Glendinning Minto Pty Ltd v Gosford City Council

Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300 Hassell Pty Ltd v Warringah Council [1998] NSWLEC 41 Woolworths Ltd v Bathurst City Council(1987) 63 LGRA 55 CASES CITED: Goldberg v Waverley Council (2007) 156 LGERA 27 BGP Properties v Lake Macquarie City Council (2004) 138 LGERA 237 Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10 Mison v Randwick Municipal Council (1991) 23 NSWLR 734

DATES OF HEARING: 17 & 18 February 2010, 23 & 25 March 2010. Further conditions 11 May 2010

APPLICANT Dr S Berveling, Barrister instructed by Mr P Vergotis of DLA Phillips Fox LEGAL REPRESENTATIVES:

RESPONDENT Mr M Fraser, Barrister instructed by Ms P Wright of P J Donnellan & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10304 of 2009 Glendinning Minto Pty Ltd v Gosford City Council

JUDGMENT 1 This is an appeal against the refusal by Gosford City Council (the council) of a development application (34498/2008) under the Environmental Planning and Assessment Act 1979 (EPA Act) for the construction of a dwelling, roads and associated works on each of the following lots at Woy Woy Road and Bambara Road, Kariong (site):

Lot 229 DP 755251 approx 25.9ha (108 Bambara Road) Lot 478 DP 755251 approx 3.2ha (140 Woy Woy Road) Lot 251 DP 755251 approx 22ha (94 Bambara Road) Lot 2501 DP 801107 approx 18.74ha (63 Bambara Road) Lot 2502 DP 801107 approx 3.24ha (64 Bambara Road) Lot 4711 DP 801108 approx 0.62ha (28 Bambara Road) Lot 4712 DP 801108 approx 1.32ha (28 Bambara Road) 2 The main issue between the parties is whether the site is suitable for the proposed development given the ecological impacts including the offset proposal, the adequacy of the assessment of aboriginal heritage and the proposed bush fire safety measures. They are summarised in the Statement of Contentions filed by council on 16 December 2009 as: A. The land is unsuitable for the proposed development having regard to its inherent bush fire hazard risk. The development of dwellings on the sites, even with those measures in place as proposed by the applicant and required by the experts, exposes the occupants, visitors and emergency authorities to such danger in the event of bushfire particularly extreme/catastrophic bushfire events that the 7 sites and the land as a whole are unsuitable for the proposed development. B. (1) The proposed development is not ecologically sustainable. (2) The measures proposed by experts which are claimed to render the development acceptably safe for human habitation and emergency workers given the threat posed by bushfire, will have other environmental impacts. (3) The unacceptable environmental impacts are caused by necessary vegetation removal or consequential loss from: (a) significant clearing for APZs around dwellings, services and road edges; (b) the clearing required for construction of sealed roads and the verges around to enable general access day to day and safe passage of fire and other vehicles in case of an emergency; (c) further destruction of bushland by the construction of a perimeter road or perimeter fire trail, which either must be constructed as part of the development, failing which (d) there will be emergency bulldozing of fire breaks because in the absence of perimeter fire trails a decision would be made to cut a fire break around the perimeter of this land to create a fire break between the subject allotments and the adjacent national park, either through bushland on the subject lots or through bushland within the national park or both, in extreme/catastrophic bushfire events; (e) the clearing required for the effluent disposal systems. C. (1) The amount of planned and unplanned vegetation destruction will have an unacceptable ecological impact (including on threatened species and their habitats) both on the site and the adjoining Brisbane Water National Park. (2) The "vegetation offset package" proposed by the applicant is an inappropriate tool and in any event inadequate and insufficient to compensate for the loss of vegetation proposed. D. The impact of the proposed development on Aboriginal heritage is unacceptable. 3 A further contention related to owners consent for the application. The parties agreed that the application cannot be determined without owners consent of the Crown for access to lot 229 but they disagreed on the procedure to deal with this. Background 4 A conciliation conference under s34 of the Land and Environment Court Act 1979 (Court Act) was undertaken on site and at council on 1 September 2009. The conference was adjourned to enable the applicant to provide further information. The conference reconvened on 11 and 17 December 2009. The parties did not reach agreement and the conference was terminated. The parties agreed to me disposing of the proceedings under s34(4)(b)(i) at a further hearing held on 17 and 18 February which was further adjourned, part heard, until 23 and 25 March 2010. Further conditions were filed on 11 May 2010. Site and context 5 The site is located on the eastern side of Woy Woy Road. It comprises seven lots with a total site area of about 75ha. The site is vacant and is generally heavily vegetated with remnant native vegetation. Parts of the site have been cleared and there is weed growth present. Bambara Road is a dirt road, which runs off Woy Woy Road to the east and provides access to all the lots except Lot 229, which is accessed via an unformed Crown road. The site adjoins the Brisbane Waters National Park (BWNP) on three sides. There are a number of aboriginal sites on both the site or in close proximity to it within BWNP. Planning controls 6 The site is in zoned 7(a) - Conservation and Scenic Protection (Conservation) under Gosford Interim Development Order 122 (IDO 122). Development for the purpose of dwelling houses and roads are permissible with consent. 