GTH Resorts No 10 Pty Ltd v Ballina Shire Council [2026] NSWLEC 1054 | Case summary | Zoe

NSWNSWLEC

GTH Resorts No 10 Pty Ltd v Ballina Shire Council

[2026] NSWLEC 1054

Land and Environment Court (NSW)|2026-02-13|Before: Gray C

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-02-13

Before

Gray C

Catchwords

APPEAL – development application – seniors housing –
built form and amenity – site re-zoning – bushfire
protection
– stormwater design – groundwater impacts – impacts on

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Catchwords

APPEAL – development application – seniors housing –built form and amenity – site re-zoning – bushfireprotection– stormwater design – groundwater impacts – impacts onadjacent biobanking area – adequacy ofmanagement plans – impacts onaquatic ecology – flood impacts and flood evacuation – biodiversityconservation– impacts on biodiversity values – adequacy of BDAR– conditions of consent

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: GTH Resorts No 10 Pty Ltd v Ballina Shire Council [2026] NSWLEC 1054

Hearing dates: 16-23 September 2024, 13 December 2024, 12 February 2025, 19 March 2025, Written Submissions 3 and 17 April 2025

Date of orders: 13 February 2026

Decision date: 13 February 2026

Jurisdiction: Class 1

Before: Gray C

Decision: The Court directs that:
(1) The parties are to confer and reach agreement on conditions of consent that reflect the findings in this judgment by 27 February 2026. (2) The respondent is to file and serve the agreed conditions of consent, and provide a word version by email to Commissioner Support, by 6 March 2026. (3) The proceedings are listed at 4:15pm on 12 March 2026 for final orders to be made. (4) Liberty to restore is granted on 2 days’ notice. (5) Exhibits 2-27 are returned, and the remaining exhibits are retained.

Texts Cited: Australian and New Zealand Guidelines for Fresh and Marine Water Quality (October 2000)
Ballina Shire Council, Biodiversity Compensatory Habitats and Offsets Policy (23 September 2021)
Ballina Shire Council, The Ballina Floodplain Risk Management Study and Plan (January 2012)
Ballina Shire Development Control Plan 2012
Billina Shire Council, North Creek Costal Management Program (December 2019)
BMT Interim Flood Impact Assessment Procedure (9 June 2022)
North Coast, Sydney Basin and South East Corner bioregions (June 2021)
NSW Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy, Urban Design Guidelines for Infill Development (March 2004)
NSW Department of Planning and Environment, Controlled Activities Guidelines for Riparian Corridors on Waterfront Land, Fact Sheet
NSW Department of Planning and Environment, Flood Risk Management Manual (30 June 2023)
NSW Department of Planning and Environment, Senior Housing Design Guide (November 2023)
NSW Department of Planning, Industry and Environment, Guidance to assist a decision-maker to determine a serious and irreversible impact (30 August 2019)
NSW Department of Planning, Industry and Environment, The Biodiversity Assessment Method (19 October 2020)
NSW Department of Primary Industries,
NSW Department of Primary Industries, Oyster Industry Sustainable Aquaculture Strategy (August 2021)
NSW Fire and Rural Services, Planning for Bush Fire Protection (November 2019)
NSW Government, Floodplain Development Manual (ISBN 0 7347 5476 0), (April 2005)
NSW Government, Northern Rivers Development Design Specification D5: Stormwater Drainage Design (January 2002)
NSW Minister for Planning, Draft Planning Directive 4.3
NSW Scientific Committee – final determination, Coastal Saltmarsh in the NSW North Coast,
NSW Scientific Committee – final determination, Freshwater Wetlands on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner bioregions (June 2021)
NSW Scientific Committee – final determination, Littoral Rainforest in the NSW North Coast,
NSW Scientific Committee - final determination, Lowland Rainforest in the NSW North Coast and Sydney Basin Bioregions (June 2021)
NSW Scientific Committee – final determination, Swamp Oak Floodplain Forest of the NSW
Policy and Guidelines for Fish Habitat and Conservation and Management (2013)
Standards Australia, AS/NZS4282:2023 (03 November 2023)
Sydney Basin and South East Corner Bioregions (August 2024)
Sydney Basin and South East Corner Bioregions (June 2021)
Water Quality Australia, Guidelines for Water Quality Management (2018).

