that it could not have discharged any implied obligation to consider the threshold question in s 78A(8)(b). Nevertheless, I consider this issue incapable of affecting the outcome in this matter. First, as I have found that the development application was not required to be accompanied by a species impact statement, there was "fortuitous compliance" with s 78A(8)(b) (a phrase used in Rundle at 328). Secondly, if the Council breached any implied obligation to consider the threshold question in s 78A(8)(b) and the notice under s 101 did not operate with respect to that breach, then the consequences of any such breach still must be determined. It cannot have been a purpose of the statutory scheme that an act done in breach of any such implied obligation would be invalid (applying the test in Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]). As Spigelman CJ observed in Timbarra, the section concerns the making of development applications by applicants for consent. The opinions of the person making the application and consent authority regarding the operation of s 78A(8)(b) with respect to any particular application are not conclusive. The statutory scheme establishes the s 78A(8)(b) matter as a jurisdictional fact - a fact to be determined objectively by the Court on the evidence available to it. The objects of the EPA Act would not be furthered by invalidating consents by reason of breach of any implied obligation; rather, the objects are furthered by recognising that s 78A(8)(b) creates a jurisdictional threshold to any consideration of the merits of an application. If the jurisdictional threshold has in fact been satisfied, then serious inconvenience would result if breach of any implied obligation resulted in invalidity. These factors all indicate that the consequence of breach of any implied obligation under s 78A(8)(b) is not invalidity. Invalidity potentially attaches to breach of the substantive threshold requirement established by s 78A(8)(b), not to breach of any subsidiary implied obligation on the part of the consent authority to form an opinion about that substantive requirement.
39 Section 79C(1) requires a consent authority, in determining a development application, to take into consideration such of the nominated matters as are of relevance to the development. The relevant s 79C(1) matters include "the likely impacts of that development, including environmental impacts on both the natural and built environments" (s 79C(1)(b)) and "the suitability of the site for the development" (s 79C(1)(c)). Although s 79C(1) does not refer to "threatened species, populations or ecological communities, or their habitats" (in contrast to s 90(1)(c3) referred to in Timbarra), impacts on these matters are embraced by s 79C(1), as disclosed by s 5A. The preamble to s 5A refers to s 79C(1), amongst other sections ("For the purposes of this Act and, in particular, in the administration of sections 78A, 79C (1) and 112, the following factors 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…").
40 For the reasons given below, the Council was subject to a duty imposed by s 79C(1)(b) and (c) to consider the presence of the endangered ecological community on lot 121, and the s 5A matters, in the course of determining the development application. I am satisfied that it did not do so. However, the grant of the development consent was notified under s 101 and these proceedings were commenced after the expiry of the period of three months referred to in that section.
41 Mr Corowa's agent submitted that the s 101 notice did not preclude the challenge on this ground because the Council had not acted bona fides and the obligation to consider "threatened species, populations or ecological communities, or their habitats…" as part of the discharge of the Council's obligations under s 79C(1) was an inviolable restraint. I do not accept those submissions. I am satisfied that the Council's failure to consider the presence of the endangered ecological community Swamp Oak Floodplain Forest on lot 121 was an oversight, presumably arising from the fact that the Scientific Committee's determination was made on 17 December 2004, about four weeks before the Council determined the development application, which was lodged in July 2003. An error of that nature does not support an allegation of lack of bona fides on the part of the Council. None of the other evidence causes me to draw any such inference against the Council (O'Toole v Charles David Proprietary Limited (1990) 171 CLR 232 at 249 and R v Murray and Others; Ex Parte Proctor and Others (1949) 77 CLR 387 at 400). The Council's decision to grant the development consent also satisfied the other Hickman provisos. The grant of the consent related to the subject matter of the EPA Act and was reasonably capable of reference to the power given to the Council - namely, the power to determine the development application in s 80(1).
42 Further, in my view, the failure to consider the presence of the endangered ecological community Swamp Oak Floodplain Forest on lot 121 did not involve the grant of consent in breach of some inviolable restraint in the EPA Act. Section 79C(1) does not concern the power of the consent authority to determine a development application. It nominates matters to be considered by the consent authority in the course of determining the development application. The matters enumerated in s 79C(1) are not exhaustive (Carstens v Pittwater Council (1999) 111 LGERA 1 at [25]). The matters operate at a high level of generality, giving a wide discretion to the consent authority (Pallas Newco at [59]). The presence of the endangered ecological community on lot 121 was a fact that I am satisfied the Council was bound to consider despite the width of the discretion under s 79C(1). Nevertheless, while important, that was one among many potentially important facts the Council had to consider. The weighing of relevant considerations under s 79C(1) was also a matter for the Council. These matters disclose that the obligation imposed by s 79C(1) does not involve an inviolable restraint of the kind considered by the Court of Appeal in Pallas Newco and identified in Lesnewski and Anambah Homes. Earlier decisions of this Court, pre-dating Pallas Newco, did not doubt the operation of a notice under s 101 to prevent challenge on the ground of failure to consider a matter under s 90, the equivalent provision to s 79C(1) (Woolworths Limited and Another v Bathurst City Council and Another (1987) 63 LGRA 55 at 63 and Maule v Liporoni and Another (2002) 122 LGERA 140 at [4]).
43 As Spigelman CJ observed in Pallas Newco (at [75]), s 101 is not an absolute bar to proceedings. A challenge on any ground may be brought within the three month period. This informed the Court's conclusion (confirmed in Lesnewski and Anambah Homes) that, where a consent has been notified in accordance with s 101, the section operates to preclude challenge on all grounds, including jurisdictional error, subject to the Hickman provisos and the breach not being of a requirement "of such significance in the legislative scheme that it constitutes a limitation or requirement that is variously expressed in the authorities as "essential", "indispensable", "imperative" or "inviolable"" (Lesnewski at [76]). For the reasons given above, s 79C(1) does not have such a function in the statutory scheme. To the contrary, the function of s 79C(1) in the statutory scheme indicates that Parliament had that section in mind when it determined to permit consents to be challenged on any ground within the three month period, and to protect consents from uncertainty after that time.