7 Clause 5(3) of IDO 122 provides: The Council must not grant consent for development on land within a zone unless it has taken into consideration the objectives of the zone and the consistency of that development within those objectives as well as the objectives of the Local Government Act 1993 relating to ecological sustainable development. 8 The objectives of Zone 7(a) are: ( a) the conservation and rehabilitation of areas of high environmental value; (b) the preservation and rehabilitation of areas of high visual and scenic quality in the natural landscape; (c) the provision and retention of suitable habitats for flora and fauna; (d) the prohibition of development on or within proximity to significant ecosystems, including rainforests and estuarine wetlands; (e) the provision and retention of areas of visual contrast within the City, particularly the "backdrop" created by the retention of the ridgelines in their natural state; (f) the provision of opportunities for informal recreational pursuits, such as bushwalking and picnics, in appropriate locations; (g) the minimisation or prohibition of development so that the environmental and visual qualities of the natural areas are not eroded by the cumulative impact of incremental, individually minor developments; (h) the minimisation or prohibition of development in areas that are unsuitable for development by virtue of soil erosion, land slip, slope instability, coastal erosion or bushfire hazard. 9 Clause 22(1) of IDO 122 permits the erection, with consent, of a dwelling on an allotment of land in Zone 7(a) provided it has an area of not less than 40ha. Clause 22(2)(b) and cl 22B(1)(a) provide exemptions which permit a dwelling to be erected on the lots despite each of the seven allotments being less than 40ha. 10 Under Draft Gosford Local Environmental Plan (draft LEP) the site is proposed to be zoned E2 Environmental Conservation, with similar zone objectives to Zone 7(a) in IDO 122. Dwelling houses remain a permissible use on the site despite the lots being less than the minimum lot size for subdivision of 40ha under the Draft LEP. 11 Gosford Development Control Plan 155 - Single Dwellings and Ancillary Structures applies to the development and the site is within the Kariong 9 - Scenic Conservation locality in Gosford Development Control Plan 159 - Character. Lot 229 DP755251 is within a coastal zone under State Environmental Planning Policy 71 - Coastal Protection. Council did not press any issues regarding the proposals compliance with these plans. 12 There is vegetation on the site, which is identified as endangered species under the Threatened Species Conservation Act 1995 (TSC Act), including Darwinia glaucophylla, Hibbertia procumbens and Melaleuca deanii. The vegetation on the site also provides habitat for a number of endangered species of fauna listed on the TSC Act. The applicant has prepared a Species Impact Statement (SIS). The proposal required the concurrence of the Department of Environment, Climate Change and Water (DECCW), which has not been granted. Under s39(6) of the LEC Act, the Court can determine the appeal without such concurrence. 13 All of the allotments are classified as Category 1 on Gosford Bushfire Hazzard Maps. Five allotments are in Bushfire Attack Category 'Flame Zone'. An assessment under s79BA of the EPA Act has been undertaken by the Rural Fire Service, which has proposed conditions of consent. The parties agreed that the proposal does not require an assessment under s100B of the Rural Fires Act 1979 (RF Act) as no subdivision is proposed however, council pressed that the appropriate level of fire safety has not been achieved. 14 The site contains aboriginal objects. Part 6 of the National Parks and Wildlife Act 1974 (NPW Act) is relevant. The issues and evidence 15 The Court heard expert evidence from: For the council o Mr S McMonnies, fire safety o Ms M Dallas, aboriginal heritage o Mr J Bruton, planning o Mr M Stables, ecology

For the applicant o Dr A Wotherspoon, fire safety and ecology o Mr A Roberts, aboriginal heritage o Mr I Glendinning 16 Mr B Pike (for the council) and Dr Wotherspoon provided a joint report on aboricultural issues. Mr D Couture (for the council) and Mr H Fiander (for the applicant) provided a joint report on wastewater issues. These experts reached agreement and were not required for cross examination. 17 The Court heard evidence on the importance of the aboriginal heritage on the site from members of the community including Mr S Gordon the CEO of the Darkinjung Local Aboriginal Land Council (LALC). Their main concerns are that the site is an important part of the aboriginal cultural heritage of the area. Its importance is not just the individual objects such as rock engravings but also the flora and fauna of the place and its connection to other aboriginal sites. It is part of a song line which crosses the area and it is important that this connection be maintained and that the aboriginal community retain access to the site as well as conserving its objects and environment. 18 The objectors were opposed to any development of the site. They considered the development, including the houses, roads and increased population and traffic would impact on the site and its cultural heritage. They also considered that the private use of the land would restrict its use by members of the community, which currently exists. Mr Ridgeway (TjutitItjarri) stated that the Pacific Islanders Protection Act 1875 has not been repealed and ensures the right to use the land. 19 Mr Gordon recognised that the site is privately owned and that the zoning of the site permits houses. He stated that an Aboriginal Cultural Heritage Management Plan should form part of any development approval. This plan should address the ongoing issues relating to the protection and preservation of the environment and the sites impacted by the development. It should address matters such as access, conservation of artefacts, fencing, management and ongoing monitoring of the site and should be prepared in consultation with the aboriginal community.

