Denoci Pty Limited v Liverpool City Council

The Proposed development

1. The Applicant's Proposed Development is for earthworks, including the removal of all vegetation, on the Subject Site for the future purpose of constructing two warehouses.
2. The Proposed Development includes: 1. the removal of all vegetation across the 1.20 Ha (approx.) area of the Subject Site; 2. the removal of 1.04 Ha of native vegetation on the Subject Site. 3. earthworks to provide a development footprint for a future warehouse development.
3. While the Applicant's proposed earthworks, including vegetation removal, are said to be for the purpose of a future warehouse development, and while conceptual footprint locations for the two warehouses have been produced by the Applicant, no consent is sought for the construction of any warehouse as part of the development application that is the subject of this appeal.
4. The native vegetation on the Subject land was acknowledged by both Parties and their ecology experts (see below at [54]) to contain: 1. a vegetation community that is an endangered ecological community (EEC) listed under the Biodiversity Conservation Act 2016 (the BC Act). This EEC was said by the Applicant and its expert to be Castlereagh Swamp Wood EEC, and by the Respondent and its expert to be Cooks River/Castlereagh Ironbark Forest in the Sydney Basin Bioregion EEC; 2. specimens of the Downy Wattle (Acacia pubescens), which is listed as a vulnerable species under the BC Act, and the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 (the EPBC Act); 3. specimens of the Cumberland land snail (Meridolum corneovirens) which is listed as an endangered species under the BC Act.

History of the Subject Land

1. The irregular configuration of the lot containing the Subject Land had its origins in a consent issued by Liverpool City Council on 17 October 2005 in relation to DA2795/02. That consent approved the subdivision of land, then described as Lots 1 and 2 in DP 379584, to create eleven (11) industrial lots, one residual lot and one visual buffer lot.
2. The consent that created then Lot 111, which contains the Subject Land that is now Lot 11, was subject to conditions including the following conditions that are of relevance in this appeal: 1. Condition 11, which required that the subdivision layout must reflect the Option 2 layout as per the letter from the Department of Environment and Conservation (formerly National Parks and Wildlife Service) dated 17 July 2004; 2. Condition 19, which required that the development is to comply with the terms of concurrence issued by the Department of Environment and Conservation (formerly National Parks and Wildlife Service) issued 17 July 2004 as amended by a subsequent letter dated 22 September 2005; 3. Condition 69, concerning vegetation management, that required the implementation of the approved Management Plan (submitted to Council for approval prior to works commencing on site) that shall be supervised by a person suitably qualified in the translocation of threatened species and native vegetation management and restoration; 4. Condition 74, which required that no materials, goods, rubbish or other matter are to be stored in the proposed residue Lot 111, or any bushland area at any time during or after construction; 5. Condition 85, which required as follows: "85. The final plan of subdivision must be supported by an instrument under section 88B of the Conveyancing Act, 1919. The instrument must burden the proposed lot 111 (proposed residue lot) with restrictions as to the user as follows: i) The area of land shown as Lot 111 on the approved plans of the development must be established and retained as bushland and shall not be permitted to be cleared, altered or damaged except as required to remove noxious weeds or other exotic plant species; ii) Management of Lot 111 is outlined in the approved Management Plan." 1. Condition 100, concerning a Vegetation Management Plan, which required as follows: "100. A management plan is to be prepared that shall detail the proposed methods of managing the translocation of threatened flora and fauna species on the development site, mitigate impacts on bushland on or adjacent to the subject land and detailing any proposed revegetation works. The management plan shall address potential impacts during construction and the ongoing operation of the proposed development, and shall include the following: i) a map showing the distribution of Acacia pubescens on the site; ii) provision for the translocation of representative samples of Acacia pubescens from the development area to the residual lot. The number of samples to be translocated shall be determined in the management plan and shall be based on the number that can be translated without causing excessive damage to the residual lot. This should be based on the ANPC translocation guidelines; iii) a proposal for translocating Meridolum corneovirens from the development area to the residual lot; iv) proposed revegetation to be undertaken including species to be planted and the location of any planting; v) proposed methods of seed collection, propagation and replanting in relation to identified significant flora species; vi) proposed means of remediating any damage to existing bushland resulting from construction or operation of the development; vii) fencing and other protective measures to protect existing bushland; viii) maintenance regimes including weed management and irrigation (where required); ix) timing and staging of proposed works including maintenance. 1. Condition 101, which requires that: "The Plan shall be prepared and its implementation supervised by a person suitably qualified in the translocation of threatened species and native vegetation management and restoration. The Plan shall be submitted to Council's Manager Sustainable Environment and Health for approval prior to the issue of a subdivision certificate."
3. The subdivision layout referred to above at [18(1)] as the Option 2 layout is illustrated below in Figure 5: Figure 5 NSW NPWS Option 2 subdivision design
4. The final layout of the 2005 subdivision is shown below in Figure 6: Figure 6 Final Subdivision layout design in the 2005 subdivision
5. At the commencement of the hearing a view of the Subject Land including the Subject Site was undertaken by the Court. During that inspection the following matters were observed: 1. the fencing of the Subject Land, that had been a requirement under the Management Plan required through the imposition of Condition 100 (see above at [18(6)]) was not in evidence and appeared not to have been put in place following the grant of consent; 2. as a consequence of the lack of fencing, the Subject Land had been impacted by the dumping of rubbish into areas of vegetation within it; 3. general waste and rubbish materials were evident across most of the Subject Land, including in areas identified as constituting an EEC, and in areas that were observed to contain representatives of the threatened plant species Acacia pubescens; 4. waste and rubbish dumping impacts were most strongly observed towards the edges of the Subject Land and reduced as one travelled further away from the edges of the site; 5. notwithstanding the presence of, and impacts arising from, rubbish, the vegetation on the Subject Land was in good condition, and this was attested to by the Parties' ecology experts.
6. At the commencement of the on-site view, two objectors made submissions to the Court in relation to this appeal as follows: 1. Mr Stephen Dobell Brown, said that the bushland on the Subject Land: 1. represented a remnant of the vegetation that had previously existed across the local area; 2. was in good condition and had regenerated well; 3. had been retained through the actions of Council, and; 4. had important cultural values, including in relation to Aboriginal culture; 5. was important in terms of the vegetation and fauna it contained; 6. was a community asset that should be retained; 1. Mr Ian Bailey, who submitted that: 1. the Liverpool City Council local government area (LGA) had retained some 5% of its original woodland vegetation, and this includes the vegetation on the Subject Land; 2. given the small amount of remnant vegetation within the Liverpool LGA, it is important to retain all of that which remains; 3. the Subject Land provides part of a corridor between Cabramatta Creek and Brickmakers Creek; 4. vegetation corridors require substantial width to be effective; 5. the vegetation remaining on the Subject Land should all be retained.

Environmental Planning and Assessment Act 1979

1. The objects of the of the EP&A Act are as follows: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment.
2. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
3. Section 4.15(3A) of the EP&A Act further provides that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application.
4. Through the operation of cl 27 of the BC Act (see below at [27]), the provisions of the EP&A Act, which was in force until the commencement of the BC Act on 25 August 2017, apply to the assessment and determination of the Applicant's development application in this appeal. As a consequence, s 5AA of the current EP&A Act, and the related provisions of Part 7 of the BC Act, do not apply, and the relevant statutory basis for assessment of the potential biodiversity impacts of the Applicant's proposed development, is the former s 5A of the EP&A Act, which provides: 5A Significant effect on threatened species, populations or ecological communities, or their habitats (1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) each of the factors listed in subsection (2), (b) any assessment guidelines. (2) The following factors must be taken into account in making a determination under this section: (a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction, (b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction, (c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed: (i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or (ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction, (d) in relation to the habitat of a threatened species, population or ecological community: (i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and (ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality, (e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly), (f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan, (g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process. (3) In this section: assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994. key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 199.

Biodiversity Conservation Act 2016

1. The BC Act commenced on 25 August 2017. The Act applies to all NSW except for listed 'Interim designated areas' which were exempt from the BC Act until 24 November 2018.
2. The purpose of the BC Act is provided within s 1.3 of the Act as follows: The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular - (a) to conserve biodiversity at bioregional and State scales, and (b) to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and (c) to improve, share and use knowledge, including local and traditional Aboriginal ecological knowledge, about biodiversity conservation, and (d) to support biodiversity conservation in the context of a changing climate, and (e) to support collating and sharing data, and monitoring and reporting on the status of biodiversity and the effectiveness of conservation actions, and (f) to assess the extinction risk of species and ecological communities, and identify key threatening processes, through an independent and rigorous scientific process, and (g) to regulate human interactions with wildlife by applying a risk-based approach, and (h) to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and (i) to support and guide prioritised and strategic investment in biodiversity conservation, and (j) to encourage and enable landholders to enter into voluntary agreements over land for the conservation of biodiversity, and (k) to establish a framework to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity, and (l) to establish a scientific method for assessing the likely impacts on biodiversity values of proposed development and land use change, for calculating measures to offset those impacts and for assessing improvements in biodiversity values, and (m) to establish market-based conservation mechanisms through which the biodiversity impacts of development and land use change can be offset at landscape and site scales, and (n) to support public consultation and participation in biodiversity conservation and decision-making about biodiversity conservation, and (o) to make expert advice and knowledge available to assist the Minister in the administration of this Act:
3. The BC Act provides, inter alia, the definitions for classification and listing of threatened species and communities by the NSW Scientific Committee, and includes the following in relation to the definition of an endangered ecological community (EEC), under ss 4.5(2) and 4.5(4), as follows: … (2) An ecological community is eligible to be listed as an endangered ecological community if, in the opinion of the Scientific Committee - (a) it is facing a very high risk of extinction in Australia in the near future, as determined in accordance with criteria prescribed by the regulations, and (b) it is not eligible to be listed as a critically endangered ecological community. … (4) If an ecological community is not eligible to be listed in any category in accordance with this section on the basis of the risk of extinction in Australia, then it is eligible to be listed in accordance with this section on the basis of the risk of extinction in New South Wales.