44 The notice under s 101 thus precludes Mr Corowa's challenge to validity of the consent on the ground that the Council failed to consider relevant matters, including the claimed grant of consent in breach of DCP 5. The notice is not relevant to the claims based on the construction certificate or the NPW Act.
45 I turn now to the question of jurisdictional fact under s 78A(8)(b). The relevant date for determining the jurisdictional fact is the date on which the Council determined the development application in January 2005. Section 5A of the EPA Act has since been amended more than once and in material respects, as has the Threatened Species Conservation Act. Unless otherwise indicated, the references to provisions below are to the legislation as in force when the Council determined the development application. D. Species impact statement
46 When the development application was lodged and determined, s 78A(8)(b) of the EPA Act provided that: (8) A development application must be accompanied by: (a)… (b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats - a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.
47 Section 5A of the EPA Act provided that: For the purposes of this Act and, in particular, in the administration of sections 78A, 79C (1) and 112, the following factors 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) in the case of a threatened species, whether the life cycle of the species is likely to be disrupted 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 life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised, (c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed, (d) whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community, (e) whether critical habitat will be affected, (f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region, (g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process, (h) whether any threatened species, population or ecological community is at the limit of its known distribution.
48 Section 4(1) of the EPA Act defined various terms as they appear in s 78A(8)(b) and s 5A by reference to the definitions in (relevantly) the Threatened Species Conservation Act. Section 4(1) of that Act defined "threatened species, populations and ecological communities" to mean species, populations and ecological communities specified in Sch 1 and 2 and "threatened species, population or ecological community" to mean a species, population or ecological community specified in those Schedules. "Habitat" meant "an area or areas occupied, or periodically or occasionally occupied, by a species, population or ecological community and includes any biotic or abiotic component".
49 The Council and Geographe Point submitted that s 78A(8)(b) operated on the making of the development application. As Sch 1 to the Threatened Species Conservation Act was amended by the addition of the relevant endangered ecological community (Swamp Oak Floodplain Forest) on 17 December 2004, more than a year after the development application was lodged, they submitted that s 78A(8)(b) could not require that development application to be accompanied by a species impact statement. They submitted that, if it were otherwise, the amendment to the Threatened Species Conservation Act would have retrospective operation, contrary to s 30 of the Interpretation Act 1987. An applicant thus has a right to have its development application determined irrespective of any amendment to the list of threatened species, populations or ecological communities, and their habitats in the Threatened Species Conservation Act. They submitted that Plumb v Penrith City Council and Anor [2002] NSWLEC 223 supported their approach. In Plumb, Pearlman J said that s 78A(8)(b) related to the instigation of the decision-making process so that "the time for determination of likely significant affect is when the development application is made (cf Helman v Byron Shire Council and Another (1995) 87 LGERA 349 at 358 - 360)".
50 In my view, Helman and Plumb did not decide that s 78A(8)(b) has no work to do where a development application, at the time it is determined, is in respect of development likely to significantly affect threatened species, populations or ecological communities, or their habitats. Nothing in the section suggests to me that it ceases to operate once a development application has been lodged or made. The section is capable of operating at all times between lodgement and determination of a development application. This is consistent with the principle established in Sofi v Wollondilly Shire Council and Another [1975] 2 NSWLR 614. This construction does not give the amendment to Sch 1 to the Threatened Species Conservation Act retrospective operation; rather, the amendment applies prospectively to the pending development application. It also does not offend s 30 of the Interpretation Act. I am unable to discern any matter which would protect an applicant for consent from amendments to the Threatened Species Conservation Act before determination of their development application (in contrast, for example, to the position in The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178, where clause 33 of the instrument had that effect). As Spigelman CJ observed in Currey v Sutherland Shire Council (2003) 129 LGERA 223 at [34], "if the law changes, so can the efficacy of the application". Finally, development applications can be amended at any time before determination. If the consequence of amending the application is to bring it within or place it outside s 78A(8)(b) then, in my view, the section operates in accordance with its terms on and from the amendment, including all consequential requirements for the processing and determination of the application.
51 Accordingly, it is necessary to decide whether the development application, at the time of determination, was in respect of development likely to significantly affect threatened species, populations or ecological communities, or their habitats. As noted, this is a jurisdictional fact that the Court must decide for itself on the evidence before it (Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55 and Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSLWR 707 at [105], [108] and [188]).
52 Consistent with the authorities recited in Oshlack v Richmond River Shire Council and Another (1993) 82 LGERA 222 at 233, "likely" is to be treated as meaning "a real chance or possibility", whereas "significantly" means "important", "notable", "weighty" or "more than ordinary". I also adopt the reasoning of Pearlman J in Plumb (at [37]) that "the eight part test mandated by s 5A is but part of the inquiry" and of Pain J that the inquiry is to be informed by the objects of the Threatened Species Conservation Act and the principles of ecologically sustainable development (BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210 at [54] to [57]).
53 The first question under s 78A(8)(b) must be - what "development" was the development application "in respect of" at the time of determination? In this case, the various amendments to, and material inconsistencies within and between, the documents lodged to support the development application make answering this question surprisingly complex. Moreover, it is apparent that the documents in evidence have been selected from the Council's file. I also infer there were meetings between Geographe Point and/or its consultants and Council officers during which they discussed the development (for example, as contemplated by the Council's resolution of 19 May 2004).
