Removal for road = 298
Removal for dwelling Principal Development Areas = 653
Total to remove = 951
59 It is proposed to plant replacement trees at the ratio of 2:1 in previously disturbed areas of the site. Other trees outside of the PDAs and the area for the road widening will be retained and the site will be managed under a Vegetation Management Plan (VMP).
60 Mr Staples acknowledged that a dwelling house was permissible on each lot and that the amendments to the proposal, including the location of the houses, minimised the impact on flora and fauna. However, both experts agreed that the proposal would have impacts, which should be offset by retention and ongoing management of vegetation elsewhere.
61 The key disagreement between the experts is whether the offset proposed to compensate against the loss of threatened species and their habitat was adequate.
62 Dr Wotherspoon prepared an offset proposal for the site (Exhibit H). In their joint report Dr Wotherspoon and Mr Staples agreed that the flora surveys adequately quantify the number of the Hibbertia procumbens that will be disturbed. They agreed that the population estimate method used in the Species Impact Statement (SIS) is appropriate to provide a population number for the site and to estimate the proportion of the population of Hibbertia procumbens lost by the development.
63 In the joint report, Mr Staples agreed that the proposed offset for the Hibbertia procumbens would exceed the required biobanking offset and that there would therefore be no significant effect on this species. He also agreed that the offset requirements for other species derived from the biobanking calculator could be provided on a like for like basis. Mr Staples acknowledged that the offset ecosystem credits for woodland were below those required but accepted that the inclusion of the heath and hanging swamp community would ensure an adequate offset.
64 However, in oral evidence, Mr Staples stated that he deferred to DECCW as the peak body in relation to offsets. He noted that under s126N of the TSC Act the concurrence of DECCW can be conditional upon a "voluntary action" which will significantly benefit threatened species, such as securing the protection of land for conservation purposes. Mr Staples acknowledged that under s39(6) of the LEC Act, the Court may determine the application in the absence of the concurrence of DECCW but still considered it appropriate for the Court to consider any comments from DECCW. He noted that the application had previously been referred to DECCW and it had raised concerns about the adequacy of an earlier offset proposal and that the latest version prepared by Dr Wotherspoon's company, Abel Ecology (Exhibit H), had not been referred to DECCW.
65 The Court directed that during an adjournment in the proceedings the offset proposal be referred to DECWW. It replied by letter dated 12 March 2010 (Exhibit 23). In summary, DECCW noted that Abel Ecology had undertaken a 'development site' and 'biobank site' assessment (the assessment) for the proposal to establish the 'biodiversity credits'. The assessment had been undertaken in accordance with the 'Biobanking Assessment Methodology' (DECCW July 2008) as defined under s127B of the TSC Act and the 'Biobanking Assessment Methodology and Credit Calculator Operational Manual' (DECCW 2009).
66 The assessment calculated the following requirements:
Development Site: - retirement of 179 ecosystem credits (ie 7 credits for 'Hairpin Banksia - Slender Tea Tree heath on coastal sandstone plateaux, Sydney basin' vegetation type and 172 credits 'Red Bloodwood - scribbly gum healthy wood land on sandstone plateaux of the Sydney Basin' vegetation type) and 1927 species credits (for the endangered plant Hibbertia procumbens)
Biobanking Site (ie offset area): - provided 137 ecosystem credits and an estimated 5178 species credits for Hibbertia procumbens, based on the premise that the offset site had potential habitat for 858 predicted individuals, and 372 species credits for Darwinia glaucophylla.
67 DECCW noted that in the offset proposal there is a 'short fall' in the ecosystem credits required to be retired from the development site (179) with respect to the number of similar credits provided from the offset area (137). The offset area therefore provides 77% of the total ecosystem credit requirements for the proposed development. DECCW agrees that the offset area contains a regionally significant vegetation community, Sandstone Hanging Swamps, and that this together with the additional flora credits (Darwinia glaucophylla) could support the offset if the biobanking calculations were correct.
68 However, DECCW stated that the assessment for the development site in the offset proposal is based on wrong assumptions in that only one management zone is applied to each impacted vegetation type. DECCW states that two management zones should be applied: one that accounts for APZs where some vegetation components/structure is retained and another for clearing where no vegetation is retained (driveway, house, lawn and Ecomax effluent disposal). Based on DECCW's assumptions for the development site, 249 ecosystem credits would need to be retired and the proposed offset area therefore provides 55% of the total ecosystem requirements for the development. DECCW therefore does not consider the offset proposal is acceptable and recommends further offsets be pursued or the impacts reduced.