Owners consent 20 Access to lot 229 is only available across a Crown public road owned by the Land and Property Management Authority (Lands Department). Owners consent to construct the access has not been obtained. The parties agree that the development cannot be approved without the owners consent. 21 The owners consent was a grounds for refusal in council's Notice of Determination dated 26 November 2008 and was raised as a contention by council. 22 Dr Berveling, for the applicant, submits that the road has not been dedicated as a public road. The owner's consent of the Lands Department is conditional upon council's concurrence to the transfer of the Crown road to it. 23 Dr Berveling submits that under s39(2) of the Court Act, the Court can assume the council's concurrence as it is a function in respect of the matter that is the subject of the appeal. In his submission, it is appropriate to grant concurrence as: a) Ownership is a historical anomaly; b) The various roads within the site are indistinguishable from each other in practice; c) Council already accepts appropriateness of the proposed works - Exh 11. 24 Dr Berveling referred to Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300 to support his submission that the Court has the power to grant concurrence to the transfer under s 39(2). 25 Dr Berveling proposed Short Minutes of Order whereby the Court concurs to the transfer under s39(2) so that owners consent from either the Lands Department or the council is granted and that the appeal be stood over for final orders until the consent is obtained. He referred to Hassell Pty Ltd v Warringah Council [1998] NSWLEC 41 as authority for this approach. 26 Dr Berveling referred to exhibits to establish the chronology of events it had undertaken to obtain owners consent. In summary, the Lands Department confirmed its ownership of the road by letter dated 27 July 2009 (ex 6 tab 20). The applicant requested owner's consent by email dated 15 February 2009 (ex L) and provided documentation in relation to the works proposed. The response from the Lands Department states: I refer to your request for urgent owner's consent to the making of DA 34498/2008 and note that Council's determination dated 26 November 2008 outlines the absence of owner's consent from the Crown as a factor in the DA's refusal. Notwithstanding this, Gosford Council's concurrence to Crown road transfer for traffic generating developments is integral to LPMA providing owner's consent. Transfer of a Crown road enables Council to fulfil its obligations under the Environmental Planning & Assessment Act 1979 and the Roads Act 1993 to administer road works in accordance with any conditional consent. The LPMA is not in a position to grant owner's consent under the circumstance and would require sufficient time to properly consider a DA and its supporting documentation. In regard to your request, the LPMA is unable to provide owner's consent to give the Court jurisdiction on appeal to deal with the DA. 27 Dr Berveling advised that the applicant had verbally approached the council three times requesting its agreement to the transfer of the road but this had been refused although no documentation was provided. 28 Mr Fraser, for the council, submits that the council's function to accept the transfer of the road is not part of the development application and is beyond the power of s39(2). It is distinguishable from Ipoh where the council owned the land and the Court could exercise s39(2) to grant owners consent to a development application. In this case the land is owned by the Lands Department. 29 Further, Mr Fraser submits that even if there is power it would be inappropriate for the Court to exercise its powers under s39(2) in circumstances where there has been no formal request to council to accept the transfer the road and no terms of transfer provided.

