Davis v Gosford City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10121 of 2007 Raymond John Davis and Susanne Margaret Davis v Gosford City Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Gosford City Council (the council) of a development application to establish a waste recycling facility on lot 9 DP 787857 Somersby Falls Road, Somersby.

The site 2 The site is in the northeast part of the Somersby Industrial Area. It has an area of 11 hectares. Its western boundary is behind small industrial allotments fronting Somersby Falls Road; however, it has a 30m wide "access handle" to that road. Its southern boundary has access to an unformed part of Somersby Falls Road. The site is heavily treed and there are signs of the bushfire that raged through it on New Year's Day 2006. 3 The site is towards the northern end of the industrial area where the industrial zoning gives way to agricultural zoning. The nearest house is about 120m from the northern boundary.

The proposal 4 The applicant proposes to develop approximately 4 hectares of the site for a waste recycling facility. Vehicular entrance is proposed from the formed section of Somersby Falls Road via the 30m wide "access handle".

Relevant planning controls and policies 5 The Environmental Planning and Assessment Act 1979 (the EPA Act) and Regulations 2000 establish the criteria for integrated and designated development. Because a waste recycling plant of this size requires a licence from the Department of Conservation and Climate Change (DECC) under the Protection of the Environment Operations Act 1997, the proposal is integrated development. The DECC has provided its General Terms of Approval for the required licence. The proposal is also designated development under the EPA Regulations. Designated development requires an Environmental Impact Statement (EIS), which the applicant lodged with the development application. The EIS included a Species Impact Statement (SIS). 6 Section 5A of the EPA Act establishes the so-called seven-part test that has to be applied to development sites that are thought to contain threatened species. The applicant applied the test and concluded that there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats. When that conclusion is reached in respect of a proposal, the applicant must prepare a SIS. Section 111 of the Threatened Species Conservation Act 1995 (the TSC Act) provides for the Director General (originally of the National Parks and Wildlife Service, but now of the DECC) to notify his requirements in respect of the SIS to be prepared. The Director General has issued these requirements. As mentioned above, the SIS forms part of the EIS submitted with the application. The council is required to refer the SIS to the Director General. It did so in December 2005. 7 Section 79B(3) of the EPA Act provides that consent cannot be granted for development that is likely to have a significant effect on threatened species, populations or ecological communities, or their habitats without the concurrence of the Director General. However, section 39(6)(a) of the Land and Environment Court Act 1979 (the Court Act) provides that the Court may determine an appeal whether or not concurrence has been granted. 8 The Gosford Local Environmental Plan 22 zones the site 4(a1) General Industrial. Draft Local Environmental Plan 457 - Somersby Industrial Park proposes to zone the site 4(e). As far as I can see, there is no difference between the two zonings that is relevant to this application: the development is permissible in both zones. Submissions on the imminence and certainty of the draft Plan made during the hearing are therefore of little moment. 9 Several development control plans apply to the site, none of which are relevant to the determination of the appeal. The document that is most relevant is the Somersby Industrial Park Plan of Management (the Plan of Management). Since the Plan of Management does not fit into the hierarchy of statutory instruments in the EPA Act, the best term to describe it is planning policy. The council prepared it over a long period with the collaboration of the Premiers Department and the DECC. It was subject to extensive public participation. Because the term "Plan of Management" usually refers to a document describing the future operations of an activity, it is possibly a misleading term for what this document is trying to achieve, which appears to be the retention of biodiversity in the Somersby Industrial Park. The Plan of Management suggests (at page 6) that its implementation will require a supporting local environmental plan and a development control plan. At the time of hearing these documents are in draft form, though the development control plan was not in evidence. It appears from the evidence that those parts of the draft LEP that would give added force to the Plan of Management are in contention and may not be included in the Plan when made. Despite this, in my opinion the Plan of Management should be given significant weight because of the thorough and detailed work upon which it is based and the extensive public consultation process that occurred before it was adopted. In the event, however, the weight attributed to the Plan of Management turned out not to be crucial to the determination of the appeal. 10 While the place of the Plan of Management in the hierarchy of planning instruments and policies is a matter of debate, its significance in one respect is a matter of fact. Figure 4.1 of the Plan of Management identifies a number of management zones that contain a representative sample of known sites of threatened species, as well as potential habitat and movement corridors for a number of threatened animals and plants. Under clause 64 of the EPA Regulations 2000 the Director General may issue an assumed concurrence to a consent authority in respect of a type of development or an area. The assumed concurrence has the same status as a concurrence issued under s79B of the EPA Act, provided that any conditions specified in the assumed concurrence are met. On 11 November 2005, Mr Robert Humphries of the then Department of Environment and Conservation (which succeeded the National Parks and Wildlife Service and preceded the Department of Conservation and Climate Change), as delegate of the Director General, issued an assumed concurrence for all development in the Somersby Industrial Park outside the various management zones. The outcome of the assumed concurrence is that applicants for development outside the management zones are not required to undertake either the seven-part test under section 5A of the EPA Act or to prepare a SIS. The reason that this application is required to submit a SIS is that part of it falls outside the management zones shown on Figure 4.1 of the Plan of Management. 11 The letter of 11 November 2005 conveying the assumed concurrence to the council contains the following warning: It is highly unlikely that concurrence would be granted (to development within the management zones) given that the draft management plan has identified the minimum areas necessary to maintain viable populations of threatened species at the Somersby Industrial Park.