69 In relation to the species credits for Hibbertia procumbens, DECCW notes that 1927 species credits are required and that the offset area provides an estimated 5178 species credits. However, this assumption relies on a predicted count of Hibbertia procumbens based on suitable habitat being available in the offset area. DECCW acknowledges that this approach was supported for the SIS but recommends that for confirmation that the offset area contains the appropriate species credit requirements further flora surveys would be necessary. DECWW notes that a relatively large population of Hibbertia procumbens plants occurs to the north of the PDA for lot 229 and questions why this is not included in the offset area.
70 DECCW also states that the offset report does not include a definite proposal to ensure conservation of the offset area in perpetuity. Further it notes the commitment to prepare a VMP once the offset is agreed but states that it should be prepared prior to any approval being granted. Mr Staples and Dr Wothersppon raised no objection to the VMP and the terms of a conservation mechanism being undertaken as a deferred commencement condition. Mr Staples noted that DECCW prefers these to be available prior to consent as its role is limited to that of a granting concurrence but that council could approve these documents through a deferred commencement condition.
71 In response to DECCW's comments Dr Wotherspoon prepared an amended offset proposal dated 22 March 2010 (Exhibit N), which recalculated the development site ecosystem credits needed, using two management zones to each vegetation type, although not at the same rate as DECCW. Both used a multiplier of 0 for cleared areas and Dr Wotherspoon used a multiplier of 10 for APZs whereas DECCW used 5. The revised offset proposal also reduced the area of woodland lost (from 34,424sqm to 27,844sqm) by changing its vegetation type to heath or grassland wattle paddock. The area of road disturbance was separated into the area completely cleared (3,652sqm) and the APZ (4344sqm). These later changes would reduce the number of ecosystem credits required to be retired for woodland.
72 Dr Wotherspoon's revised estimate of the total ecosystem credits needed was 210 (compared to DECCW's 249) with 139 provided. He noted that the only vegetation type where there is a deficiency is the woodland (190 lost and 73 provided). The credits provided for heath exceed those needed (11 lost and 58 provided). In addition 8 credits were provided for swamp, even though none of this vegetation type is lost by the development. He stated that on the basis of offsetting requiring like for like or better that preference would be given for swamp and heath over woodland in any offset proposal. In his opinion, the additional credit points and the higher conservation value of the heath and swamp address the numerical deficit of 71 credits for the lost woodland. Further, he notes that the total of ecosystem and species credits provided significantly exceeds those needed.
73 Mr Staples had limited opportunity to review the revised offset proposal and it had not been referred to DECCW. Mr Staples recognised the conservation value of the swamp and heath vegetation but questioned the use of species credits to be offset against ecosystem credits. His understanding is that the biobanking methodology requires like for like in that the loss of each vegetation type should be offset against the same vegetation type. He stated that the deficit in the woodland credits would equate to about 20ha of woodland and that the offset proposal provides about 55% of the total ecosystem credits and therefore does not meet the test to maintain or improve existing ecological value.
74 Both Mr Staples and Dr Wotherspoon agreed that both the offset area and the areas outside the PDA would be managed in accordance with the requirements of the VMP and that, in practical terms, there is no reason why the offset area could not be increased to apply to a larger area of the site, provided it remained in private ownership. In particular, Mr Staples considered that increasing the offset on lot 229 would increase the certainty for conservation of the Hibbertia procumbens. Dr Wotherspoon noted that even if the whole site outside the PDA formed part of the offset it would not provide sufficient woodland credits to offset the woodland lost through the development but the higher value of heath and swamp and the species credits more than compensated for the shortfall in woodland.
75 A further offset proposal was prepared on 25 March 2010 (Exhibit O) but was not reviewed by either Mr Staples or DECCW. This offset was prepared on the basis that the offsets in Exhibit N were adequate but that further offsets were offered, if required. The offset plan (Figure 1) shows an increase in the area of lot 251 and adds lot 2502. Lot 229 is not shown as part of the offset in Figure 1 but is included in the calculations in Table 2. This offset proposal applies the same methodology to calculate the development site ecosystem credits as Exhibit N (210) and increases the ecosystem credits from those provided in Exhibit N (139) if the offset areas in lot 251 west (28), lot 2502 (27) and lot 229 south (62) are included to a total of 256. It also increases the offset credits for Hibbertia procumbens predicted to occur on lots 251 and 2502, although none of the known population on lot 229 is proposed to be included.
76 The latest offset proposal responds to the letter of DECCW. It notes that the DECCW accepted a 25% shortfall in the ecosystem credits on the basis of the inclusion of the swamps. It argues that the APZ will retain some ecological value and that the multiplier used by DECCW is too low which results in the different figures for the development site ecosystem credits required. Further it indicates that "Any land not formally placed under a covenant will be available to offer to the Biobanking scheme and thus has potential to generate an income for the owners of the land".