Findings 30 Section 49(1) of the Environmental Planning and Assessment Act 1979 (EPA Regs) provides: (1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land. 31 A consent authority may consider an application without owners consent but the consent of the owner must be obtained before the consent is granted (Woolworths Ltd v Bathurst City Council(1987) 63 LGRA 55). 32 Section 39(2) provides: (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. 33 In Ipoh, the Court of Appeal affirmed the Court's power under s39(2) to grant owner's consent to the making of a development application where council is the owner of the land, even if the land is an investment asset. 34 In this case, council is not the owner of the land and the Lands Department has indicated it will not grant its consent as owner without council's agreement to the transfer of the road. 35 In Goldberg v Waverley Council (2007) 156 LGERA 27, Biscoe J reviewed the authorities in relation to s39(2) and concluded that a broad approach to s39(2) should be adopted. At [43] he states: A difficulty in applying s 39(2) is that its scope has still not been settled by the Court of Appeal. However, in my view, the trend of the authorities favours the broad approach originally enunciated in Kent , powerfully supported by Kirby P in McDougall and recently and unanimously held in Ipoh to have "much to commend it". I respectfully agree with the broad approach. The result of that interpretation, as articulated by Kirby P in McDougall at 264 is that "all the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval". Of course, the functions and discretions (as Cripps JA indicated in McDougall ) must have a relevant nexus to the matter the subject of the appeal in order to be "in respect of " that matter. I take this to mean that if a development application is refused and something has a relevant nexus to it, s 39(2) throws a blanket over both, that is, empowers the Court to deal with both. 36 On this broad approach, the agreement of the council to the transfer of the land is a function and discretion it could have exercised when considering the development application and is therefore a function and discretion that the Court, on appeal, can exercise. The question becomes one of discretion and principally whether it is appropriate for me to exercise this function and discretion. From the evidence, I find that it is not. I accept Mr Fraser's submission that it would be inappropriate for me to agree to the transfer of the land in circumstances where not formal request to council has been made and where it has not be afforded the opportunity to consider such a request and to either accept or refuse the request. The reference to the refusal of verbal requests is not sufficient justification for me to exercise a function of council in relation to the transfer of a road to it, which will require ongoing issues such as maintenance and public liability that remain unanswered. The Lands Department recognises the obligations of council in stating that it requires council's concurrence to the transfer prior to it granting its consent as owner and that it also requires time to consider the works proposed. 37 In reaching this conclusion, I note that the applicant has been aware that owners consent is required at least since the application was refused in November 2008 and that it had confirmed the ownership of the land by July 2009. However, a request for owners consent was not made until 15 February 2010 and no formal request to council has been made. In these circumstances it is inappropriate for the Court to exercise the discretion sought by the applicant, even if it has the power to do so, which is unclear. 38 In Hassell, Shean J dealt with a similar matter where the consent of an owner required by s77(1) of the EPA Act (the predecessor to cl 49 of the EPA Regs) had not been obtained for the use of a Crown road for access to a subdivision. His Honour concluded that: There is little doubt in my mind that the DLWC was aware of the development application. However, s 77(1) of the EPA Act is clear in its requirement that the consent of the owner must be in writing. I am of the view that the documentation so far provided by the applicant does not satisfy s 77(1) of the EPA Act. However, I am also of the view that this should not be fatal to the application, as it would seem from the tendered correspondence from the DLWC that the barrier to its granting "adequate" consent lies with their policy or approach, rather than with any concern with, or opposition to, the proposal itself. As the Court's assessment of the application has not arrived at any reasons for its refusal, it would seem appropriate to adjourn at least the appeal in 10428 of 1997 to allow the applicant the opportunity to obtain a written consent from the DLWC that would satisfy s 77(1) of the EPA Act. 39 Although referred to by Dr Berveling it is not a process which relies on s39(2). Rather it requires a consideration of the merits of the application and if found to be acceptable defers the final determination to enable the applicant the opportunity to obtain owners consent. I accept that this is an approach which is open to the Court to pursue, however, given the other issues that I discuss later in the judgment, as well as the adjournment that has already been granted, and the undefined time frame which may be required to obtain owners consent, it is not an approach which it is appropriate to pursue in this appeal.

Zoning 40 Mr Fraser and Dr Berveling referred to the zoning of the site and to BGP Properties v Lake Macquarie City Council (2004) 138 LGERA 237 to support their positions regarding the suitability of the site for the proposed development. He submits that the impacts are such that little weight should be given to the zoning of the site. 41 Dr Berveling submits that the site was specifically rezoned in 2001 under Gosford Local Environmental Plan No 410 (LEP No 410). This LEP changed the 7(b) zoning under IDO 122 to 7(a) and inserted cl 22B, which permitted dwelling houses on the site, despite the non compliance with the minimum lot size otherwise applicable under cl 22 of IDO 122. Dr Beveling submits that these changes were the result of thorough assessment of the environmental constraints of the site. The zoning is highly specific with a confined range of permissible uses and that it should be given considerable weight. 42 Mr Fraser drew different conclusions from the history of the rezoning of the site. He submits that "rezoning reflected the fact that environmental constraints on the subject lands were significant." Mr Fraser recognises the principles in BGP Properties but questions the form of development due to its impacts.