54 The statement of environmental effects and other documents accompanying the development application when lodged do not provide much assistance in seeking to identify the development immediately before determination. For example, the statement of environmental effects described trees as located around the edges of lot 121, with the development supposedly to occur in a mostly cleared area. I cannot reconcile that description with the other evidence, including aerial photographs. The statement of environmental effects referred to the capacity of trees on lot 121 to withstand some fill and thus be retained, but in doing so overlooked the fact that, irrespective of the filling, the application as lodged proposed a car park across most of the residue lot, with only small landscaped areas fringing the car spaces and circulation areas. The statement of environmental effects also referred to and relied upon the engineering impact assessment - a document that, contrary to the representations in the statement of environmental effects, said the site should be cleared of vegetation to within five metres of the extent of earthworks lines. The proposed car park was subsequently deleted, but the right of carriageway, the fill necessary to create it, the associated batters and the drainage works all remained part of the proposed development.
55 Issues also arise with respect to the later correspondence from Mr Anderson claiming the original and then current applications proposed to clear and grass the whole of lot 121, apparently in the context of an issue raised by the Rural Fire Service. I cannot reconcile those representations with the original development application, the plans before the Council at the time it determined the development application on 13 January 2005 or the position of the Rural Fire Service communicated to the Council on 10 January 2005. The development layout plan and earthworks and erosion control plan as referred to in the development consent show the five residential lots fronting Chinderah Bay Drive and the right of carriageway. The plans, read together, show existing contours and proposed finished levels across lot 121. The position of the Rural Fire Service communicated to the Council on 10 January (requiring that the vegetation on lot 121 be maintained as an outer protection area) suggests that, by that time at least, the proposed development did not involve the wholesale clearing of the residue lot.
56 I consider that the "development" which the development application was "in respect of" at the time of determination, in this case, is best identified through the amended plans in fact approved in the consent, which were lodged in August and September 2004. That development involved: (i) a subdivision of lot 121 into five residential lots and one residue lot; (ii) a right of carriageway at the rear of the residential lots, (iii) drainage of the subdivision, including the residue lot, both by filling and by drainage infrastructure such as the spoon drain as shown on figure 4.0 dated September 2004, and (iv) filling the residential lots, the right of carriageway and the residue lot to achieve the levels shown on figure 4.0 dated September 2004. Irrespective of the conflicting statements of intention in the statement of environmental effects and other documents, I am satisfied that this development included the removal of trees and vegetation inconsistent with the four elements of the development I have identified. For example, at best, trees could not be maintained within the right of carriageway or the spoon drain. At worst, the proposed development could have involved removal of all trees and vegetation on lot 121, consistent with Mr Anderson's representations. What does this ambiguity mean for s 78A(8)(b)?
57 Section 78A(8)(b) focuses on the development proposed in the development application. Accordingly, any ameliorative measures proposed in the application are to be taken into account in answering the question under s 78A(8)(b) (Smyth v Nambucca Shire Council and Another (1999) 105 LGERA 65). The same conclusion cannot apply to ameliorative measures that were not proposed in the application, but imposed by the Council as conditions of development consent or as restrictions within construction certificates. Applicants for consent control the identification of the development for which they seek consent. They are responsible for any ambiguity in their own application. Given that fact and the function of s 78A(8)(b) in the statutory scheme, I can see no reason to resolve ambiguity in a development application on the most generous assumption to the applicant for consent. To the contrary, I think that it is appropriate, on the facts of this case, to answer the s 78A(8)(b) question assuming the full potential extent of tree and vegetation removal on lot 121 as represented to the Council by Mr Anderson. Accordingly, the development application at the time of determination was "in respect of" "development" involving the removal of all trees and vegetation from lot 121. According to Mr Parker's estimate (which I accept), there was about 9000 sqm of the endangered ecological community Swamp Oak Floodplain Forest on lot 121 before the clearing by Geographe Point.
58 The notice of final determination of the relevant endangered ecological community (Swamp Oak Floodplain Forest) describes the community as "of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions". The relevant habitat is thus the areas within those bioregions occupied, or periodically or occasionally occupied, by the community. The final determination records that the community is known from about 20 local government areas in the NSW North Coast bioregion, including Tweed. It observes that the area of the community is likely to represent much less than 30% of its original range, with less than 350 ha on the Tweed lowlands in 1985, less than 650 ha on the lower Clarence floodplain in 1982, less than 400 ha on the lower Macleay floodplain in 1983 and less than 3200 ha in the lower Hunter - central Hunter regions in the 1990's. It records an estimate that, by 1985, less than 3% of the original Floodplain Wetlands and Floodplain Forest remained in the Tweed lowlands, with similar estimates likely for the Swamp Oak Floodplain Forests in other parts of the NSW North Coast bioregion. Less than 30-40% was estimated to remain in the lower Hunter - central coast region in the 1990's. The final determination identifies land clearing as a threat to the community with a small minority occurring on public land, these areas being unevenly distributed and unlikely to represent the full diversity of the community. It notes that State Environmental Planning Policy No 14 - Coastal Wetlands protects some areas of the community, although this has not always precluded impacts. Remaining stands are described as severely fragmented, with very few examples remaining unaffected by weeds. Key threatening processes under the Threatened Species Conservation Act are nominated as relevant to this community, including clearing.
59 The Tweed Vegetation Management Strategy shows the site as having a high ecological sensitivity and very high ecological status, with a koala sighting near the south-eastern corner before 1994.
60 Dr Stephen Phillips and Mr Peter Parker gave evidence relevant to the question whether the development had to be accompanied by a species impact statement. I accept they were each qualified to give this evidence.
61 Dr Phillips and Mr Parker both identified the vegetation on lot 121 as the endangered ecological community Swamp Oak Floodplain Forest of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions.