Biodiversity Conservation Regulation 2017

1. The Biodiversity Conservation Regulation 2017 (BC Regulation) also commenced on 25 August 2017.
2. Clause 4.8 of the BC Regulation provides specific eligibility criteria for determinations by Scientific Committee of threatened ecological communities listings under s 4.5 of the BC Act, including under s 4.5(2) for an EEC, as follows. (2) Endangered ecological communities The relevant criteria for endangered ecological communities set out in this Division apply to a determination by the Scientific Committee that an ecological community is eligible to be listed as an endangered ecological community on the basis that - (a) it is facing a very high risk of extinction in Australia in the near future, and (b) it is not eligible to be listed as a critically endangered ecological community.

Biodiversity Conservation (Savings and Transitional) Regulations 2017

1. Concomitant with the implementation of the BC Act, the Biodiversity Conservation (Savings and Transitional) Regulations 2017 (the BC Savings Regulation) also commenced operation. This Act provides saving provisions with respect to the application of Part 7 of the BC Act to certain development applications, and also provides that in certain circumstances, the former planning provisions continue to apply (and Part 7 of the new Act does not apply) to the determination of a pending or interim planning application.
2. The term "former planning provisions" refers to the provisions of EP&A Act that would be in force if that version of the EP&A Act had not been amended by the BC Act.
3. The development application that is the subject of this appeal, DA734/2018, was lodged with the Respondent on 31 August 2018, and is deemed to have been refused by the respondent on 12 October 2018.
4. Section 28(1) of the BC Savings Regulation provides that: (1) The former planning provisions continue to apply (and Part 7 of the new Act does not apply) to the determination of a pending or interim planning application.
5. Under the definitions within cl 27(1) of the BC Savings Regulation, a pending or interim planning application includes: … (f) in the case of development (except State significant development) within a Western Sydney interim designated area under subclause (3) - an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (or for the modification of such a development consent) made on or before 24 November 2019 (but only if any species impact statement that is to be submitted in connection with the application is submitted on or before 24 May 2020).
6. Further, under the provisions in cl 27(3): … (3) For the purposes of paragraph (f) of the definition of pending or interim planning application in subclause (1), the local government areas of Camden, City of Campbelltown, City of Fairfield, City of Hawkesbury, City of Liverpool, City of Penrith and Wollondilly are Western Sydney interim designated areas.
7. The development application that is the subject of this appeal is a pending or interim planning application, as it was lodged before 24 November 2019, and it is accompanied by a species impact statement that was submitted in connection with the application before 24 May 2020, and the Subject Site is located within the City of Liverpool.
8. Consequently, and as agreed by the Parties at the hearing, the provisions of the former s 5A of the EP&A Act (see above at [26]) apply to the determination of a pending or interim planning application, including by reference the provisions of the Threatened Species Conservation Act 1995 (the TSC Act).

Conveyancing Act 1919

1. The Conveyancing Act 1919 provides under its s 88B as follows: (1) In this section public road and road have the meanings respectively ascribed to those expressions by the Roads Act 1993. (2) A plan shall not be lodged with the Registrar-General for registration or recording under Division 3 of Part 23 unless it indicates in the manner prescribed in respect of the plan by regulations made under this Act or the Real Property Act 1900 or in the manner required by the lodgment rules under the Real Property Act 1900 - (a) what easements, if any, are intended to be created - (i) burdening land comprised in the plan and appurtenant to any existing roads shown on the plan, and (ii) appurtenant to any roads to be vested upon registration of the plan, (b) what easements, if any, referred to in section 88A are intended to be created burdening land comprised in the plan and in whose favour those easements are intended to be created, (c) what other easements or profits à prendre, if any, are intended to be created appurtenant to or burdening land comprised in the plan, and (c1) what easements or profits à prendre, if any, appurtenant to or burdening land comprised in the plan are intended to be released or partially released, and (d) what restrictions on the use of land or positive covenants, if any, are intended to be created benefiting or burdening land comprised in the plan. (3) On registration or recording under Division 3 of Part 23 of a plan upon which any easement, profit à prendre, restriction or positive covenant is indicated in accordance with paragraph (a), (b), (c) or (d) of subsection (2) then, subject to compliance with the provisions of this Division - (a) any easement so indicated as intended to be created as appurtenant to any existing public roads shown in the plan or any roads to be vested in the council upon registration of the plan shall be created and shall without any further assurance vest in the council by virtue of such registration and of this Act, (b) any easement so indicated as intended to be created pursuant to section 88A shall be created and shall without any further assurance vest in the relevant prescribed authority referred to in that section by virtue of such registration and of this Act, (c) any other easement, profit à prendre or any restriction on the use of land (not being a restriction as to user of the type that may be imposed under section 88D or 88E) so indicated as intended to be created shall - (i) be created, (ii) without any further assurance and by virtue of such registration or recording and of this Act, vest in the owner of the land benefited by the easement or profit à prendre or be annexed to the land benefited by the restriction, as the case may be, notwithstanding that the land benefited and the land burdened may be in the same ownership at the time when the plan is registered or recorded and notwithstanding any rule of law or equity in that behalf, and (iii) not be extinguished by reason of the owner of a parcel of land benefited by such easement, profit à prendre or restriction holding or acquiring a greater interest in a separate parcel of land burdened thereby, and (d) any restriction on the use of land or positive covenant that is of the type that may be imposed under section 88BA, 88D or 88E and is so indicated as intended to be created takes effect as if it had been so imposed. (3AA) On registration or recording under Division 3 of Part 23 of a plan on which a release of an easement or profit à prendre is indicated in accordance with subsection (2)(c1), the easement or profit à prendre is released. (3A) When creating a folio of the Register kept under the Real Property Act 1900 for land benefited by any easement, or for land burdened by any easement, restriction on the use of land or positive covenant, created by this section, the Registrar-General shall record in that folio, in such manner as the Registrar-General considers appropriate, the easement, restriction on the use of land or positive covenant, as the case may be. (4) Any restriction on the use of land or positive covenant created by this section shall for the purposes of this Act and the Real Property Act 1900, have effect as if it was contained in a deed.

Threatened Species Conservation Act 1995

1. The objects of the TSC Act are: (a) to conserve biological diversity and promote ecologically sustainable development, and (b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and (c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and (d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and (e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and (f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management
2. Part 2 of the TSC Act provides for the listing of threatened species, populations and ecological communities and key threatening processes, including the listing in Schedule 1, of endangered species, endangered populations and ecological communities and species that are presumed to be extinct, and in Schedule 1A, of critically endangered species and ecological communities.

State Environmental Planning Policy No 55 - Remediation of Land

1. State Environmental Planning Policy No 55 - Remediation of Land (SEPP55) provides a state-wide planning approach to the remediation of contaminated land. The policy aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment by: 1. specifying when consent is required, and when it is not required, for a remediation work, and; 2. specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular, and; 3. requiring that a remediation work meet certain standards and notification requirements.
2. Clause 7 of SEPP55) requires that contamination and remediation are to be considered in determining a development application, and provides as follows: (1) A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. 3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is: (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital - land: (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