History of the application 12 The applicant lodged the development application in December 2005. Following notification, the council received three submissions. The council referred the application to the Department of Planning, the then Department of Environment and Conservation and the Roads and Traffic Authority. In July 2006 the council refused the application for six reasons. Of these, only two remain in contention, namely the inadequacy of the SIS and the objectors' concerns. 13 The applicant lodged the appeal in February 2007. The matter was listed for hearing in September 2007; however on 22 August 2007, the applicant filed a motion with the Court to rely on amended drawings and to cancel the hearing dates. The applicant's argument in support of the amended drawings at this late stage, five months after lodging the appeal, was that they were responsive to the council's criticisms. The council supported the motion and the Court allowed the applicant to rely on amended drawings. I note here that the applicant's assertion that the amended drawings responded to the council's concerns, and the council's apparent acceptance of this assertion appear strange, given that the amended drawings doubled the area of intrusion into the management zone. 14 The amended drawings were re-notified on 24 August 2007. On 20 November 2007 the Director General issued a letter in respect of his concurrence. The effect of the letter is to refuse concurrence.

The objectors' evidence 15 The Court heard the evidence of three objectors and a supporter during the visit to the site. Mr Ralf Dahmen, who lives at 79 Howes Road, said that he was concerned at the extended operating hours of the proposal. The area was now quiet and the new activity will detract from the amenity of the adjoining residential area. The joint report of the acoustic experts assures the Court that the proposed conditions of consent would ensure that the noise generated by the proposal and reaching the nearest house will be acceptable. 16 Mr Justin Dock, a material scientist with Dimension Polyant, the adjoining industrial activity producing sailcloth, said his concern was the effect of dust on the quality of sailcloth. The dust experts have agreed on conditions consent that would ensure that the adjoining site is protected from any fallout of dust. 17 Mr Gerard Clinton, who works for Aspro Australia, said that the Somersby Industrial Park was more suitable for light industry than for a waste recycling plant. Mr Adam Lowe, an earthmover of 4 Davids Close, said that he supported the proposal. 18 I do not think that any of the above evidence provides a reason for refusal.

Matters in contention 19 Given the above finding on the objectors' evidence, the only matter in contention was whether the Court should consent to the application notwithstanding the Director General's refusal to issue his concurrence. It was common ground that the Court had the power to do so; the issue was whether it should exercise this power.