COMMISSIONER: On a low-lying site in West Ballina bordered by the confluence of Emigrant Creek and the Richmond River, GTH Resorts No 10 Pty Ltd (GTH) seeks development consent for the construction of a seniors housing development comprising 110 independent living units and a range of other facilities to service the residents. It lodged a development application for an earlier iteration of the proposal with Ballina Shire Council (the Council) on 23 January 2023. Following the expiry of the period after which a development application is deemed to be refused, GTH lodged this appeal, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The development application was considered by the Northern Regional Planning Panel (NRPP) on 30 November 2023, and was refused by them on 11 December 2023.
The Council is the respondent to the appeal, pursuant to s 8.15(4) of the EPA Act. The Council opposes the grant of development consent, and raises 41 contentions for my consideration. Whilst around 15 of these contentions are agreed to be resolved, the Council asserts that there are a range of impacts that either have not been adequately addressed through the development application documents, or are unacceptable in some way. Those impacts include impacts from bulk and scale, visual impacts on neighbouring properties, impacts on flooding and flood behaviour, impacts on surface water and groundwater in the areas to be conserved, impacts on aquatic ecology and biodiversity conservation, and impacts on Aboriginal cultural heritage. The Council also argues that the site is not suitable for the proposed development on the basis that it is now a prohibited form of development on the site.
In advancing its numerous contentions, the Council focused some of the particulars on alleging inadequacies in the development application documents. For some of the contentions, the Council took the risk of alleging inadequacies in documents or insufficient information in preference to advancing evidence of impacts, notwithstanding that neither a document’s inadequacy nor insufficient information is necessarily a reason for refusal. Even on GTH addressing those inadequacies in an updated document, the Council came forward with new deficiencies. Very few of these types of contentions were agreed by the Council to be resolved, notwithstanding that some were squarely addressed by GTH. In my view, the Council took a ‘scattergun’ approach, firing at all angles in the hope that at least one might hit their target. I am of the view that these aspects of the Council’s approach to this appeal stands apart from what is required of it by s 56(3) of the Civil Procedure Act 2005 (NSW).
In this written decision, I first describe the proposed development, provide a description of the site and the locality, set out the planning framework, and outline the expert evidence. I then summarise the contentions that have been resolved with the agreement of the Council, before moving to consider each of the contentions that remain. Having considered the evidence before the Court, I have reached the conclusion that the proposed development is acceptable. The deficiencies alleged by the Council in development documents either do not arise, or are not a matter on which the development could be refused. Having regard to those documents, and to the evidence of the experts, I conclude that there are no unacceptable impacts caused by the proposed development. It is permissible on the site, its visual impact is acceptable in the circumstances, and it does not have unacceptable impacts on flood behaviour or flood evacuation. Further, the stormwater design ensures that the existing surface water flows are maintained in the areas to be conserved, there are no changes to the groundwater of those same areas, there are no impacts on aquatic ecology and there are negligible impacts on biodiversity values. I reach these conclusions for the reasons set out in detail below.

The site has a total area of 56.76ha, and comprises two lots, Lot 1 DP 124173 known as 550-570 River Street, West Ballina, and Lot 1 DP 522558, known as 6 Burns Point Ferry Road.
The development area, which includes the proposed built form and earthworks, comprises 10.17ha and the conservation area is 46.59ha. There are approximately 18.275ha of mapped coastal wetlands on the site, all of which will be protected within the conservation area. An overlay of the area for development on an aerial photograph is shown at Figure 3.
The site has a 377m frontage to River Street to the north, 933m frontage to Burns Point Ferry Road to the east and 24m frontage to Emigrant Creek Lane to the west. It also has frontage to Emigrant Creek to the west and Richmond River to the south east. The site is low lying, with surface levels ranging between 0.44m and 2.162m Australian Height Datum (AHD).
The site has a history of being cleared and used for agricultural uses, including cattle grazing and sugar cane farming. This includes the construction of drainage lines for sugar cane growing. Some of those drainage lines remain, and have resulted in the growth of artificial wetlands. The agricultural uses were eventually abandoned and the site has been vacant since 2012. However, some areas of the site have been slashed since those uses ceased, with slashing on part of the site occurring as recently as December 2023.
The site is mostly cleared in the northern section, where the earthworks and built form are proposed, with some vegetation in the north-western corner. The conservation area contains various plant community types, including mangroves, saltmarsh, Swamp Oak Forest, littoral rainforest and estuarine reed land. The footprint of the development is intended to be located on the most degraded part of the site, where estuarine reedland has been slashed and the Swamp Oak Forest is in a poor state. The vegetation mapping, by plant community type (PCT), is shown in Figure 4A.
Following the cessation of slashing in December 2023, further surveys of the vegetation were undertaken in August 2024, and the updated vegetation mapping is shown at Figure 4B. This demonstrates that the previously slashed areas became dominated by introduced species (PCT 1808 Setaria and PCT 1808 Urochloa), or became dominated by a cover of Phragmites australis to the exclusion of other species (see Ex C, Tab 2, p.81).
The site is subject to flooding, and is identified as a known mosquito breeding area.
The site includes an existing area covered by Biobanking Agreement No 444 made on 30 January 2019 between the Minister for the Environment and Ballina Waterways Pty Ltd under the former Threatened Species Conservation Act 1995 (NSW) (Biobanking Agreement). This area is mapped in the Biobanking Agreement as covering 40.5ha and most of the southern portion of the site, with a narrow portion extending to the north along Burns Point Ferry Road. The Biobanking Agreement has more recently been converted to a Stewardship Site Agreement. The Biobanking Area is shown in Figure 4C.
The site is located on a peninsula where Emigrant Creek meets the Richmond River, with existing residential development to the north, east and west. It adjoins a manufactured home estate and caravan park to the north-west along River Street, and three large lot residential dwellings to the west. The Burns Point Ferry stop is to the south-east of the site, at the end of Burns Point Ferry Road, and provides a connection to Keith Hall to the south. On the other side of Burns Point Ferry Road is a residential development known as Ballina Quays, which is a prestigious canal estate. A retirement community estate is directly to the north, across River Street, whilst vacant land is to the north-west. The Ballina town centre is 3km to the east.