62 Dr Phillips inspected lot 121 in September 2004 for the purpose of a Class 1 appeal then pending in this Court. His main report related to that other development application proposing a car park on the residue lot, but in oral evidence Dr Phillips said that his conclusions were driven by the extent of proposed filling which was common to the applications, not the particular use. By this, I understood that Dr Phillips considered filling generally inconsistent with retaining trees and vegetation. He considered that there was "an obvious need for a species impact statement to be prepared", as the vegetation on the land was the endangered ecological community Swamp Oak Floodplain Forest and remaining stands of this community are threatened as described in the Scientific Committee's final determination. Dr Phillips' also said that the threatened flora and fauna species potentially associated with the vegetation communities on lot 121 required specialised survey techniques and "those with a reasonable probability of potentially occurring on the site" included Scented Acronychia (Acronychia littoralis), Stinking Crytpocarya (Cryptocarya foetida), Mitchell's Rainforest Snail (Thersites mitchellae), Wallum Froglet (Crinia tinnula), Fruit Doves (Ptilinopus), Mangrove Honeyeater (Lichenostomus fasciogularis), Collared Kingfisher (Todiramphus chloris), Large-footed Mouse-eared Bat (Myotis adversus), and Koala (Phascolarctos cinereus).
63 Mr Parker surveyed lot 121 and the Chinderah area in 1994 for the Chinderah local environmental study. He returned to lot 121 in September and October 2006 for the purposes of the Class 1 appeal for the other development application (before the clearing) and subsequently (after the clearing). Mr Parker carried out an assessment under s 5A of the EPA Act as at 18 January 2005, based on his earlier notes and observations. He concluded that the "development application did not require a species impact statement".
64 There are certain difficulties with the evidence of both Dr Phillips and Mr Parker. Dr Phillips's affidavits did not adequately expose his reasoning processes. For an expert report to be useful, it is "necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions" (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59]). Dr Phillips' affidavits did not discharge that prime duty. In particular, his affidavits did not disclose details of his consideration of each of the relevant matters in s 5A of the EPA Act. For example, para 10 of his affidavit of 2 January 2007 is as follows: The NSW Scientific Committees Final Determination states with regard to the Endangered Ecological Community Swamp oak floodplain forest of the NSW North Coast, Sydney Basin and South East Corner Bioregions that it "is likely to become extinct in nature unless the circumstances and factors threatening its survival or evolutionary development cease to operate." Accordingly, I remain of the opinion that a Species Impact Statement should have been carried out before any consideration be given to approve the development.
65 Ecological communities were only eligible to be listed as endangered ecological communities if the Scientific Committee formed the opinion that the community was "likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival cease to operate" or "might already be extinct". The Scientific Committee's opinions for the purposes of s 12 of the Threatened Species Conservation Act, and the facts underlying that opinion, are relevant to but do not exhaust the inquiry required under s 78A(8)(b). If they did, s 78A(8)(b) and s 5A would be unnecessary.
66 Mr Parker disclosed his full reasoning process. In so doing, he disclosed his assumption that the clearing would be limited to 5500 sqm, being the clearing that he estimated was carried out in October 2006, although his assessment, in many respects, addressed the whole of lot 121. Section 78A(8)(b) is not directed to the development authorised by the consent, but the proposed development. As noted, while ameliorative measures proposed as part of that development are to be taken into account, I do not accept that conditions of consent or restrictions imposed on construction certificates can be relevant to s 78A(8)(b). The ambiguity in this development application about the extent of clearing proposed, as explained above, means the s 78A(8)(b) question should be answered recognising that the proposed development may have involved clearing the whole of lot 121.
67 These observations do not mean that the evidence of Dr Phillips and Mr Parker is irrelevant. My task is to determine the s 78A(8)(b) question on the whole of the evidence, including the expert opinions of Dr Phillips and Mr Parker. I turn now to s 5A in its form at the date the Council determined the development application.
68 Section 5A(a) ("in the case of a threatened species, whether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at risk of extinction") was relevant to threatened species, but not the endangered ecological community. Dr Phillips concluded that there was a reasonable probability of certain threatened species potentially occurring on lot 121. Mr Parker considered lot 121 had low fauna habitat value as it was too small and the habitat too degraded to support a local population of any threatened fauna species by reason of poor species richness, paucity of canopy cover and relatively young age of canopy species, absence of old growth and hollow bearing trees, dominance of exotic grasses, and the urban setting. He also found no threatened plant species on lot 121.
69 One difficulty with Mr Corowa's claims about threatened species is that I do not understand that Dr Phillips' evidence suggested a species impact statement was required with respect to these species. Rather, Dr Phillips mentioned these species as part of his general criticism of the flora and fauna survey work carried out. His conclusion that a species impact statement was required depended on the proposed clearing of the endangered ecological community Swamp Oak Floodplain Forest.
70 I accept Mr Parker's evidence that lot 121, by reason of its location, size and degraded state, could not support a local population of any threatened fauna species and generally had low fauna habitat value for the reasons he gave. Evidence of a koala sighting near the south-eastern corner of the lot before 1994 and subsequent anecdotal evidence of sightings referred to by Dr Phillips, or the presence of some koala feed trees on lot 121 (about which, the experts disagreed), does not outweigh these considerations. Nor does the identification of lot 121 as having a high ecological sensitivity and very high ecological status in the Tweed Vegetation Management Strategy. Mr Parker had been familiar with lot 121 for many years (having carried out the flora and fauna work for the Chinderah local environmental study in 1994). He carried out site-specific surveys of lot 121. He identified that the scale of mapping in the strategy was 1:8000, making it difficult for those maps to separate out small sites from larger more valuable areas. I accept Mr Parker's evidence about these matters and that his methodology was suited to the tasks required. Accordingly, I am not satisfied on the evidence that the life cycle of any threatened species was likely to be disrupted such that a viable local population of the species was likely to be placed at risk of extinction by reason of the clearing of the remaining vegetation and trees on lot 121 (that is, about 9000 sqm of the endangered ecological community Swamp Oak Floodplain Forest). To the contrary, I consider that the evidence I have accepted discloses that the proposed development involved no such possibility.