Liverpool Local Environment Plan 2008

1. Development on the Subject Land is also subject to the provisions of Liverpool Local Environment Plan 2008 (LLEP), and the following provisions of that instrument are of relevance in this appeal: 1. Clauses 2.1 and 2.3, under which the Subject Site, and most of the Subject Land, is zoned IN3 Heavy Industry, and the objectives of which are to: • provide suitable areas for those industries that need to be separated from other land uses. • encourage employment opportunities. • minimise any adverse effect of heavy industry on other land uses. • support and protect industrial land for industrial uses. • preserve opportunities for a wide range of industries and similar land uses by prohibiting land uses that detract from or undermine such opportunities 1. Under the provisions of cl 2.3(2) a consent authority, or the Court on appeal, must have regard to the objectives for development in the zone when determining a development application in respect of land within the zone. 2. Within the IN3 zone, the following land uses are permitted with consent: Boat building and repair facilities; Boat sheds; Building identification signs; Business identification signs; Cemeteries; Crematoria; Depots; Environmental facilities; Environmental protection works; Flood mitigation works; Freight transport facilities; General industries; Hazardous storage establishments; Heavy industrial storage establishments; Heavy industries; Helipads; Horticulture; Kiosks; Light industries; Mortuaries; Offensive storage establishments; Oyster aquaculture; Passenger transport facilities; Recreation areas; Recreation facilities (outdoor); Resource recovery facilities; Roads; Rural industries; Sex services premises; Storage premises; Tank-based aquaculture; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Warehouse or distribution centres; 1. Clause 7.6, concerning environmentally sensitive land, and which provides as follows: (1) The objectives of this clause are as follows: (a) to maintain bushland, wetlands and wildlife corridors of high conservation value, (b) to identify areas of significance for revegetation to connect to or buffer bushland, wetlands and wildlife corridors, (c) to protect rare and threatened native flora and native fauna, (d) to ensure consideration of the significance of vegetation, the sensitivity of the land and the impact of development on the environment prior to the giving of any development consent. (2) Before determining an application to carry out development on environmentally significant land, the consent authority must consider such of the following as are relevant - (a) the condition and significance of the vegetation on the land and whether it should be substantially retained in that location, (b) the importance of the vegetation in that particular location to native fauna, (c) the sensitivity of the land and the effect of clearing vegetation, (d) the relative stability of the bed and banks of any waterbody that may be affected by the development, whether on the site, upstream or downstream, (e) the effect of the development on water quality, stream flow and the functions of aquatic ecosystems (such as habitat and connectivity), (f) the effect of the development on public access to, and use of, any waterbody and its foreshores. 1. Environmentally significant land is defined in the Dictionary in LLEP as meaning: "The land identified as environmentally significant on the Environmentally Significant Land Map" that forms part of LLEP. 1. Clause 7.31, concerning earthworks, which provides as follows: (1) The objectives of this clause are as follows - (a) to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, (b) to allow earthworks of a minor nature without requiring separate development consent. (2) Development consent is required for earthworks unless - (a) the work is exempt development under this Plan or another applicable environmental planning instrument, or (b) the work is ancillary to other development for which development consent has been given. (3) Before granting development consent for earthworks, the consent authority must consider the following matters - (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area. Note. The National Parks and Wildlife Act 1974, particularly section 86, deals with disturbing or excavating land and Aboriginal objects.

Liverpool Development Control Plan

1. Development on the Subject Site is also subject to the provisions of Liverpool Development Control Plan 2008 (LDCP), the objectives of which are: "a) To provide more detailed provisions for regulating the carrying out of development. b) To protect and improve the natural environment in the City of Liverpool. c) To protect and improve the amenity of the City of Liverpool. d) To protect personal safety and to minimise the risk of damage to areas subject to environmental hazards, particularly flooding. e) To promote a high standard of urban and environmental design. f) To conserve, protect and enhance the environmental heritage of the City of Liverpool. g) To encourage a diversity of housing to meet the needs of the residents of the City of Liverpool. h) To facilitate development that is environmentally sustainable."
2. Part 1 of LDCP provides general controls for all development in the area to which the plan applies, including the Subject Land. The following provisions of Part 1 of LDCP are of relevance in this appeal: 1. Part 3, concerning landscaping and the incorporation of existing trees into developments, which has the following general objectives, as well as specific controls under cl 3.1 for retention of existing trees: "Objectives a) Promote landscape planning and design as part of a fully integrated approach to site development. b) Assist in improving the climate of the local environment. c) Retain as many existing trees as possible. d) To provide habitat for locally indigenous plants and animals and contribute to biodiversity. e) To encourage landscaping that is appropriate to the natural, cultural, built and heritage characteristics of its locality. f) Improve the amenity of developments and adjoining areas by ensuring proposals adequately complement the proposed building forms and surrounding streetscape. g) Ensure that the proposed landscape designs provide functional attributes such as privacy, shade and wind protection, while discouraging the opportunity for crime and vandalism. Section 3.1 Controls 1. Existing trees and native vegetation are to be retained, protected and incorporated into the development proposal. This is particularly important for vegetation which forms part of a ridgeline tree canopy and in foreshore and riparian areas (with the exception of weed species). 2. Prior to the commencement of the design of a development existing trees should be identified. The design of a development should consider options to retain existing trees. 3. Existing indigenous trees within any building setback should be retained where possible, as an integral component of the site's landscaping, and to protect local habitats. 4. It is important that all plans accompanying the development application including engineering and hydraulics plans are consistent with the landscape plan. This is particularly important where trees are to be retained. For example storm water lines and excavation should not be within the drip line of trees to be retained. Note: Where trees are located outside the normal building envelope for a development, Council will give particular attention to the retention of those trees." 1. Part 4 of LDCP, concerning bushland and fauna habitat preservation, which includes the following relevant provisions concerning its application, as well as the following objectives and controls of relevance in this appeal: Applies to a) All land, which contains or is adjacent to bushland. b) All land that contains known or potential habitat for threatened species, populations or communities. c) Any Land zoned: • W1 - Natural Waterways • SP1 - Drainage • Land shown on the Environmental Significant Land Maps of the Liverpool LEP 2008. • E2 - Environmental Conservation • E3 - Environmental Management • Any land under the definition of a waterbody in the Liverpool LEP 2008. d) Development that has potential to directly or indirectly destroy or adversely affect bushland. Objectives a) To protect and manage natural assets in association with the development of land. b) To conserve the natural heritage of Liverpool. c) To maintain and improve the amenity and scenic qualities of Liverpool. d) To maintain and enhance the biodiversity and natural ecology of Liverpool. Controls 1. Bushland, particularly that identified as a threatened community or habitat for a threatened species shall be substantially retained and incorporated within a development. Clearing of bushland in association with any development shall be limited to the extent necessary to facilitate the safe and orderly use of the land. 2. Where impacts on threatened biodiversity are unavoidable, offsetting utilising the NSW Government BioBanking Scheme will be required where practicable. 4. Prior to the commencement of the design of a development, existing bushland and fauna habitat should be identified. The design of the development should consider retention of this bushland and fauna habitat. 5. Development shall not adversely impact on the long term viability of bushland. Existing connectivity and contiguity of bushland stands and fauna corridors shall be retained. 6. Where a proposal is likely to adversely impact on bushland, a Vegetation Management Plan (VMP) for the conservation of the bushland shall be submitted. The VMP shall be undertaken in accordance with pertinent NSW Office of Water Guidelines.

Contentions

1. The Applicant has proposed to clear some 1.04 Ha, or more than 85%, of native vegetation from the Subject Site, and it was agreed by the Parties, and their expert ecologists, that: 1. all of the native vegetation proposed to be cleared is an EEC (see above at [16]); and 2. the smaller amount of the vegetation that the Applicant proposes to clear, representing some 0.16 Ha, or less than 15% of the Subject Site, is exotic, non-native, vegetation.
2. In its Amended Statement of Facts and Contentions, the Respondent said that the Applicant's proposed development should be refused for the following reasons: 1. approval of the development would be inconsistent with the objectives and intent of Liverpool Council's proposed future zoning of the Subject lands as E2 Environmental Conservation (see above at [9]); 2. the Applicant had not demonstrated that the proposed development would not have a significant impact on threatened species, populations or ecological communities listed under the TSC Act; 3. the Applicant's proposed removal of vegetation from land identified as under the provisions of LLEP as "Environmentally Significant Land", and mapped as such within LLEP, was inconsistent with the provisions of both LLEP cl 7.6 relating specifically to environmentally significant land (see above at [45(2)]), and Part 1 of LDCP, and specifically: 1. Section 3, concerning, landscaping and the incorporation of existing trees (see above at [47(1)]); and 2. Section 4, concerning bushland and fauna habitat preservation (see above at [47(2)]). 1. notwithstanding the previous contentions, that the application to extinguish the restriction and covenant that burdens the Subject Land under the instrument imposed pursuant to s 88B of the Conveyancing Act 1919 should be rejected having regard to the environmental significance of the Subject Site and the circumstances of the case; 2. that approval of the Applicant's proposed development would result in an undesirable precedent. 3. that approval of the Applicant's proposed development is not in the public interest, having regard to the environmental significance of the site.
3. In its closing submissions the Respondent narrowed these contentions to following three principal issues: 1. that the Applicant had not demonstrated that the proposed development would not have a significant impact on threatened species, populations or ecological communities listed under the TSC Act; 2. that the Applicant's proposed removal of vegetation from land identified as under the provisions of LLEP as "Environmentally Significant Land", and mapped as such within LLEP, was inconsistent with the provisions of both cl 7.6 of LLEP and Sections 3 and 4 of Part 1 of LDCP. 3. that the application to extinguish the restriction and covenant that burdens the Subject Land under the instrument imposed pursuant to s 88B of the Conveyancing Act 1919 should be rejected having regard to the environmental significance of the Subject Site.
4. In its closing submissions, the Applicant said that in its view there were two principal issues requiring resolution in the appeal: 1. whether the Applicant's Proposed Development avoided and mitigated any negative impacts, and; 2. whether, what it characterised as, the Applicant's proposed partial clearing of the Subject Land for the purposes of a warehouse could be offset by the purchase of offsets from registered biobanking sites.
5. As concerns the first issue identified by the Applicant above at [51(1)] as being a principle issue, I do not find this to be a helpful framing of the matters in contention in this appeal because the Applicant's proposed development, which involves the removal of all vegetation on the Subject Site, does not avoid impacts, and nor does it seek to mitigate impacts. Rather the Applicant seeks to offset the impacts of its proposed development, and this is the subject of its second identified principal issue (see above at [51(2)]).
6. Having considered the submissions of the Parties above at [50] and [51], I have structured this judgment around the following questions in order to address the matters identified by the Parties as remaining in contention: 1. will the Applicant's proposed development have a significant impact on threatened species, populations or ecological communities listed under the TSC Act? 2. is the Applicant's proposed development, which includes earthworks, and the removal of vegetation, consistent with the provisions of: 1. cll 7.31 and 7.6 of LLEP concerning earthworks and environmentally significant land, respectively?; and 2. sections 3 and 4 of Part 1 of LDCP, concerning landscaping and the incorporation of existing trees, and bushland and fauna habitat preservation, respectively? 1. can the impacts on biodiversity of the Applicant's proposed development be offset by the purchase of offsets from registered biobank sites? 2. should the Court consent to the Applicant's proposal to lift the restriction as to use that burdens the Subject land under the s 88B instrument?
7. During the hearing the Court was assisted in its consideration of these questions by evidence from the following ecology expert witnesses: 1. Mr Robert Humphries, for the Applicant; and 2. Dr Teresa James, for the Respondent.
8. The hearing on this appeal was conducted across three sittings on the following dates: 1. 30 to 31 May 2019; 2. 25 July 2019; and 3. 8 October 2019.
9. The ecology experts were unable to conclude their expert evidence in this matter on 31 May 2019, nor on 25 July and 8 October.
10. As a consequence, the Parties agreed that the Court should rely on the testimony of the ecology experts within their written individual and joint reports in relation its determination of the appeal.