Findings 43 In BGP Properties, McClellan CJ discusses the significance of zoning at [117] to [119] he states:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

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. 44 The rezoning of the site to 7(a) is relatively recent and site specific with a confined range of uses and clearly must be given considerable weight. Development of each lot with a residential dwelling is a reasonable assumption provided the form of development is consistent with the objectives of the zone and results in acceptable environmental impacts. 45 Furthermore, the current zoning and confined range of uses is maintained in the draft LEP which indicates that there is no change to the planning regime envisaged nor the "need to evaluate its prospective development having regard to contemporary standards" as recognized in BGP Properties may sometimes be the case. 46 Given the history of the zoning, and considering the comments in BGP Properties, there is no reason why significant weight should not be given to the zoning. The development and its impacts must be assessed recognising that dwellings, in some form, are an appropriate use for the site.

Bush fire safety 47 The NSW Rural Fire Service (RFS) recommended conditions in its response of 26 August 2008 to a request for advice from council under s79BA of the EPA Act. Mr McMonnies and Dr Wotherspoon agreed that under s79BA, the development is required to conform to Planning for Bushfire Protection 2006 (PBP). As the site is an existing subdivision a bushfire safety authority under s100B of the RF Act is not technically required. 48 The proposal provides bushfire protection measures which include Asset Protection Zones (APZ) that have been agreed by the experts. The proposal is to have the entire APZ as an Inner Protection Area (IPA), with a perimeter fire trail. Bambara Road is to be widened and upgraded with all weather surface to provide access by emergency services with passing bays. Mr McMonnies and Dr Wotherspoon agreed that the proposal provides reasonable bushfire protection measures for infill development that meet the requirements of PBP. 49 Despite the agreement of the experts and advice of the RFS, Mr Fraser submits that the proposal does not achieve "best practice" fire safety. He recognises that the application is "not technically" for subdivision, as the lots already exist. However, he submits they are a historical accident and that the higher standards required by s100B should be applied. The key difference between a s79BA of the EPA Act and a s100B of the RF Act assessment being the requirements of Part 4.1.1 of PBP for subdivisions. Mr Fraser refers in particular to the guideline that states:

…where access is greater than 200m from a main road or refuge suitable for occupants and fire fighter, a second access arrangement is required which provides alternative access in a different direction from the main access. 50 The proposal does not meet this requirement as Bambara Road is a dead end and exceeds 200m. The refuges, being the APZs, in some instances exceed 200m. Mr Fraser submits that the proposal therefore does not achieve an acceptable level of fire safety. 51 Mr McMonnies and Dr Wotherspoon addressed this issue and both agreed that there are existing subdivisions, particularly in rural areas that predate PBP. The different requirements of s79BA and s100B assessments in PBP recognise that with existing subdivisions there is not the opportunity to plan roads and the layout of lots. The proposal would not comply with an assessment under s100B but never the less it meets the requirements of PBP for "infill development". The experts agreed that the proposal provides adequate access with suitably spaced refuges. They acknowledge that more refuges could be provided which would increase safety but did not consider this to be necessary given the extent of the hazard and the increased ecological impacts. 52 Mr Bruton, raised planning concerns about the suitability of the site due to the constraints posed by the bushfire risk and the length of Bambara Road. Even though Mr McMonnnies and Dr Wotherspoon agree that there are adequate APZs with defendable space, Mr Bruton stated that people may still choose to leave in a fire and be trapped by a single exit. He considered that a perimeter road would provide for alterative escape routes and greater safety. 53 Mr Fraser refers to the concept plan prepared by Dr Wotherspoon which provides an alternative layout for a subdivision with a perimeter road and APZs that would be suitable under s100B. Mr Fraser submits that while this is not proposed as an alternate scheme it demonstrates that the site can be developed with greater fire safety and less impact on the ecological and aboriginal heritage values of the site. 54 Dr Berveling submits that bushfire safety has been adequately addressed through the rezoning of the land to permit dwelling houses on the existing allotments, through the conditions of the RFS and the agreement of the bushfire experts. In his submission, any reference to s100B is irrelevant.