71 I accept Mr Parker's evidence that s 5A(b) ("in the case of an endangered population, whether the life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised") was not relevant as no such populations occurred in the vicinity of lot 121. Dr Phillips did not suggest to the contrary and examination of the list of endangered populations in Pt 2 of Sch 1 to the Threatened Species Conservation Act supports Mr Parker's evidence.
72 Section 5A(c) ("in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed") was relevant. I accept that lot 121 was part of an area of known habitat within the meaning of this provision, as the existence of the community in the Tweed area is mentioned in the final determination. Mr Parker may have placed too much weight on the weedy and degraded nature of the vegetation on lot 121 in his assessment, as the final determination says very few examples of the community remain unaffected by weeds. Nevertheless, I agree with Mr Parker that s 5A(c) focused on the significance of the area of known habitat (to be modified or removed) in relation to the regional distribution of that habitat. I also accept that lot 121 was degraded for the reasons given by Mr Parker, given its urban setting, edge effects and weed infestation.
73 The concept of significance in s 5A(c) was thus relative to the regional distribution of the community, with that relativity involving both quantitative and qualitative aspects. Even allowing for impacts on the community after the dates that appear in the final determination, 9000 sqm of the community was negligible in the context of its distribution throughout the North Coast bioregion (an area of about 5.6 million ha). Moreover, this area of the community adjoined Chinderah Bay Drive (which fronts the river) and thus was at the end of the more densely vegetated area, and was degraded for the reasons given by Mr Parker. While undoubtedly habitat for the community, the location, size and surrounds of lot 121 must be taken into account in assessing the likely significance of impacts on the community and its habitat. I infer Dr Phillips considered that a significant area of known habitat was to be modified or removed by the proposed development. As Dr Phillips' evidence did not adequately disclose his reasoning process, it is difficult to give weight to his conclusions, particularly given my acceptance that the significance of the area of known habitat should be assessed under s 5A(c) in the context of the region and of Mr Parker's assessment of the quality and overall context of the community on lot 121. Accordingly, I am not satisfied on the evidence that in relation to the regional distribution of the habitat of a threatened species, population or ecological community, a significant area of known habitat was to be modified or removed. To the contrary, I do not consider lot 121 to have been a "significant area" of known habitat in the context of s 5A(c).
74 Section 5A(d) ("whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community") was relevant to both threatened species and endangered ecological communities. Given the location of lot 121 (that is, at the end of the swathe of vegetation following and around the creek line), I am satisfied that no area of known habitat was likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community. I accept Mr Parker's evidence in this regard.
75 Section 5A(e) ("whether critical habitat will be affected") was immaterial. Mr Parker's said that the area proposed for development did not include any critical habitat. Dr Phillips did not suggest to the contrary.
76 Section 5A(f) ("whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region") was relevant. Mr Parker concluded that the Swamp Oak Floodplain Forest was adequately represented in conservation reserves given the extent of the bioregion. He referred to the community being commonly represented in wetland areas, and thus protected by SEPP 14. Dr Philips noted that the final determination identified much less than 30% of the original extent of the community remained in New South Wales.
77 I find it difficult to reconcile s 5A(f) with the criteria for listing in s 12 of the Threatened Species Conservation Act. The criteria for the listing of endangered ecological communities were that the community was likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival cease to operate or might already be extinct. If the community were adequately represented in conservation reserves, then (presumably) it would not have satisfied the criteria for listing. Be that as it may, I accept Mr Parker's evidence about the relevance to this consideration of the extent of the region, the extent of the community along the coast within that region (including at Ukerebagh nature reserve, Stotts Island, in national parks and other nature reserves) and the presence of the community within SEPP 14 wetlands (also referred to in the final determination). Those matters all point to the community being represented in conservation reserves and other similar protected areas. Whether that representation was adequate is another matter. Given the matters identified in the final determination, I am unable to accept Mr Parker's evidence that the community was adequately represented as referred to in s 5A(f). With respect to the other threatened species identified by Dr Phillips as potentially relevant, my conclusions about those species in the context of s 5A(a), and my acceptance of Mr Parker's evidence about the low fauna habitat value of lot 121, apply.
78 Section 5A(g) ("whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process") was relevant. Threatening processes were defined in s 4(1) of the Threatened Species Conservation Act ("a process that threatens, or may have the capability to threaten, the survival or evolutionary development of species, populations or ecological communities"). Section 15 enabled key threatening processes to be listed. Mr Parker acknowledged that clearing of native vegetation was a listed key threatening process at the date the development application was determined.
79 Section 5A(h) ("whether any threatened species, population or ecological community is at the limit of its known distribution") was relevant. Mr Parker concluded that no threatened species, population or ecological community was at the limit of its known distribution based on his review of profiles of threatened species and the recorded habitat. I accept that evidence.
80 As Pearlman J emphasised in Plumb, s 5A is not the end of the inquiry. Other matters are relevant, including the objects of the statutes, the principles of ecologically sustainable development, the Chinderah local environmental study flora and fauna assessment, the Tweed Vegetation Management Strategy, Mr Ward's assessment lodged with the development application, the koala sightings referred to by Dr Phillips, the quality of the vegetation and the debate between Dr Phillips and Mr Parker about the number of trees in fact cleared. However, I do not think the last issue warrants particular emphasis. The endangered ecological community involved more than just trees. Also, my assessment of the question under s 78A(8)(b) is based on an assumption that all of the community on lot 121 was to be cleared - about 9000sqm, including the more dense vegetation identified by Mr Parker as of better quality towards the creek and at the rear of the lot.