Will the Applicant's Proposed Development have a significant impact on threatened species, populations or ecological communities listed under the TSC Act?

1. The Applicant relies upon a Species Impact Statement (SIS) prepared by Cumberland Ecology which formed part of the expert report of the Applicant's ecology expert, Dr Humphries. The SIS assessed the ecological impacts of the Applicant's proposed development. It was prepared in April 2019, following a revision of an earlier SIS published in August 2018.
2. The SIS had been prepared in response to Chief Executive's Requirements (CERs) issued on 8 November 2017 by the NSW Office of Environment and Heritage, and to the requirements of the TSC Act.
3. The SIS had concluded that: 1. the proposed development would remove 1.04 ha of an EEC within the Subject Site that it had identified as Castlereagh Swamp Woodland EEC; 2. the EEC proposed for removal represented 38% of the EEC community within what it described as the "study area", and 6% of the community in what it referred to as "the locality"; 3. a total of 29 individuals of Acacia pubescens would be removed as a consequence of the proposed development, which was assessed to be: 1. a significant impact on the species within the Subject Site; 2. a moderate impact in the context of the so-called broader study area and in the locality; 3. a loss of 9% of the population within the study area and 1% of the population within the locality; 4. not a significant impact on the species. 1. the proposed development was unlikely to have a significant impact on any of the following nine threatened species: 1. Cumberland land snail; 2. the dusky woodswallow; 3. the eastern bent-wing bat; 4. the eastern false pipistrelle; 5. the eastern free-tail bat 6. the greater broad-nosed bat 7. the grey-headed flying Fox 8. the little bent-wing bat 9. yellow-bellied sheath-tailed bat

Potential impacts on threatened ecological communities

1. As noted above at [16], the ecology experts differed in their classification of the EEC vegetation on the Subject Site.
2. Mr Humphries said that he agreed with the EEC vegetation classification within the SIS as Castlereagh Swamp Woodland EEC. Mr Humphries said that he based his identification of the community on the following: 1. the position of the vegetation adjacent to Maxwell's Creek; 2. the soil type, and the topography of land, in the area, which he said included a depression in the landscape; 3. the structure and floristics of the vegetation community.
3. Mr Humphries added that, in his opinion: 1. the Scientific Committee's determination for the Castlereagh Swamp Woodland community had described the community as, generally, a woodland community with characteristic tree species, including Eucalyptus parramatensis and Melaleuca decora, which occurred together, with small billabongs or wetlands that may occur within the community. 2. the presence of Eucalyptus parramatensis, which is not identified as a diagnostic species for either the Shale Gravel Transition Forest or the Castlereagh Ironbark Forest EECs, was a significant factor in his assignment of the community to the Castlereagh Swamp Woodland EEC; 3. while the Subject Site does not currently contain the suite of moisture loving herbs and grasses that might otherwise be expected to occur within the Castlereagh Swamp Woodland EEC, this absence might be explained by the fact that the site may have become drier over the preceding 20 year period as a result of development and changed hydrology in the area. He said that, notwithstanding the absence of these groundcover species, it was his opinion that the community was best characterised as Castlereagh Swamp Woodland EEC.
4. Dr James said that, in her opinion: 1. the community was a representative of one of the so-called Castlereagh communities. She noted that these communities, which include both the Castlereagh Swamp Woodland and the Shale Gravel Transition Forest EECs, often intergraded in the landscape to create complex vegetation communities that are challenging to characterise and categorise. 2. in order for the community to be identified as Castlereagh Swamp Woodland it should contain sufficient soil moisture to support a ground flora and a shrub layer that is 'mesic' in nature, that is it should contain vegetation species in the ground floor and shrub layer that are water dependent. 3. the community on the Subject Site would best be identified as a Shale Gravel Transition Forest community and that her reasons for this conclusion were: 1. the fact that the soil in the area had a higher clay influence, and was more well-drained, than might be expected for a Castlereagh Swamp Woodland community; 2. her analysis of the number of characteristic species present on the Subject Site that was aligned more strongly with the characteristic species complex recorded for the Shale Gravel Transition Forest community, as published in the final determination of the Scientific Committee for this community;
5. Mr Humphries said that he agreed with Dr James' point above (at [64(1)]) in relation to the intergrading of so-called Castlereagh communities. He noted that a third vegetation community, identified as the Cooks River Castlereagh Ironbark Forest, was also a Castlereagh woodland community.
6. Mr Humphries added that all three of those communities occur on tertiary alluvium type soils, and he agreed with Dr James that they do intergrade within the landscape.
7. Notwithstanding the experts' agreement in relation to the intergrading nature of the three Castlereagh communities, the experts confirmed that: 1. they remained firm in their disagreement as to the characterisation of the vegetation community on the Subject Site. 2. they agreed that, whether the vegetation was characterised as Castlereagh Swamp Woodland or as Shale Gravel Transition Forest, both of these communities were EECs and were listed as such under the TSC Act.
8. In relation to the potential impact of the proposed development on the EEC within the Subject Site, the experts concluded as follows: 1. Mr Humphries said that, in his opinion, the loss of approximately one hectare of whichever EEC was determined to be on the Subject Site would not place the community at risk of extinction at a regional level; 2. Dr James said that the loss of approximately one hectare of the EEC community on the Subject Site would represent a significant impact on the community, whether that community were characterised as Castlereagh Swamp Woodland or as Shale Gravel Transition Forest because: 1. if the Court accepted that the community was correctly characterised as Castlereagh Swamp Woodland, the occurrence of this community on the Subject Land, including the occurrence on the Subject Site, represented the only local occurrence of that community, and therefore the proposed removal of the community would represent the loss of a large area of the community's local occurrence; 2. if the Court accepted that the community was correctly characterised as Shale Gravel Transition Forest, the removal of the community from the Subject Site, although a lesser scale of loss of that community compared to the Castlereagh Swamp Woodland, would nevertheless represent a large proportion of the local occurrence of the Shale Gravel Transition Forest community.
9. Dr James added that the threatened species assessment guidelines published by the NSW NPWS required that the assessment of impacts on an EEC should be made in the context of the local occurrence of the vegetation community. She said that whether the EEC were characterised as either Castlereagh Swamp Woodland EEC or Shale Gravel Transition Forest EEC, the loss of the vegetation on the Subject Site would represent, in her calculation, a loss of over 30% of the local occurrence of the community, which she regarded as a significant impact.
10. The Applicant's SIS had concluded that the potential impact of the proposed development on the EEC on the Subject Site would require compensatory measures to offset that loss. The SIS did not, however, specifically state whether or not that impact on the EEC was significant.
11. Notwithstanding the conclusion of Mr Humphries above at [68(1)], the ecology experts did agree in their joint report that the proposed development would have a significant impact on the EEC vegetation, irrespective of the identification of the community.
12. This agreement between the experts is consistent with the finding of the SIS that, however, one characterised the impact of the Applicant's proposed development on the EEC community, it was of a scale that would require compensation through the application of a offset arrangement, suggesting, in my assessment, that the impact was significant.