The Director General's concurrence 20 Four letters of relevance to this application from the Director General of the DEC and its successor the DECC were in evidence. The first, already referred to in this judgment, was in April 2004. It contained the Director General's requirements in respect of the SIS that should accompany the development application. 21 The second communication was dated 6 April 2006. It stated, on the basis of an assessment by the council's environmental assessment officer, Mr Mark Stables, that the SIS did not comply with Director General's requirements. It requested a revision of the SIS to comply with those requirements. Among other things, it specified the additional information sought as " an overlay of the development footprint with the management zones of the Somersby Industrial Park Draft Plan of Management, specific details of what threatened species values will be impacted upon by any encroachment of development into the management zones, and a statement of whether any or all of the conditions of the assumed concurrence are proposed to be adhered to". 22 The third communication, dated 12 October 2007, was in response to the council's submission of the amended application, for which the applicant received leave from the Court in August 2007. The letter states that the information submitted by the applicant is insufficient to enable an assessment of the likely impact on threatened species. The following additional information was sought. · Details of whether or not the amended proposal complies with the conditions of the assumed concurrence. · Information on whether the amended proposal complies with the Plan of Management for the Somersby Industrial Park, including whether there is an incursion into management zones, and, if so, details on its size, significance and its likely impact on threatened species and biodiversity. Detailed information on threatened species Hibbertia procumbens, Red Crowned Toadlet and Giant Burrowing Frog should also be included, as they are known or considered highly likely on the subject site. · An environmental assessment report together with appropriate survey information on threatened species (both flora and fauna), their habitat and biodiversity issues in general, including details on vegetation communities and habitat types present. 23 The letter re-states the position expressed in the assumed concurrence given in November 2005, namely that it is highly unlikely that concurrence would be granted to development within the management zones. 24 The fourth communication, dated 20 November 2007, has already been referred in paragraph 15. It states that The DECC has reviewed the report submitted by Ecotone and formed the opinion that the revised development proposal does not satisfy the assumed concurrence nor does it provide sufficient justification to permit development in a management zone. 25 The letter provides four reasons for the above conclusion, ie · The amended proposal does not comply with the conditions of the assumed concurrence, given that it encroaches a threatened species management zone, Management Zone 1(d) _ Hibbertia procumbens habitat. · The management zones set up under the Plan of Management and the assumed concurrence have been specifically set aside and agreed upon for conservation purposes. If sound and compelling reasons are put forward to allow development within a management zone, the proposal must be supported by appropriate mitigation and offset measures to compensate for the loss or impact on threatened species management zones. · The report does not present a compelling argument to encroach the management zones. Areas recently burnt, if allowed to regenerate, are highly likely to provide suitable habitat for the threatened species they were set aside to protect. · The report indicates that Hibbertia procumbens has not re-established over the site since it was burnt by a bushfire in January 2006. The applicant's experts attribute this to low densities of the species prior to the fire, the fire intensity and the subsequent death of adult plants and ongoing drought conditions. The report also states "no individuals of Hibbertia procumbens were flowering at the time of the site visit, which made detection and identification a little more difficult". This species primarily flowers in October and into early summer. It follows that targeted surveys are best conducted during these months and the failure to observe regeneration of this species, at the time the survey was conducted, does not mean that the management zones will not support this species in the future. 26 The letter goes on to say that, given the degree of uncertainty expressed in the report with regard to the likely impacts on known threatened species, and the distribution/density of such species across the site, the DECC believes that the precautionary principle should be applied. This requires avoiding development in management zones until such time as the status of the threatened taxa is reliably assessed and the objectives of the assumed concurrence are satisfied.