81 I do not accept that the fact that the vegetation was an endangered ecological community and was to be cleared necessarily meant the development application was required to be accompanied by a species impact statement. That approach does not appropriately reflect the statutory scheme or any recognisable application of the principles of ecologically sustainable development. The statutory test was not whether the development was likely to impact to any extent on threatened species, populations or ecological communities, or their habitats. It was whether the development was likely to significantly affect threatened species, populations or ecological communities, or their habitats, recognising that "likely" means a real chance or possibility and "significantly" means "important", "notable", "weighty" or "more than ordinary". I do not consider lot 121 to have been a significant area of, or habitat for, the community for the reasons I have given. I have accepted Mr Parker's evidence that the area of the endangered ecological community on lot 121 was small, located at the end of the swathe of vegetation around the creek line and fronting Chinderah Bay Drive and the river, largely degraded (albeit with better quality vegetation towards the creek and at the rear), with low habitat value, and affected by urban development and associated edge effects. On the evidence, and having regard to all the matters set out above, I am satisfied that the proposed clearing of the endangered ecological community of about 9000 sqm from lot 121 was not likely to significantly affect threatened species, populations or ecological communities, or their habitats. Accordingly, the development application was not required to be accompanied by a species impact statement by reason of s 78A(8)(b) of the EPA Act.
82 There is one other matter I wish to mention. Mr Parker was questioned at some length by Mr Corowa's agent about an alleged failure to mention in his report for the purpose of the Class 1 proceedings that he had inspected lot 121 on 13 October 2006 (before the clearing). Mr Parker, I infer, answered those questions assuming (as he was entitled to do) that what had been put to him was true (that he had not mentioned that inspection in his Class 1 report). The class 1 report was tendered. On p 12 at [10] Mr Parker discloses that he inspected the "car park area" (that is, lot 121) on 13 October 2006.
83 I have concluded above that the notice under s 101 precludes these claims. Given my observations in section C, it is appropriate that I provide my findings with respect to these claims.
84 Mr Corowa bore the onus of proving that the Council failed to consider a matter that it was required to take into account in determining the development application. Mr Corowa had to discharge this onus "in accordance with proper legal requirements and by inference not suspicion". An inference of failure of consideration is only to be reached after "anxious consideration" (Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319 at 345 per Moffitt J. See also Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381 at [211] per Mason P).
85 A consent authority is "under no duty to set out in writing all that which was taken into account when making any of the relevant determinations". It is generally sufficient if the most important matters are dealt with (Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135 at 139 and Somerville v Dalby and Others (1990) 69 LGRA 422 at 429).
86 Insofar as the claim was based on DCP 5, it is clear that the development application was amended more than once to deal with the concerns of the Council's engineers that the subdivision did not comply with the requirements of the DCP. By 13 January 2005, the amendments were complete and the Council officers had concluded that the development complied with DCP 5, as the assessment report discloses. The claim that the Council failed to consider DCP 5 or granted consent in breach of the DCP is unsustainable on the facts. Moreover, granting a consent in breach of a requirement of a development control plan does not constitute a breach of the EPA Act, provided the consent authority discharged its obligation to consider the provisions of that plan (s 79C(1)(a)(iii) of the EPA Act).
87 Insofar as the claim was based on the Tweed Vegetation Management Strategy and the Tweed Vegetation Management Plan 1999, I do not accept that the strategy or plan were matters that the Council was bound to consider either by express words in s 79C(1) or by necessary implication from the statutory scheme (Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277 at [80]). I am not satisfied that failure to mention the strategy or plan in the assessment report and other documents founds an inference that the Council failed to consider those documents. For example, the pro-forma prompts for consideration of s 79C(1)(b) and (c) did not require the officer to tick those matters in fact considered. Instead it provided that significant matters should be ticked and comment provided, but that matters not ticked were considered satisfactory. No matters are ticked (or crossed) under either section, yet comments appear about those matters (such as soils, water and natural hazards). Moreover, the conditions of development consent need to be taken into account. Condition 54 required that "riparian vegetation shall not be removed or damaged". That condition discloses consideration of vegetation retention on lot 121, although the assessment report is silent about the reasons for imposition of the condition. Finally, the plan is referred to in the appendix to the assessment report.
88 The claim based on the Council's alleged failure to consider threatened species and endangered ecological communities is more difficult to resolve. The Council and Geographe Point accepted that the Council was bound to consider this matter under s 79C(1)(b). They submitted that no inference would be drawn that the Council had not done so.
89 The assessment report referred to s 5A of the EPA Act and the conclusion that the proposal would not have a "significant effect on threatened species, populations or ecological communities or their habitat". The Council submitted that this demonstrated the Council's consideration of the endangered ecological community (otherwise there would have been no reason to refer to s 5A at all). The Council's submission fails to recognise the substance of the claim. Although the report referred to s 5A, it did not refer to the endangered ecological community Swamp Oak Floodplain Forest. In these circumstances, the claim is that the Council's consideration under s 79C(1), by reference to s 5A, materially miscarried (and was thus no consideration at all) because it was done without taking into account the status of the vegetation on the land as the endangered ecological community Swamp Oak Floodplain Forest.
90 Matters supporting the inference against the Council are the representation by Mr Anderson to the Council on 20 December 2004 that "no threatened species occur on the site and Tweed Shire Council has raised no objection to the proposal in relation to threatened species issues", the absence of any reference to the endangered ecological community in the documents tendered, particularly the assessment report, and the date of the listing of the community on 17 December 2004 (about four weeks before the Council granted the development consent and where the application had been pending for about eighteen months). The matters that might support the contrary inference are the terms of the pro-forma prompts in the assessment report (which do not support an inference that matters not ticked have not been considered at all), condition 54 with respect to riparian vegetation, potentially, the status of the person who made the determination as a professional officer of the Council (in contrast to, for example, the observations in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 31), and the publication of the listing of the community in accordance with the procedures set out in the Threatened Species Conservation Act (s 24).