Findings 55 S79BA of the EPA Act, s100B of the Rural Fires Act and PBP establish the framework to assess fire safety. The proposal has been assessed within this framework. The RFS and both fire experts have agreed that the proposal provides adequate fire safety measures. Both experts acknowledge that greater fire safety could be achieved by measures such as a perimeter road or closer refuges and that the alternative concept plan would provide improved fire safety, with less potential impact on the ecology and aboriginal heritage of the site. However, this does not mean that the proposal is not safe and does not meet the relevant requirements in PBP. PBP is "current best practice" and there is no evidence to suggest that it is outdated or irrelevant. It is therefore not appropriate for me to set aside its requirements or impose more onerous requirements on the development (see Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10 at [98] - [99]). While an alternate scheme may achieve better safety, this is not what is before the Court and I must determine whether the application for which consent is sought achieves acceptable fire safety. Based on the evidence of the fire experts, I am satisfied that this is met. However, to achieve this level of fire safety results in other impacts, particularly ecological, which are discussed below. Ecology 56 Mr Staples and Dr Wotherspoon agreed in their joint report (Exhibit 13) that the area of disturbance of the proposal for the houses would be 26,428sqm and 7996sqm for the road, being a total area of 34,424sqm, which is about 4% of the total site area. The area of disturbance comprises two vegetation types: 32,334sqm of Red Bloodwood - scribbly gum heathy woodland (woodland) and 2090sqm of Hairpin Banksia - slender tee tree heath (heath) 57 Mr Pike and Dr Wotherspoon agreed in their joint report (Exhibit 14) on the number of trees to be removed and retained for widening of Bambara Road and in the principal development areas (PDA) for each house. The PDA includes the area for house construction, Ecomax effluent disposal area, driveways and APZs. 58 The number of trees to be retained and removed in these areas is summarised in Table 2 of Exhibit 14: Table 2. Trees to remove and retain Lot 229 Lot 251 Lot 478 Lot 2501 Lot 2502 Lot 4711 Lot 4712 Bambara Rd TOTAL Remove 111 12 81 83 188 123 55 298 951 Retain 109 63 59 62 79 36 54 1152 1614 TOTAL 220 75 140 145 267 159 109 1450 2565

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".

Findings 77 The site is adjoined on three sides by Brisbane Waters National Park; it is heavily vegetated and contributes to a corridor of uninterrupted natural vegetation. The SIS identified that the site contains five distinct native vegetation communities, which provide actual habitat for three threatened flora species and nine threatened fauna species. The proposal will remove or disturb about 34,424sqm of vegetation, by far the majority of this vegetation will be woodland (32,334sqm). The area of disturbance is required to place a dwelling on each of the seven lots. The area of disturbance is large relative to the size of each dwelling but the experts agree it has been minimised and is what is necessary to address the fire safety issues associated with placing houses on a vegetated site that adjoins a national park. While the area of disturbance represents only about 4% of the total site area, Mr Staples and DECCW identify it as a significant impact, which needs to be adequately compensated for by an appropriate offset proposal. The key issue between the experts is whether the offset proposal, in its various forms, is adequate. 78 Mr Staples initially accepted the offset proposal but in doing so stated that he is not an accredited certifier and would normally rely on DECCW and that its comments should be sought, particularly given that they had previously raised concerns about the adequacy of the information to assess the impact of the proposal and also the adequacy of the offset proposal. 79 The experts agree that the bench mark for assessing the adequacy of the offset is whether it will improve or maintain biodiversity values. The biobanking assessment methodology establishes a process by which it can be established whether this benchmark is met. It establishes two classes of biodiversity credits: Ecosystem Credits and Species Credits, which are calculated for the "Development site" and the "Biobank site". The methodology is relatively new and complex and it to be undertaken by an accredited assessor. 80 The review of the offset proposal (Exhibit H) was carried out for DECCW by Mr Lewer, an accredited assessor under s142B(1)(c) of the TSC Act. Neither Mr Staples nor Dr Wortherspoon are accredited certifiers, although Dr Wotherspoon stated that the offset proposal was prepared by his employee who is an accredited certifier. 81 The DECCW review identified deficiencies in the assumptions used to calculate the development site credits required to be retired, principally the use of only one management zone. Dr Wotherspoon amended the offset proposal to include two management zones, although he still used a different input to DECCW in relation to the APZs. He also amended the amount of woodland to be disturbed. Consequently there remained a difference in the number of ecological system credits required to be retired between DECCW (249 total including 238 for woodland)) and the offset proposal in Exhibit N (210 total including 190 woodland). 82 The applicant relies on the offset proposal in Exhibit N but is prepared to accept an increase in the offset as set out in Exhibit O. Neither of these offsets has been referred to DECCW for comment and neither meet the ecosystem credits required to be retired for woodland. Dr Wotherspoon relies on the greater conservation value of the swamp and heath as justification as to why the shortfall in the woodland credits is acceptable. DECCW recognised that this approach is acceptable but not the extent of the original shortfall. 83 Dr Wotherspoon also relies on the exceedence in the species credits to justify the shortfall in ecosystem credits. While this may have some merit there is no evidence before me that it is an acceptable approach. The exceedance in the species credits was clearly something that was considered by DECCW in its review and there is no reference in its letter that species credits may be used to cancel out deficiencies in ecosystem credits. Mr Staples 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. Mr Staples also acknowledged that there could be some flexibility in the deficiency if areas of significant conservation value were included such as the swamps, heath and the area of Hibbertia procumbens on lot 229. 84 Further, Dr Wotherspoon indicated that the offset area and the area outside of the PDA, which is not part of the offset area would both be under the VMP and therefore there would be little difference in how they are managed. He acknowledged that there is no reason why the whole site outside of the PDA could not be included in the offset area, including the area of Hibbertia procumbens on lot 229. Despite this acknowledgment, the offset in Exhibit O provided an increase in the offset area but did not include that part of lot 229, which includes the known population of Hibbertia procumbens. 85 The latest offset proposal also indicates that areas outside the offset proposal may be able to be offered to the Biobanking Scheme. While this is open to the owners to pursue, it would appear that it should be considered as part of the offset proposal for the development of the site. In particular, it does not seem appropriate that the development can remove about 106 Hibbertia procumbens plants and offset the loss based on the predicted frequency of the species occurring in the habitat to be set aside. Given that there is a known population of Hibbertia procumbens on lot 229, I acknowledge DECCW's concern that preference should be given to including this in the offset area rather than areas in which the species is predicted to occur but has not been verified, particularly if this area will be available for biobanking credits at some later stage. 86 The offset proposal is not in a form which I am satisfied meets the benchmark of improving and maintaining biodiversity values. In each of the offset proposals there is a shortfall in the number of woodland offset credits. This is understandable given that the majority of the vegetation to be disturbed for which an offset is required is woodland. However, this shortfall requires that a degree of discretion be exercised to ensure that the benchmark of improving and maintaining biodiversity values is met. Neither Mr Staples nor Dr Wotherspoon are accredited assessors and the assumptions utilised in the offset proposals differ from those used by DECCW. While under s39(6) of the LEC Act the Court can grant consent without the concurrence of DECCW. However, given its stated concerns, the different assumptions and the questions in relation to the adequacy of the offset package, I find that it is inappropriate for me to do so in the absence of support from DECCW or clear expert evidence which addresses its concerns. The use of the biobanking assessment methodology is relatively new and complex. It is important that it is implemented in a rigorous manner and in this regard, the concerns of DECCW are relevant. 87 Even if the amount of offset were adequate, the revised offset proposal in Exhibit N, for which the applicant is seeking consent, does little more than outline the basis for the offset calculations. It does not include key factors such as that the offset area will be set aside in perpetuity for conservation or the obligations on the owners for management through a VMP or the mechanism by which this will be achieved. These factors have been requirements of DECCW in their comments on the proposal since 2008. The mechanism now proposed is a VPA as a deferred commencement condition, which adopts the findings and recommendations of the earlier offset proposal (Exhibit H). The terms of the VPA are not even in a draft form, have not been advertised or accepted, even in principle, by council or DECCW. 88 While the experts agreed that the VMP or VPA could be provided as a deferred commencement condition I am not satisfied there is adequate detail in the offset proposal and the conditions of consent to demonstrate that the impact on the biodiversity value of the site is acceptable. I accept Mr Fraser's submission that the offset proposal is a fundamental consideration in determining whether the development has acceptable ecological impacts and is not a matter, which is ancillary to the development that can be dealt with by conditions (see Mison v Randwick Municipal Council (1991) 23 NSWLR 734). 89 While it is feasible to redraft the offset document to provide the certainty that is necessary. This would require a further adjournment of the proceedings and is not warranted given the adjournments that have already occurred due to the deficiency in the information. The impacts of the proposal on the biodiversity of the site are a fundamental matter, which needs to be determined before consent can be granted, it is not a matter which can be deferred for further consideration at another time. From the information before me I am not satisfied that the impacts have been mitigated to an acceptable level to warrant approval of the application. Without an adequate offset proposal the development will have an unacceptable ecological impact and will not be consistent with the relevant objectives of the 7(a) zone in IDO 122.