The expert ecological evidence 27 The Court heard the evidence of Mr Mark Stables, the council's Senior Environment Assessment Officer, Mr Ray Williams an ecologist specialising on fauna, and Mr Stefan Rose, an ecologist specialising on plants, the two latter being retained by the applicant. Mr Williams and Mr Rose prepared the additional information relating to the amended application to which the DECC letter of 20 November 2007 (see paragraph 25) refers. The experts agreed that there was no concern about the Red-crowned Toadlet and the Giant Burrowing Frog. To the extent that the Director General's letter of 7 October 2007 deals with these two species, I am satisfied that the Court may grant consent to the development without the Director General's concurrence. 28 The experts had slightly (though not widely) different views on the proposal's impact on the Eastern Pygmy Possum and the Hibbertia procumbens. With regard to the Eastern Pygmy Possum, Mr Stables considered that the development could cause a significant impact as a result of habitat loss. With regard to the Hibbertia procumbens, the supplementary field investigations have concluded that the exact level of impact is unable to be determined due to poor post-fire regeneration. Due to this scientific uncertainty the precautionary principle ought to be considered. In Mr Stables' opinion, the proposed development will result in the loss of biological diversity and has the potential to further threaten the known local populations of both the Eastern Pygmy Possum and Hibbertia procumbens. 29 Mr Williams and Mr Rose written statement concludes on the impact on these two species as follows: · In respect of Hibbertia procumbens, because a degree of scientific uncertainty exists, the Precautionary Principle should be considered. However, because it is clear that additional occurrences of Hibbertia procumbens occur within the site than mapped by Connell Wagner, the Precautionary Principle should not in itself be used to automatically exclude the current development proposal. · The proposal has the potential to further threaten the known local populations of both the Eastern Pygmy Possum and Hibbertia procumbens, but whether this would be to the extent of imposing a significant impact on either species is unclear. · Whilst the proposed development will result in a degree of loss of biological diversity, this is the case for any development involving clearing of native vegetation. 30 In oral evidence, Mr Williams and Mr Rose re-affirmed their written opinions that there was not enough information to conclude whether there will be a significant impact on the two relevant threatened species. Mr Rose said that further work was required.

Assessment of the ecological evidence 31 It is common ground that the Court has the power to grant consent to the application notwithstanding the Director General's refusal to issue his concurrence. However, to exercise this discretion, the Court would need strong evidence that either satisfies the Director General's hitherto unsatisfied concerns or proves that those concerns were unreasonable in the first place. The evidence in respect of the Red-crowned Toadlet and the Giant Burrowing Frog is evidence of the kind needed. 32 The proposal intrudes into about one hectare of management zone set aside for conservation. Before the proposal was amended, it intruded into about half a hectare of the management zone. The Director General's letter of 20 November 2007 indicates that concurrence may be granted if sound and compelling reasons are put forward to justify such an intrusion. The letter adds that an intrusive proposal must be supported by appropriate mitigation and offset measures to compensate for the loss of management zone. 33 Neither the written nor the oral evidence of Mr Williams and Mr Rose is of the kind that would give comfort to the Court in exercising its power to ignore the requirement for the Director General's concurrence. At best, the evidence says that an adverse impact on two threatened species is uncertain. What the Court requires in such a case is evidence to the effect that an adverse impact is highly unlikely. Moreover, the Director General's expectation of "offset measures" (presumably land given elsewhere in lieu of the management zone into which the development intrudes) seems to me reasonable. No such measures are proposed. 34 I note the applicant's argument that the management zones specified in the Plan of Management constitute a much higher proportion of this site than they do in the Somersby Industrial Park generally. While the argument has some force, to take it into account the Court would have to balance ecological sustainability (in this case biodiversity) against the disproportionate effect of the Plan of Management on the applicant's land. It seems to me that in this equation biodiversity must to be given preference. 35 For the above reasons the appeal is dismissed.

2 Development application to establish a waste recycling facility on lot 9 DP 787857 Somersby Falls Road, Somersby is determined by refusal

      Dr John Roseth
      Senior Commissioner

10/12/2007 - accidentally placed on judges' decisions - Paragraph(s) cover page

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