91 The status of the vegetation as an endangered ecological community was an important matter. The assessment report omitted any reference to the fact that the endangered ecological community was present on lot 121. No other documents in evidence refer to that fact. There is no evidence of any response from the Council to Mr Anderson's representation that it was proposed to clear the whole of lot 121 or there was no "threatened species" issue. Although limited to "threatened species", I have no doubt that this representation was meant to be and was understood by the Council as a shorthand reference to "threatened species, populations or ecological communities, or their habitats". To my mind, it is inconceivable that the Council's assessing and determining officers would have omitted any reference to the presence of the endangered ecological community on lot 121 had they taken that fact into consideration. Such an omission would have undermined the whole purpose of the assessment report - to record the important matters of relevance to the assessment of the application. The omission of any reference to the endangered ecological community on lot 121 in the Council documents, in the context described, gives rise to a strong inference that the Council failed to consider the status of the vegetation on lot 121 as the endangered ecological community Swamp Oak Floodplain Forest. The failure occurred by reason of oversight. The failure was in breach of the EPA Act, but the notice under s 101 precludes challenge to the validity of the consent on this ground.
92 Construction certificates are regulated by Pt 4A of the EPA Act. The statutory provisions have not materially altered since the Council issued the construction certificate (8 March 2006). Section 109C(1)(b) provides that a construction certificate is a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in s 81A(5). Section 81A(5) enables the regulations to make provision concerning the issue of certificates for the erection of buildings and the subdivision of land. Section 80(12) provides that a construction certificate and any approved plans and specifications issued with respect to it are taken to form part of the relevant development consent (other than for the purposes of s 96). Clause 145(2) provides that a certifying authority must not issue a construction certificate for subdivision work unless it is satisfied that the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under cl 140) are not inconsistent with the development consent. The question "whether or not there is a breach of a provision of the Act will depend in part on the proper construction of the provision in question" (Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at [82]). The relevant pre-condition to the issue of the construction certificate was the state of satisfaction of the certifying authority (in this case, the Council) that the design and construction of the work depicted in the construction certificate documents was not inconsistent with the development consent. Accordingly, an allegation of inconsistency, of itself, cannot found breach (see Lesnewski at [82]). It follows that the only claim capable of founding breach in this case was that the Council's state of satisfaction was manifestly unreasonable.
93 The resolution of that claim requires comparison between the construction certificate and the development consent before the construction certificate was granted (given the effect of s 80(12)). Mr Corowa's essential complaint is that the development consent required the development to be completed in accordance with the statement of environmental effects and figure 1.0 prepared by Blueland engineers dated August 2004, except where varied by the conditions of consent (see condition 1). The text of the statement of environmental effects apparently represented that most trees and vegetation on lot 121 would be retained. Yet many trees and vegetation on lot 121 have been removed. In these circumstances, it is not difficult to understand a sense of grievance about the development application process in this case. Nevertheless, the Court "has no jurisdiction to cure administrative injustice or error" (Quin at 36). The issues are to be resolved by proper construction of the development consent and construction certificate, and application of the well-known principles applying to claims of manifest unreasonableness. For similar reasons, the evidence of Mr Adam Smith, town planner, relied on by Geographe Point was of no material assistance to resolution of this issue.
94 In AGC (Advances) Ltd v Roads and Traffic Authority of NSW (1993) 30 NSWLR 391 at 395-396, the Court of Appeal observed that whether statements of intention in an environmental impact statement under Pt 5 of the EPA Act could found a breach of the Act within the meaning of s 124(1) was a matter of some difficulty. I infer that the Court had in mind the range of difficulties recognised in Ryde Municipal Council v The Royal Ryde Homes and Another (1970) 19 LGRA 321 at 324 in the context of construing development consents - that "serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact and assertions of intention in an application form, as well as every other statement made in support of an application, were to be regarded as terms or conditions of a development consent". Here, of course, the Council elected to impose a requirement that the development be completed in accordance with the statement of environmental effects and a plan, except as varied by the other conditions; but the difficulty thereby created is the same as that identified in The Royal Ryde Homes.
95 The problems of construction caused by condition 1 and its reference to the statement of environmental effects are many and varied. For example, the statement of environmental effects related to an application for a 7 lot subdivision and a car park, with underground fuel tank, over the residue lot. Figure 1.0 prepared by Blueland engineers dated August 2004 depicts a 6 lot subdivision absent any car park or underground fuel tank - as those elements were deleted after the statement was lodged. The text of the statement of environmental effects represented that most trees and vegetation on lot 21 would be able to be retained, despite the fact that the plans and other information lodged with the application showed a proposed car park over most of the residue lot, a need to fill the land for all residential lots, the means of access to those lots, and to obtain appropriate drainage of the residue lot - filling, I note, described in the statement of environmental effects as "minor filling" on p 4, but "extensive filling" on p 20. Despite these representations, the statement of environmental effects also referred to and relied on the "full details" in the engineering impact assessment (for example, at p 20) - an assessment that, contrary to the statement of environmental effects, said vegetation would be cleared to within 5 metres from the earthworks lines. In other words, the statement of environmental effects was internally inconsistent, was inconsistent with the development plans to which it referred, was inconsistent with the engineering impact assessment on which it relied, and described a development that bore little relationship to that ultimately proposed.
96 What then did the development consent (before the construction certificate was granted) authorise? This question is to be answered with the principles of construction identified in Westfield Management Limited v Perpetual Trustee Company Limited & Anor [2006] NSWCA 245 at [32] - [36] and [40] - [41]) in mind. Even disregarding the inconsistencies associated with the statement of environmental effects to which I have referred, I do not accept that the effect of condition 1 of the development consent was to require Geographe Point to retain most of the trees and vegetation on lot 121. The development consent required the subdivision to be carried out in accordance with figure 1.0 prepared by Blueland engineers dated August 2004 (condition 1) and, in so doing, required lot 121 to be filled in accordance with figure 4.0 prepared by Blueland engineers dated September 2004 (condition 12). This fill was to achieve the requirements specified in conditions 7, 12, 26, 33, 24, 35, 37, 38, 39, 42, 55 and 56, with the final details of the filling to be detailed in the construction certificate plans (condition 8.4) and to incorporate appropriate drainage (conditions 7, 8.3, 27 and 12). The carrying out of this development was also subject to a requirement that riparian vegetation was not to be removed or damaged. Accordingly, the statement of environmental effects was varied by all these other conditions as referred to in condition 1. I also do not accept the submission on behalf of Mr Corowa that the 5 August 2005 soil and water management plan is material. I am not satisfied that this document was approved by the Council or has any status under the development consent or construction certificate. The fact that it was submitted and held on the Council's file (which I accept) is insufficient for this purpose.