Potential impacts on threatened species

1. The Court was unable to receive oral evidence from the ecology experts on potential impacts of the proposed development on threatened species. As a consequence the Court has relied on the evidence of the experts in their individual and joint reports.
2. The Applicant's SIS had been prepared in response to CERs issued by the NSW NPWS (see above at [58]), and the CERs had identified a number of threatened species for which surveys must be conducted by the authors of the SIS.
3. The list of threatened species included, inter alia, three species that were the subject of contentions identified by the Respondent, being: 1. Acacia pubescens (also known as the Downy Wattle) listed as a vulnerable species under the TSC Act; 2. Hibbertia fumana, a species of flora listed as critically endangered under the TSC Act; and 3. Meridolum corneovirens (also known as the Cumberland land snail), listed as an endangered species under the TSC Act.
4. The CERs also required certain specific surveys should be undertaken in relation to the potential presence of Hibbertia fumana on the Subject Land. Specifically the CERs required (in its section 4.3), that: Hibbertia fumana is cryptic and difficult to detect, particularly when not in class. As such, surveys must be undertaken whilst the species is budding or flowering, which usually occurs between September and December. Targeted survey should be undertaken using field traverses as per the "NSW guide to survey Inc threatened plants" …. And samples should be sent to the Royal Botanic Garden Sydney for confirmation.
5. The Applicant's SIS: 1. reported that the Subject Site contained: 1. 29 individuals, and 1.04 Ha of habitat, of Acacia pubescens, and the impact of the Proposed Development on the species would be "minor"; 2. potential habitat for the Cumberland land snail. The SIS recorded that although three shells of this species were found during the survey, no live individuals were recorded. However it also noted that previous ecological surveys had recorded both suitable habitat and the presence of live Cumberland land snails on the Subject Site. It concluded that it is unlikely that the potential loss of habitat within the Subject Site would have a significant impact on the species; 1. recorded that: "One species identified in the CERs could not be surveyed for during the appropriate time of year. This was the species Hibbertia fumana, which is a cryptic species that should be surveyed between September and December".
6. The SIS also stated that: 1. the botanists who had undertaken the surveys were familiar with this species and had undertaken previous surveys for it at the only two known locations of Hibbertia fumana, and said that: "It is considered that adequate identification characters were present at the time of the survey for identification of Hibbertia fumana".
7. In their joint report tendered as evidence at the hearing, the ecology experts: 1. agreed that: 1. the Applicant's proposed development would have a significant impact on local populations of both the Downy Wattle and the Cumberland land snail; 2. the proposed development was unlikely to have a significant impact on Cumberland land at a locality and regional level. 1. disagreed that: 1. the species Hibbertia fumana had been adequately targeted in surveys undertaken in relation to the Applicant's SIS; and 2. the SIS achieved compliance with the requirement in the CERs section 4.3 concerning the need for the SIS to included targeted surveys of Hibbertia fumana.
8. Having reviewed the Applicant's SIS and the evidence of the ecology experts in their joint report: 1. I accept the agreement of the experts that the Applicant's proposed development would have a significant impact on local populations of both the Downy Wattle and the Cumberland land; 2. I find that: 1. the species Hibbertia fumana had not been adequately targeted in surveys undertaken in relation to the Applicant's SIS, for the straight forward reason that no surveys were undertaken of the species at the correct time of year and the CERs specified that those surveys must be undertaken, and as a consequence; 2. the SIS has not complied with the requirement in the CERs section 4.3 concerning the need for the SIS to included targeted surveys of this species.

Is the Applicant's Proposed Development consistent with the provisions of cll 7.31 and 7.6 of LLEP concerning earthworks and environmentally significant land, respectively?

1. As identified above at [13], the Applicant seeks consent for earthworks, including vegetation removal, for the purpose of a future warehouse development.
2. The Applicant submits, uncontested by the Respondent, that its proposed earthworks and vegetation removal are a permissible use of the Subject Site, as the works are asserted to be for the purpose of a warehouse, which is a permissible land use in the IN3 zone (see above at [45(1)(b)]).
3. I note that Acting Commissioner Adam and Acting Commissioner Douglas in Timpag Investments Pty Limited v Liverpool City Council [2018] NSWLEC 1296, (referred to hereafter as the Timpag decision) considered the question of the permissibility of a near identical application for earthworks to be undertaken for the purpose of a future warehouse in circumstances where no consent was sought for a warehouse as part of that application.
4. The Commissioners in Timpag asked (at [64]): "Is the mere inclusion of a purpose sufficient to bring the proposal under the ambit of item 3 in Zone IN3 and thus be a permissible development in the zone?"
5. The Commissioners in Timpag, having raised this question, did not seek to resolve it, but observed (at [65]) that "the proposal leaves much open for future decisions", before proceeding to determine the application on the assumption that the works were permissible.
6. The Respondent has not raised the matter of the permissibility of the Applicant's proposed development as a contention in this appeal.
7. As a consequence, while I note the question posed by the Commissioners in Timpag, for the purposes of the current appeal I rely on the uncontested submission of Counsel for the Applicant that its application, characterised as seeking consent for earthworks for the purposes of a future warehouse development, is a permissible land use on the Subject Land which is zoned IN3.
8. The grant of consent for the Applicant's proposed earthworks is subject to the provisions of cl 7.31 of LLEP (see above at [45(3)]).
9. The objectives of cl 7.31 were identified (at [45(3)]) as being to: 1. ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, 2. allow earthworks of a minor nature without requiring separate development consent
10. Clause 7.31(2) provides that earthworks may be undertaken without consent in circumstances where: 1. the work is exempt development under this Plan or another applicable environmental planning instrument, or 2. the work is ancillary to other development for which development consent has been given.
11. Neither of the circumstances identified above at [90] are satisfied by the Applicant's development application, and so the Applicant's proposed earthworks require consent.
12. Relevantly, cl 7.31(3) of LLEP requires that before granting development consent for earthworks, the consent authority, or the Court on appeal, must consider certain matters including: … (g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.
13. The Parties agreed that the Subject Site is mapped as environmentally significant land on the Environmentally Significant Land Map (sheets ESL-10 and ESL-13) within LLEP.
14. As a consequence, I am satisfied that the Subject Site is an "environmentally sensitive area" for the purposes of cl 7.31(3)(g), as a consequence of it being mapped as on "environmentally significant land" on the Environmentally Significant Land Map within LLEP.
15. As identified above at [45(2)], the provisions of cl 7.6 of LLEP guide the consent authority in its determination of an application to carry out development on "environmentally significant land".
16. The objectives of cl 7.6 of LLEP are to: (a) maintain bushland, wetlands and wildlife corridors of high conservation value, (b) identify areas of significance for revegetation to connect to or buffer bushland, wetlands and wildlife corridors, (c) protect rare and threatened native flora and native fauna, (d) ensure consideration of the significance of vegetation, the sensitivity of the land and the impact of development on the environment prior to the giving of any development consent.
17. Clause 7.6 requires that the consent authority must consider such of the matters identified at cl 7.6(3) as are relevant to the determination of an application, including: (a) the condition and significance of the vegetation on the land and whether it should be substantially retained in that location, (b) the importance of the vegetation in that particular location to native fauna, (c) the sensitivity of the land and the effect of clearing vegetation.
18. The Applicant submitted that Council had abandoned the application of cl 7.6 of LLEP, and that the Court should give little or no weight to the provisions of the clause in evaluating the Applicant's development application.
19. In its closing written submissions, the Applicant further submitted that: 1. the findings of McClellan CJ in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [92] (hereafter referred to as Stockland), concerning the weight to be afforded to a policy in determining a development application, might be relied upon to support its submission above at [98]; 2. the findings of Preston CJ in Webhe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (hereafter referred to as Webhe) at [47], concerning the fourth way that might be followed to demonstrate that compliance with a development standard is unreasonable or unnecessary, might also be relied upon to support its submission above at [98].
20. I do not embrace these submissions of the Applicant for the following reasons: 1. the decision of McClellan CJ in Stockland related to the weight that might be given to a planning policy for the purposes of assessment under the former s 79C of the EP&A Act. However, the provisions of cl 7.6 of are not a planning policy, but rather are a provision of statute. Such statutory provisions are not, in my assessment, subject to the same opportunities for interpretation on matters of weight as his Honour identified in Stockland as might be applied to a planning policy of a Council. 2. in relation to the Applicant's submission concerning the judgment of Preston CJ in Webhe, I note that the considerations in that case related to circumstances in which an Applicant might seek a variation to a development standard through the application of State Environmental Planning Policy No 1 Development Standards (SEPP 1). The principles identified in Webhe have more recently been applied by the Court, and others, in the consideration of Applicant requests to vary a development standard under cl 4.6 of the standard instrument. In the current appeal, the Applicant has submitted no written request to vary a development standard in relation to cl 7.6 of LLEP or any other provision of LLEP; 3. for reasons provided below in relation to my consideration of the objectives of the IN3 Heavy Industry zoning of the Subject Land (see below at [142] and following), I do not accept the Applicant's submission that the grant of consent for development on land with an IN3 zoning, in circumstances where that land contains areas mapped as environmentally significant land, should be interpreted as an abandonment of the provisions of cl 7.6 by the Respondent Council. Indeed, the circumstances of the current appeal in which the Respondent has vigorously contended the appeal on the basis of, inter alia, the provisions of cl 7.6 would suggest anything other than an abandonment of the provisions of that clause.
21. Consequently, and noting my observations above at [100], I will consider each of the matters in cl 7.6(a), (b) and (c) in turn.

The condition and significance of the vegetation on the land and whether it should be substantially retained in that location.