Aboriginal Heritage 90 Mr Roberts prepared an Aboriginal Heritage Impact Assessment (AHIA). Version 3 of the AHIA was tendered (Exhibit J) and was referred to DECCW. Previous versions of the AHIA had previously been referred to DECCW. The AHIA assessed the potential impacts of the proposal on aboriginal cultural heritage (ACH) values of the site. in accordance with the requirements of Part 6 of the NPW Act. Under s87 or s90, Aboriginal Heritage Impact Permits (AHIP) may be issued by DECCW for the management, investigation or destruction of Aboriginal objects defined under the NPW Act. 91 The site, and the adjoining BWNP, include a number of Aboriginal objects, which are recognised in the AHIA as being of cultural significance. DECCW raised issues with the adequacy of the AHIA in their letter of 3 February 2010. Principally these concerns relate to whether there was sufficient evidence of consultation with the aboriginal community, the requirement for further investigation within the development areas and the preparation of an Aboriginal Cultural Heritage Management Plan (ACHMP). 92 Ms Dallas also considered that the AHIA to be inadequate and that it did not conform to best industry practice. Mr Roberts recognised these inadequacies, but identified constraints, principally the length of time required to undertake the Aboriginal community consultation in a formal and sensitive manner and that the s87/90 permit and ACHMP would be a requirement of any development consent. 93 Mr Roberts subsequently prepared a supplementary aboriginal heritage assessment (supplementary AHIS), dated March 2010 (Exhibit M) to identify the archaeological potential of the APZs through ground survey. This report also indicates that the preparation of an archaeological research design and s 87 application are to be undertaken and that the Public Notice to initiate the s 87 consultation had been given. 94 The key issues between the parties is whether the full assessment of archaeological impacts should occur prior to development consent being granted or if it can be dealt with through deferred commencement conditions. 95 The proposed deferred commencement conditions include the requirement that the applicant should obtain an AHIP under s87 of the NPW Act and that an ACHMP should be prepared and submitted for approval by council and that this would involve consultation with the aboriginal community.