97 Once the development consent has been properly construed, it may be compared to the construction certificate. While the filled area depicted on the construction certificate plans extended beyond the right of carriageway, there are numerous reasons why that was likely to be "not inconsistent" with the development consent. For example, the construction certificate plans show the batter whereas the development consent plans do not. The development consent contemplated that filled areas would involve batters (for example, conditions 7 and 42). The development consent also required the fill plan to address drainage and not to cause on site ponding (conditions 8.4, 12 and 27). The correspondence between the Council officers and Geographe Point's representative discloses that the officers were aware of the consistency issue, and rejected various versions of the construction certificate plans before they were satisfied that the construction certificate could be issued (including requiring a note about vegetation retention which I consider consistent with condition 54 of the consent). The note about vegetation retention in one part only of lot 121 is also explicable by reference to the various conditions of consent identified above, including condition 54 about riparian vegetation. The circumstances do not approach the stringent threshold required to make good a claim of manifest unreasonableness with respect to the Council's state of satisfaction under cl 145(2) (see, for example, Westfield Management Limited v Perpetual Trustee Company Limited & Anor at [71]). The alternative manifest unreasonableness grounds with respect to the construction certificate (based on allegations of failure to consider the Tweed Vegetation Management Strategy, threatened species and endangered ecological communities, and breach of and failure to consider DCP 5) must also fail for the reasons given above.
98 This claim was also based on condition 1 of the development consent. Mr Smith gave evidence about this issue but, again, I did not find his evidence of material assistance. The claim of breach must be assessed against the consent as a whole (including all conditions and recognising the effect of the construction certificate under s 80(12)).
99 Geographe Point admitted that it had cleared trees and vegetation up to the line depicted on the construction certificate plan 205009-06E. For the reasons given above, the representations in the statement of environmental effects about retention of trees and vegetation (leaving aside the many inconsistencies associated with that document) were varied by the other conditions of development consent I have identified, particularly conditions 8.4, 12 and 54. The construction certificate (and thus the consent) required vegetation in the south-eastern section of lot 121 to be retained. When the development consent is construed as a whole, I am satisfied that it was not a breach of the consent for Geographe Point to remove trees and vegetation within the line of the fill shown on the construction certificate plan 205009-06E. On the evidence, I am also not satisfied that Geographe Point caused any trees or vegetation outside the line of the fill shown on the construction certificate plan 205009-06E to be cleared. Accordingly, Mr Corowa has not proved any breach of the development consent.
100 Mr Corowa has not proved that the clearing was the carrying out of development in breach of s 76A(1)(b) of the EPA Act. The consent, construed as a whole, authorised the clearing that Geographe Point carried out. Accordingly, on the evidence, I am satisfied that the clearing was essential for the carrying out of the development in accordance with the development consent. It follows, in my view, that the claimed breaches of ss 118A(2) and 118D(1) of the NPW Act must fail (given the statutory defences in ss 118A(3)(b) and 118D(b)(i)).
101 For the reasons given above, Mr Corowa's claims that the development consent and construction certificate are invalid and that Geographe Point has carried out clearing in breach of the development consent and NPW Act fail. The Class 4 application should be dismissed. Costs may be argued.
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.
Corowa
Geographe Point Pty Ltd & Anor
CITATION : Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121
AGC (Advances) Ltd v Roads and Traffic Authority of NSW (1993) 30 NSWLR 391; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210; Carstens v Pittwater Council (1999) 111 LGERA 1; Currey v Sutherland Shire Council (2003) 129 LGERA 223; Helman v Byron Shire Council and Another (1995) 87 LGERA 349; Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277; Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135; Maule v Liporoni and Another (2002) 122 LGERA 140; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381; Oshlack v Richmond River Shire Council and Another (1993) 82 LGERA 222; CASES CITED: O'Toole v Charles David Proprietary Limited (1990) 171 CLR 232; Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319; Plumb v Penrith City Council and Anor [2002] NSWLEC 223; Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355; R v Hickman and Others; Ex parte Fox and Clinton (1945) 70 CLR 598; R v Murray and Others; Ex Parte Proctor and Others (1949) 77 CLR 387; Rundle v Tweed Shire Council and Another (1989) 68 LGRA 308; Ryde Municipal Council v The Royal Ryde Homes and Another (1970) 19 LGRA 321; Smyth v Nambucca Shire Council and Another (1999) 105 LGERA 65; Sofi v Wollondilly Shire Council and Another [1975] 2 NSWLR 614; Somerville v Dalby and Others (1990) 69 LGRA 422; The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178; Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55; Westfield Management Limited v Perpetual Trustee Company Limited & Anor [2006] NSWCA 245; Woolworths Limited and Another v Bathurst City Council and Another (1987) 63 LGRA 55; Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707
(1993) 30 NSWLR 391
(1990) 170 CLR 1
(1999) 111 LGERA 1
(2003) 129 LGERA 223
(1995) 87 LGERA 349
(2006) 143 LGERA 277
(2005) 138 LGERA 207
(2005) 64 NSWLR 695
(2001) 52 NSWLR 705
(2002) 122 LGERA 140
(1986) 162 CLR 24
(2002) 55 NSWLR 381
(1993) 82 LGERA 222
(1990) 171 CLR 232
(1998) 194 CLR 355
(1945) 70 CLR 598
(1949) 77 CLR 387
(1999) 105 LGERA 65
(2004) 137 LGERA 178
(1999) 46 NSWLR 55
(2004) 61 NSWLR 707