1. The Subject Site contains an EEC vegetation community, which the BC Act defines (see above at [29]) as a vegetation community that is facing a very high risk of extinction in Australia in the near future, as determined in accordance with criteria prescribed by the regulations. The BC Act also provides under s 4.5(4) that if an ecological community is not eligible to be listed in any category in accordance with this section on the basis of the risk of extinction in Australia, then it is eligible to be listed in accordance with this section on the basis of the risk of extinction in New South Wales.
2. The BC Regulation prescribes the following criteria for listing a community as an EEC: "The relevant criteria for endangered ecological communities set out in this Division apply to a determination by the Scientific Committee that an ecological community is eligible to be listed as an endangered ecological community on the basis that - (a) it is facing a very high risk of extinction in Australia in the near future, and (b) it is not eligible to be listed as a critically endangered ecological community."
3. The evidence of the ecologists was that the vegetation on the Subject Land, including the Subject Site, was an EEC that was in good condition, notwithstanding the impacts of rubbish on the Subject Land.
4. The vegetation forms part of a corridor of vegetation across the Subject Land. The corridor provides connectivity between vegetation on Maxwell's Creek and the vegetation on Lot 10 across Lyn Parade.
5. The corridor of vegetation through the Subject Land currently has a length of around 400m along the northern boundary of the Subject land, and includes: 1. a narrower corridor element of some 180m length and 50m width at its eastern portion, all of which is proposed by the Applicant to be retained; and 2. a broader corridor element that is some 220m in length along its northern boundary, and between 100m and 120m wide in breadth. That includes the Subject Site.
6. The removal of the vegetation on the Subject Site will extend the narrower, 50m wide, corridor element from 180m to 340m in length. The broader corridor element will be reduced to around 60m in length along its northern boundary.
7. The corridor provides connectivity and refuge functions for biodiversity between Maxwells Creek and Lot 10 on the other side of Lyn Parade.
8. Dr James, within her individual expert report, said that, notwithstanding the impacts of rubbish dumping and infestation of the Subject Land by African Love Grass, the vegetation in the corridor "is resilient and remains in moderate to good condition and is viable".
9. Within the joint report of the ecology experts: 1. Dr James stated that: 1. the vegetation on Lot 11 is a diverse remnant in generally good condition with important connectivity/remnant values both along Maxwell's Creek and between the creek and Lot 10 Lyn Parade; 2. the proposal is likely to result in a net loss of biodiversity and corridor values. 1. The experts said that they disagreed that "insufficient information is provided with the proposal to warrant dismissal of biodiversity and corridor values commensurate with recognition as environmentally sensitive land (ESL). 2. Mr Humphries did not directly dispute Dr James' joint report evidence, cited above at [(1)], but he did state that: "It is unclear whether insufficient information has been provided within the proposal to warrant dismissal of biodiversity and corridor values commensurate with recognition as ESL as there is no publically available information as to how the ESL was originally compiled or how it has been maintained to retain its relevance to the above clauses."
10. Having considered the evidence of the ecology experts, I find that: 1. I accept the evidence of Dr James, uncontested by Mr Humphries, that the condition of the vegetation remnant on the Subject Site "is resilient and remains in moderate to good condition and is viable", as stated in her individual report, and is "in generally good condition", as stated in the ecology experts' joint report. 2. I accept the agreed evidence of the ecologists that the vegetation on the Subject Site is an EEC and is mapped as environmentally significant land, and I conclude that the vegetation is, indisputably, significant. 3. I accept the evidence of Dr James, uncontested by Mr Humphries, that the vegetation on the Subject Land, which includes the vegetation on the Subject Site, holds important connectivity/remnant values both along Maxwell's Creek, and between the creek and Lot 10 Lyn Parade.
11. On the basis of my findings above at [111], I conclude that the vegetation on the Subject Site should be substantially retained in that location because it: 1. is substantially an EEC; 2. is resilient and remains in moderate to good condition, and is viable; 3. is environmentally significant, and; 4. holds important ecological connectivity value in relation to the vegetation along Maxwell's Creek and the vegetation Lot 10 Lyn Parade.

The importance of the vegetation in that particular location to native fauna

1. As noted above at [77(1)(b)], the Applicant's SIS had said that the Subject Site contained potential habitat for the Cumberland land snail, and also recorded that although three shells of this species were found during the author's SIS survey no live individuals were recorded.
2. The SIS also noted that previous ecological surveys undertaken by several specialist consultants had recorded both suitable habitat and the presence of live Cumberland land snails on the Subject Site.
3. The agreed evidence of the ecology experts was that the vegetation on the Subject Land, including that on the Subject Site, provided potential habitat for the Cumberland land snail.
4. As stated above at [80(1)], I have accepted the agreement of the experts that the Applicant's proposed development would have a significant impact on a local population of the Cumberland land snail, but also accept that their agreement, recorded above at [79(1)(b)], that the proposed development was unlikely to have a significant impact on the Cumberland land snail species at a broader locality and regional level.

The sensitivity of the land and the effect of clearing vegetation

1. As previously stated, I have accepted the agreed evidence of Dr James and Mr Humphries that the vegetation of the Subject Site is an EEC, and that the Applicant's proposed development would have the effect that around 1Ha of vegetation that, by definition, is facing a very high risk of extinction in Australia (or NSW) in the near future, would be lost.
2. I have also accepted that, notwithstanding the fact that the vegetation on the Subject Land, including the Subject Site, is impacted by rubbish dumping and an invasive species, the vegetation community is resilient, and remains viable (see above at [109] and [110(1)]).

Conclusion concerning compliance with cll 7.6 and 7.31 of LLEP

1. Having considered (at [102] to [118], above) the matters set out in cl 7.6(3) of LLEP, I have: 1. also addressed the provision of cl 7.6(1)(c) that consideration be given to the significance of vegetation, the sensitivity of the land and the impact of development on the environment prior to the giving of any development consent; 2. concluded that the Applicant's proposed development: 1. does not maintain bushland and wildlife corridors of high conservation value, which is an objective of cl 7.6 of LLEP; and 2. does not protect rare and threatened native flora and native fauna, which is also an objective of cl 7.6 of LLEP; 1. further concluded that the Applicant's proposed development: 1. does not comply with the provisions of cl 7.6 of LLEP for reasons provided above at [2]; 2. has the potential for adverse impacts on an environmentally sensitive area, which is a matter I am required to consider under the provisions of cl 7.31(3)(g) of LLEP; 3. does not ensure that the Applicant's proposed earthworks, for which development consent is required, will not have a detrimental impact on environmental functions and processes, or features of the surrounding land, being the potential impacts on the ecological connectivity functions and processes between vegetation along Maxwell's Creek and the vegetation on Lot 10 Lynn Parade, and so is in contravention of the objective of cl 7.31(1)(c) of LLEP; 4. for reasons provided above (at [a], [b] and [c]), does not comply with the provisions of cl 7.31 of LLEP; 1. finally concluded that, because it does not comply with the provisions of both cll 7.6 and 7.31 of LLEP, the Applicant's Proposed Development should not be approved.

Is the Applicant's Proposed Development compliant with the provisions of sections 3 and 4 of Part 1 of LDCP, concerning landscaping and the incorporation of existing trees, and bushland and fauna habitat preservation, respectively?

1. The provisions of Part 1 Section 3 of LDCP were provided above at [47(1)], and the provisions of Part 1 Section 4 of LDCP were provided above at [47(2)].
2. I will address the responsiveness of the Applicant's Proposed Development to the controls within these two sections of LDCP in turn.

Is the Applicant's Proposed Development compliant with the provisions of section 3 Part 1 of LDCP, concerning landscaping and the incorporation of existing trees into the Proposed Development.