Findings 96 The aboriginal sites identified in the AHIS are all outside the APZs and as such the proposal will not directly disturb these items. One engraving site is located on Lot 478 about 70m from the western edge of the APZ. The majority of the other identified sites are on Lot 2501 above the 190m contour line and a significant distance from its APZ.

97 The supplementary AHIS states that the APZs were surveyed to identify indigenous sites and any areas with potential for obscured sites. The report identifies Low archaeological potential for all APZs and Low to Moderate for the creek lines within or near the APZs. 98 The AHIS and supplementary AHIS indicate that direct disturbance of aboriginal sites is unlikely. However, indirect impacts may occur through the increased use of the site and the experts have agreed that management strategies are required to ensure the on going conservation of these items. 99 Further, the aboriginal community, through the consultation that has occurred to date, indicates that the importance of the site is not just the individual items but as a place of aboriginal cultural significance. They consider it to be on a known song line and linked to nearby initiation ceremony grounds. Further, they refer to the importance of the vegetation and fauna of the site and their connection to the land. 100 The aboriginal community is opposed to development of the site. However, Mr S Gordon the CEO of the Darkinjung LALC recognised that the site is privately owned and that there is no proposal for it to be purchased for public use or by the aboriginal community. Further he recognised that development for dwellings is permissible. In these circumstances he emphasised the importance of preparing a ACHMP. This should deal with ongoing issues relating to the protection and preservation of the environment and the sites impacted by the development. It should address matters such as access for aboriginal people, conservation of artefacts, fencing, management and ongoing monitoring of the site. It should be prepared in consultation with the community. 101 Dr Berveling submits that the s87 permit and ACHMP can be prepared as a deferred commencement condition. Mr Fraser submits that the deferred commencement conditions defer for consideration an essential matter relevant to the consent and that it lacks certainty (as per Mison). I note that there is concern about the time and cost required to prepare these documents as part of the development application, particularly due to the uncertainty of gaining approval and the disturbance required in the APZs for further investigation. However, It is not enough to simply identify items of significance on the site but it is also necessary to provide clear management policies that document how the aboriginal cultural significance will be conserved in the event of approval of the development. Without such policies, the impact of the development on the aboriginal significance of the site is difficult to accurately assess. 102 The application has failed due to the inadequacy of the Offset proposal for ecological impacts, this provides the opportunity for any further application to demonstrate that the requirements of s87 have been complied with and that a ACHMP has been prepared. I note that the greatest concentration of aboriginal objects is on Lot 2501, which was proposed as part of the offset for ecological impacts. As I understand there is no requirement for an offset for aboriginal impacts, however, it appears logical to ensure a degree of consistency between the ecological offset areas and the ACHMP, given that the offset areas are to be conserved and managed in perpetuity.

Other Issues 103 Mr Fraser submits that the alternate subdivision that clustered houses closer to Woy Woy Road which formed part of Exhibit 8 would have significantly less impacts. Particularly as smaller APZs would be required and consequently less loss of woodland and potential impact on aboriginal cultural heritage as well as greater fire safety. Further, Mr Fraser submits that a community title subdivision would provide greater certainty for the ongoing implementation of any offset, VMP and ACHMP. While I acknowledge the benefits of such a scheme this is not what is before the Court. Nor is such a subdivision permissible under IDO 122 without an objection under State Environmental Planning Policy No 1 - Development Standards to the minimum allotment size for subdivision. Such a proposal would also appear not to be permissible under the draft LEP without a variation to the subdivision standard. It is not a matter that the Court can appropriately consider, rather it would need to be dealt with through the strategic planning process or through an alternate development application. Orders 104 The orders of the Court are: 1. The appeal is dismissed. 2. The development application (34498/2008) for the construction of a dwelling, roads and associated works on seven lots at Woy Woy Road and Bambara Road, Kariong is refused. 3. The exhibits, except Exhibits 2 and 3, are returned.

          Annelise Tuor
          Commissioner of the Court

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