1. The Applicant has proposed earthworks including the removal of around 1 Ha of vegetation that is EEC vegetation.
2. Section 3 in Part 1 of LDCP provides the following controls that apply to the proposed development: "1. Existing trees and native vegetation are to be retained, protected and incorporated into the development proposal. This is particularly important for vegetation which forms part of a ridgeline tree canopy and in foreshore and riparian areas (with the exception of weed species). 2. Prior to the commencement of the design of a development existing trees should be identified. The design of a development should consider options to retain existing trees. 3. Existing indigenous trees within any building setback should be retained where possible, as an integral component of the site's landscaping, and to protect local habitats. 4. It is important that all plans accompanying the development application including engineering and hydraulics plans are consistent with the landscape plan. This is particularly important where trees are to be retained. For example storm water lines and excavation should not be within the drip line of trees to be retained."
3. As concerns the first control, and having considered the evidence before me in this appeal: 1. the Proposed Development does not seek to retain or protect any trees on the Subject Site; 2. the Proposed Development, which seeks consent for earthworks, also seeks consent to remove vegetation from the entirety of the Subject Site, which is located within the broader Subject Land. When viewed from the broader perspective of that Subject Land, the proposed development does seek to retain, protect and incorporate some of the existing trees and native vegetation into the Proposed Development; 3. the control is not specific as to the extent that existing trees and native vegetation are to be retained, protected and incorporated into the development proposal; 4. notwithstanding [3], the purpose of the controls within LDCP must be to provide mechanisms for the achievement of the objectives within the provision to which they both relate; 5. the objectives of section 3 of Part 1 of LDCP, which concerns concerning landscaping and the incorporation of existing trees into the proposed development include the following objective, Objective (c), that is of relevance to the interpretation of the first control: c) Retain as many existing trees as possible. 1. Objective (c), does not seek the retention of all trees, but rather seeks the retention of "as many existing trees as possible". In my assessment, the first control must be read in this context, and does not require the retention of all trees; 2. the Applicant's proposed development, while seeking consent for earthworks including the removal of all trees on the Subject Site for the purpose of a future warehouse, does seek to retain, protect and incorporate the remaining vegetation on the Subject Land into the proposed development; 3. if the Applicant's proposed use of the Subject Site, being earthworks for the purpose of a future warehouse, is permissible, and if consent were granted for those earthworks for that purpose, then the removal of all vegetation on the Subject Land would be an expected consequence of any consent; 4. in the circumstance described above at [8], and given that the remnant vegetation on the balance of the Subject Land is proposed for retention, protection and incorporation into the proposed development, I find that the Applicant's proposed development does not contravene the first control.
4. As concerns the second control, and having considered the evidence before me in this appeal, I have concluded that: 1. the Applicant has identified existing trees on the Subject Site prior to the commencement of the design of the development, and; 2. the design of a development has considered options for the retention of existing trees; 3. given the findings above at [1] and[2], I conclude that the proposed development is compliant with the second control.
5. As concerns the third control, and having considered the evidence before me in this appeal, I have concluded that: 1. the Applicant does not seek consent for any building as part of its Proposed Development. While the Applicant has tendered plans that illustrate the possible location of future warehouse buildings, along with plans for earthworks and cut and fill, there are no setbacks proposed against which the control might be assessed; 2. as a consequence of my finding at [1], I conclude that the third control is not relevant in my determination of the appeal.
6. As concerns the fourth control, and having considered the evidence before me in this appeal, the Applicant's engineering plans are consistent with each other, and with indicative landscape plans, and plans with respect to the retention of vegetation on the Subject Land. As a consequence, I conclude that the Applicant's Proposed Development is compliant with this fourth control.
7. Having considered the Applicant's Proposed Development in relation to the above controls, I am satisfied that the Proposed Development is compliant with the provisions of section 3 of Part 1 of LDCP.

Is the Applicant's Proposed Development compliant with the provisions of section 4 of Part 1 of LDCP, concerning bushland and fauna habitat preservation?

1. The provisions of Section 4 in Part 1 of LDCP were provided above at [47(2)], and include following controls that apply to the Proposed Development: "1. Bushland, particularly that identified as a threatened community or habitat for a threatened species shall be substantially retained and incorporated within a development. Clearing of bushland in association with any development shall be limited to the extent necessary to facilitate the safe and orderly use of the land. 2. Where impacts on threatened biodiversity are unavoidable, offsetting utilising the NSW Government BioBanking Scheme will be required where practicable. 4. Prior to the commencement of the design of a development, existing bushland and fauna habitat should be identified. The design of the development should consider retention of this bushland and fauna habitat. 5. Development shall not adversely impact on the long term viability of bushland. Existing connectivity and contiguity of bushland stands and fauna corridors shall be retained. 6. Where a proposal is likely to adversely impact on bushland, a Vegetation Management Plan (VMP) for the conservation of the bushland shall be submitted. The VMP shall be undertaken in accordance with pertinent NSW Office of Water Guidelines."
2. As concerns the first control, and having considered the ecology expert evidence before me in this appeal: 1. the Subject Land, including the Subject Site, includes vegetation that the ecology experts have confirmed is an EEC, and is, as a consequence, a threatened community; 2. the Subject Land, including the Subject Site, includes vegetation that the ecology experts have confirmed is the habitat of several threatened species including the Cumberland land snail and the Downy Wattle; 3. notwithstanding the Applicant's proposal to remove around 1 Ha of the EEC vegetation that provides potential habitat for threatened species, the Applicant has also proposed the retention of some vegetation on Subject Land, which includes an EEC and habitat for the same threatened species, and the area of that vegetation exceeds the area of vegetation and habitat proposed to be removed. Consequently, I must conclude that the Applicant does propose to substantially retain and incorporate the bushland on the Subject Land within its Proposed Development 4. as confirmed above (at [124(8)]), if the Applicant's proposed use of the Subject Site, being earthworks for the purpose of a future warehouse, is permissible, and if a consent were granted for those earthworks for that purpose, then the removal of all vegetation on the Subject Site would be an expected consequence of any consent; 5. in the circumstances identified above in [4], I must conclude that the Applicant's proposed clearing of bushland that forms part of its Proposed Development is limited to the extent necessary to facilitate the safe and orderly use of the land; 6. for reasons provided above at [1] to [6], I conclude that the Applicant's proposed development is compliant with the first control;
3. As concerns the second control, and having considered the evidence of the ecology experts in this appeal, I accept that the Applicant has proposed offsetting utilising the NSW Government BioBanking Scheme in relation to its proposed removal of vegetation that includes a EEC and the habitat of threatened species. On this basis I conclude that the Proposed Development is compliant with the provisions of the second control;
4. As concerns the fourth control, and having considered the evidence of the ecology experts I am satisfied that the existing bushland and fauna habitat on the Subject Land, including the Subject Site, was identified prior to the commencement of the design of the Proposed Development. Further, and notwithstanding that the Applicant proposes the removal of all vegetation from the Subject Site, I accept that the Applicant did consider retention of this bushland and fauna habitat in the design of its Proposed Development;
5. As concerns the fifth control, and having considered the evidence of the ecology experts: 1. I have previously found (see above at [70]) that the Applicant's proposed development will have a significant impact on EEC vegetation on the Subject Site 2. as a consequence of this significant impact, the Proposed Development may adversely impact on the long term viability of the bushland vegetation on the Subject Land; 3. I have also noted that the width of the vegetation corridor from Lyn Parade to Maxwell's Creek will extend the narrower corridor width of 50m from 180m, or 45% of the lot's length, to 340m, or 85% of the lot's length, along its northern boundary (see above at [107]). 4. I have also accepted with the evidence of Dr James, uncontested by Mr Humphries, that the removal of vegetation on the Subject Site, and the related reduction in the width of the vegetation corridor that provides ecological connectivity between the vegetation along Maxwells Creek and the EEC vegetation on Lot 10 Lyn Parade, will reduce the effectiveness of the vegetation in providing an ecological corridor through the Subject Site; 5. as a consequence of the points above at [1] to [4], I conclude that: 1. the Applicant's Proposed Development, which will remove EEC vegetation on the Subject Land, will, as a consequence, reduce the scale and effectiveness of the connectivity provided by that vegetation to local flora and fauna; 2. the Applicant's Proposed Development is not compliant with the provisions in the fifth control of Section 4 in Part 1 of LDCP, as it will, in my assessment, adversely impact: 1. the long term viability of the bushland on the Subject Land: and 2. the existing connectivity of the bushland stand on the Subject Site and Subject Land; and 3. fauna corridors.
6. Under the provisions of s 4.15(3A)(2) of the EP&A Act, if a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority, or the Court on appeal, if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards, is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.
7. The relevant objectives in relation to the fifth control in Section 4 of Part 1 of LDCP are to: "a) protect and manage natural assets in association with the development of land. b) conserve the natural heritage of Liverpool. … d) maintain and enhance the biodiversity and natural ecology of Liverpool."
8. Having considered the Applicant's Proposed Development as an alternative that may be a reasonable solution in terms of the fifth control, I find that: 1. while it may manage, it does not protect, natural assets in association with the development of the Subject Site, nor of the Subject Land; 2. it does not conserve the natural heritage of Liverpool, and; 3. the biodiversity and natural ecology of Liverpool will not be maintained and enhanced as a consequence of the Proposed Development, even in circumstances where the Applicant's biodiversity offset arrangement were to be adopted, because: 1. the loss of the EEC on the Subject Site will permanently reduce the area of a vegetation community that, by definition, is facing a high risk of extinction in Australia (or NSW) in the near future; 2. the loss of the EEC on the Subject Site will permanently reduce the habitat of at least two threatened species, that is the habitat of the Cumberland Land Snail and the Downy Wattle; 3. the reduced width of the connectivity provided by the vegetation on the Subject Land, including the Subject Site, will, in my assessment, permanently and negatively affect the quality of the connectivity provided by the vegetation across the Subject Site as part of the corridor through the Subject Land; 1. as a consequence of my findings above at (1), (2) and(3), the Applicant's Proposed Development remains not compliant with the fifth control in Section 4 of Part 1 of LDCP, and does not provide a reasonable alternative that would otherwise satisfy the objects of that control;
9. As concerns the sixth control, and having considered the evidence of the ecology experts in this appeal, I am satisfied that: 1. the controls require that: 1. where a proposal is likely to adversely impact on bushland, a Vegetation Management Plan (VMP) for the conservation of the bushland shall be submitted, and; 2. the VMP shall be undertaken in accordance with pertinent NSW Office of Water Guidelines. 1. the evidence before me does not contain, to any extent that I have been able to identify, a VMP prepared in accordance with pertinent NSW Office of Water Guidelines, the most recent version of which was published in 2012; 2. further, the evidence of both of the ecology experts did make mention of the need for, and non-production by the Applicant, of the required VMP; 3. notwithstanding the observations made above at [2] and [3], the Applicant has proposed that, should the Court be minded to grant consent to its proposed development, it would seek to offset the loss of EEC vegetation utilising the NSW Government BioBanking Scheme, and this would require the preparation of a management plan for the remnant vegetation that would remain uncleared on the Subject Land. 4. in the circumstances described above at [4], where the specific requirement for the Applicant to submit a VMP for the conservation of the bushland could be addressed in the context of an offsetting arrangement utilising the NSW Government BioBanking Scheme, I am satisfied that this provision can be addressed through the imposition of a condition of consent in fulfilment of both the control and the objectives of the control;
10. Having considered the controls in Section 4 of Part 1 of the LDCP, I find that the Applicant's Proposed Development is generally compliant with those controls, other than in respect of the fifth control in that section (see above at [136(4)]).

Conclusion concerning sections 3 and 4 of Part 1 of LDCP

1. As a consequence of my findings above at [128] and [138], I find that: 1. while the Applicant's Proposed Development is generally compliant with the controls in both sections 3 and 4 of Part 1 of LDCP, it is not compliant with the fifth control in section 4; 2. the finding above at [1], provides a further, though less determinative, reason, for concluding that the Applicant's Proposed Development should not be approved, in addition to those identified above at [119].

Can the impacts on biodiversity of the Applicant's Proposed Development be offset by the purchase of offsets from registered biobank sites?

1. As I have found that the Applicant's proposed development does not satisfy the provisions cll 7.31 and 7.6 of LLEP, and is not compliant with the fifth control in section 4 of Part 1 of LDCP, and as I have concluded that the Proposed Development should be approved, it is unnecessary for me to further consider whether the impacts on biodiversity of the Applicant's proposed development should be offset by the purchase of offsets from registered biobank sites.

Should the Applicant's proposal to remove the s88B instrument that burdens the Subject Land be approved?

1. As I have found that the Applicant's proposed development does not satisfy the provisions in cll 7.31 and 7.6 of LLEP, and the fifth control section 4 of Part 1 of LDCP, and as a consequence should be approved, the Applicant's proposal to remove the s 88B instrument that burdens the Subject Land does not require further consideration in this appeal.

Land use zoning objectives

1. Under the provisions of cl 2.3(3) of LLEP the Court is required to have regard to the objectives for development in the relevant IN3 Heavy Industrial zone when determining the Applicant's development application, in respect of Subject Land within that IN3 zone.
2. At the hearing, the Applicant submitted that its proposed development should be approved because to do otherwise would be contrary to the intent of the zoning of the Subject Land, including the Subject Site, and contrary to the objectives of that zone.
3. I do not embrace this interpretation, and application, of the IN3 zoning, and its objectives, to the Subject Site and the Subject Land.
4. The Applicant's Proposed Development is for earthworks, including the removal of vegetation, on the Subject Site, and it has proposed the retention of the remaining EEC vegetation on the Subject Land as an offset for the removal of the vegetation on the Subject Site.
5. In my assessment, the Applicant, by the nature of its own proposed development, has recognised that retention, and indeed protection and good management, of remnant native vegetation on land zoned that is IN3 Heavy Industrial is a legitimate purpose for such land in circumstances where that vegetation is environmentally significant, including that the vegetation is listed as an EEC.
6. As noted by the Parties (see above at [9]) there has been a Planning Proposal for the Subject Land to be re-zoned E2 Environmental Conservation. However, the Applicant has submitted at this hearing that that Planning Proposal is neither certain nor imminent, and has said that the Court should afford it little weight. Indeed, consideration of the Planning Proposal has not been a factor in the determination of the Applicant's Proposed Development in this appeal.
7. I also note that the consent for the subdivision which created the Subject Land was itself a consent that recognised that retention and management of remnant EEC vegetation for environmental purposes, was a legitimate use of land that is otherwise zoned for industrial purposes.
8. The retention of the EEC vegetation on the Subject Site, in recognition of its environmental sensitivity and significance is, in my assessment, not antithetical to the current zoning of the Subject Land, including the Subject Site. This is evidenced by previous consents granted in respect of the Subject Land.
9. I leave consideration of any proposed re-zoning of the Subject Land to others at another time and in another place.
10. However, for the purposes of this appeal, having had regard to the objectives for development in the IN3 zone applicable to the Subject Site in determining the Applicant's proposed development, I see no reason that this zoning should, per se: 1. preclude the retention of native vegetation on the Subject Site, particularly in circumstances where that vegetation is documented to contain floristics and other identifiable qualities that merit its recognition: 1. as being "environmentally significant land" under LLEP, and; 2. as an EEC under the TSC Act, and; 1. give rise to any difficulty in the Court determining the Applicant's Proposed Development by way of refusal because it is not compliant with relevant provisions of LLEP and LDCP, including cll 7.6 and 7.31 of LLEP, and a control under section 4 of LDCP.
11. In this regard, I note the findings of McClellan CJ in BPG Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 (hereafter referred to as BPG), in which the former Chief Judge concluded (at [118] and [119]): "[118] In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. [119] However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project."

Consistency with the Timpag decision

1. As identified above at [83], the Parties had drawn to the Court's attention, the decision of the Commissioners in Timpag.
2. While not relying in any way on the decision of the Commissioners in Timpag as a basis for my determination in the current appeal, I note that the determination in this appeal, and the reasons for that determination, are broadly consistent with the findings of the learned Commissioners in Timpag, including the following findings of the Commissioners in that case: 1. at [35], in which the Commissioners state: "We had concerns that there may be doubts as to whether the proposed development was permissible. This was not a matter which had been raised in the Council's Statement of Facts and Contentions (SOFAC)." 1. at [65], in which the Commissioners state: "The proposal still leaves much open for future decisions. The details of the warehouse design are absent, and a timetable for its development is also absent. If the development application was to be approved and the clearing and levelling were carried out, the outcome is clear - there would be a level area of 1 ha, devoid of any form of vegetation. The site might be left in that condition for an unspecified period until a warehouse were constructed. The uncertainty of when or if development of a warehouse would occur, as distinct from the certainty of loss of a stand of an endangered ecological community is a matter which might provide grounds for refusing the application to rely on the amended plans. Although the purpose is stated to be for a warehouse, it would be possible for a future applicant to lodge a new development application to apply for another type of development permissible under IN3." 1. at [73], in which the Commissioners state: "The application is for earthworks and levelling. If consent were granted it would not, either explicitly or implicitly, constitute an approval for a future warehouse, which would need to be the subject of a separate development application. However, we acknowledge that if the site were to be cleared and levelled the impediments to making such an application would be substantially lessened." 1. at [79], in which the Commissioners state: "Lots 10 and 11 both contribute mutual support for floral pollination and also act as habitat as part of a chain in a corridor for native fauna. The impact on these values is part of our consideration." 1. at [175], in which the Commissioners state: "We consider that the evidence for declining condition and loss of viability of the ecosystem on lot 10 is not convincing and prefer Ms James' opinion that the stand, as of the present, remains viable." 1. at [176], in which the Commissioners state: "We consider it probable that interactions between Lot 10 and Lot 11 occur and may be important to the viability of both Lot 10 and Lot 11 in the longer term." 1. at [179], in which the Commissioners state: "We have concluded that the earthworks proposed will have a significant detrimental impact because a stand of the endangered ecological community (CRC/CI Forest) which is in the form of vegetation in good condition and in which ecological processes are occurring which contribute to the maintenance of its viability. This is unacceptable." 1. at [170], in which the Commissioners also note the findings of McClellan CJ in BPG, and go on to state that: "There will be circumstances where it would be inappropriate to grant approval for a proposal otherwise permissible with consent, because of environmental considerations (BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [115-119])."

Conclusions

1. Having considered the submissions of the Parties, and the evidence of the experts, I am satisfied that: 1. as agreed by the ecology experts (see above at [71]), the proposed development would have a significant impact on vegetation that is an EEC, irrespective of the identification of that EEC community within the Subject Site and the Subject Land; 2. the Applicant's proposed development would have a significant impact on local populations of both the Downy Wattle (Acacia pubescens), and the Cumberland land snail (Meridolum corneovirens) (see above at [80(1)]; 3. the species Hibbertia fumana has not been adequately targeted in surveys undertaken in relation to the Applicant's SIS, and as a consequence: 1. the Applicant's SIS has not complied with the requirement in the CERs section 4.3 concerning the need for the SIS to included targeted surveys of the species Hibbertia fumana; 2. the Applicant's SIS has not satisfied the requirements of the Chief Executive of NPWS, and is not a sufficient basis to confirm that there will not be a significant impact on the species Hibbertia fumana; 1. the Applicant's proposed development does not comply with the provisions of cl 7.6 of LLEP for reasons provided above at [119(2)]; 2. the Applicant's proposed development does not comply with the provisions of cl 7.31 of LLEP for reasons provided above at [119(3)]; 3. while the Applicant's proposed development is generally compliant with the controls in both sections 3 and 4 of Part 1 of LDCP, it is not compliant with the fifth control in section 4 of Part 1 of LDCP, for reasons provided above at [139].
2. As a consequence of my findings above at [155], I conclude that the Applicant's proposed development should not be approved, and its appeal should be dismissed.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. The Applicant's development application DA-734/2018 seeking consent for site earthworks and the removal of vegetation to accommodate a future footprint for two warehouse buildings is determined by refusal. 3. The exhibits are returned, except exhibits B and 2. ………………………. M Chilcott Commissioner of the Court

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