The Ballina Local Environmental Plan 2012 (BLEP) applies to the site. At the time that the development application was lodged, the site was split across three zones: R2 low density residential, R3 medium density residential, and RU2 Rural Landscape. Seniors housing is a nominated permissible use in both the R2 and R3 zone, pursuant to the BLEP. An overlay of the development area on this zoning is shown at Figure 5, and demonstrates that the development area is wholly within the areas zoned R2 and R3.
On 1 December 2023, the BLEP was amended by the Ballina Local Environmental Plan 2012 (Amendment No 54) (BLEP Amendment 54) and the areas within the site zoned R2 and RU2 became zoned C2 Environmental Conservation. The FSR controls were also removed for that part of the site.
Clause 1.8A(2) of the BLEP contains a savings provision, which operates such that a development application made, but not finally determined, before the commencement of the BLEP Amendment 54, must be determined as if the BLEP Amendment 54 had not commenced. As such, the development application for the proposed development must be determined as if the BLEP Amendment 54 had not commenced, and therefore as if the site remains zoned R2 and RU2 (and R3). References to the BLEP are references to the version of the BLEP that is applicable to the development application.
The BLEP, as it applies, therefore imposes a height development standard of 8.5m and a maximum floor space ratio development standard of 0.7:1 to part of the site. Other relevant clauses in the BLEP are outlined in my consideration of contentions below.
The Biodiversity Conservation Act 2016 (NSW) (BC Act) concerns the protection and management of biodiversity in NSW, and it contains provisions that apply to the proposed development, which are considered below.
As the proposed development concerns seniors housing, a number of sections of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) apply. The SEPP Housing has been amended since the development application was lodged, most relevantly by the State Environmental Planning Policy Amendment (Housing) 2023. However, s 8(1) of Sch 7A makes it clear that an amendment made by the State Environmental Planning Policy Amendment (Housing) 2023 does not apply to a development application made before 14 December 2023, such as the present development application. References to the SEPP Housing in this judgment are references to the SEPP Housing as in force immediately prior to 14 December 2023.
Section 93 of the SEPP Housing concerns access to facilities and services, and requires that the consent authority consider whether residents will have adequate access to facilities and services, by a transport service or onsite. It provides, as relevant:

This contention asserts that there is a lack of clarity as to the basis upon which seniors living is permissible on the development site. It asserts that, because s 80 and Sch 8 make it clear that the SEPP Housing does not apply to the part of the site that is mapped as ‘Coastal Wetlands and Littoral Rainforest’, the earthworks in that area are not permitted under the SEPP Housing. Further, it also raises a particular concerning whether there is subdivision proposed in the development application, and whether the subdivided lots would comply with the minimum subdivision lot size development standard under the BLEP in the area where the SEPP Housing does not apply.
The contention is agreed to now be resolved. Firstly, there are no works for the purpose of seniors living proposed in the area mapped as ‘Coastal Wetlands and Litteral Rainforest’, either as coastal wetlands or proximity area, and the engineers agree that the development can be constructed without encroaching within that area. GTH has agreed to a condition preventing works being carried out in that area (condition 114A). Secondly, even if works were proposed within that area or the conservation works in the VMP are considered to be for the purpose of seniors housing, the SEPP Housing does not impose a prohibition on seniors housing, which is permissible pursuant to the BLEP and the applicable savings provision. As an aside, I note that s 80(2)(a) of the SEPP Housing makes it clear that “Nothing in Schedule 3 operates to preclude the application of this Part to land only because the land is identified under State Environmental Planning Policy (Resilience and Hazards) 2021, Chapter 2”. The land is identified in Ch 2 of the SEPP RH, as that is the relevant chapter that maps the site as ‘Coastal Wetlands and Litteral Rainforest’. Thirdly, there is no subdivision included in the proposed development. Although the lease of land is mentioned in the Statement of Environmental Effects dated 11 April 2023, the proposed development does not seek the subdivision of land, and, if development consent is granted, any development application for subdivision (if required) will need to be made separately.

The Council raised a contention that development consent should be refused on the basis that the application has not assessed the odour emitted by the adjacent mangroves, and has not demonstrated that the proposed development has been designed to minimise odour impacts on its future residents. The Council’s contention asserts that an odour risk assessment should be undertaken.
However, Mr Galvin and Mr Graham agree that there is no way to readily use a dispersion model to model the odour from wetlands, and that the monitoring of hydrogen sulphide and the complaint analysis is the appropriate method to perform an odour assessment. Mr Galvin and Mr Graham agree that the odour has been assessed through these methods.
They also agree that, in doing so, the complaints do not conclusively resolve the source of the odour. Further, the hydrogen sulphide levels detected a frequency of detectable hydrogen sulphide of less than 0.1% of the 10,000 observations over the period. This single event, which was 50 parts per billion, would mean that there would be a recognisable rotten egg type smell for that short period. They agree that this does not generate a health risk, and the impact can be mitigated by building design, including sealable doors and windows and the provision of appropriately filtered mechanical air ventilation. Further, they agree that there are other similar developments in other locations, where odour risk has been addressed by information at the time of sale to inform the residents that they were moving near mangroves and their associated odour.
The agreed conditions of consent include conditions requiring the provision of information about odour to purchasers and residents, and requiring dwellings to have sealable windows and doors and filtered mechanical air ventilation to minimize odour impacts (conditions 107-108).
For those reasons, this contention has been adequately addressed and the Council agrees, and I accept, that this contention is no longer a matter that would result in the refusal of the development application.

The Council contended that the Mosquito Impact Assessment originally relied upon and dated 12 December 2022, did not address all the requirements of the BDCP and is inconsistent with the other documents lodged in support of the proposed development. The Council therefore contended that the Court cannot be satisfied that the actual and potential mosquito risk can be managed.
The site is in an area mapped as being of high mosquito risk, pursuant to the BDCP. Chapter 2, Part 3.6 of the BDCP contains requirements concerning mosquito management, and for a Mosquito Management and Assessment Report. The planning objective for Part 3.6 is to “minimise nuisance and health risk associated with mosquitos through minimising contact between humans and mosquitoes”. Section 3.6.3 sets out the development controls, including requirements for installation of insect screening for seniors housing and an effectively screened outdoor area. At (vii) of section 3.6.3, there is a requirement for either a minimum 100m wide buffer, or for a mosquito impact assessment. The requirements for the mosquito impact assessment are then set out at (xi), and the requirements for the buffer zone required by a mosquito assessment are set out at (xvi).
The proposed development includes a mosquito buffer of 25m. The Mosquito Impact Assessment originally relied upon has been updated by Mosquito Consulting Services Pty Ltd and is dated 28 November 2023, and is accompanied by an addendum dated 4 September 2024 (final MIA) (Ex 27, p.18). Mr McGinn and Associate Professor Webb agree that this now addresses all aspects of the requirements of Section 3.6.3 of Part 3.6 of the BDCP. Further, the parties have agreed on conditions of consent that require mosquito management in accordance with the requirements of the BDCP. These are contained in proposed conditions 88, 126, 165-166 and 206-208. Proposed condition 90 also includes a requirement for an amended landscape plan that shows the required 25m mosquito buffer and the vegetation types PA5A Mosquito Buffer Planting or PA5C Mosquito Buffer Planting on the batter within the mosquito buffer.
To maintain the mosquito buffer, the slashing of small areas of saltwater couch in the understory of the swamp oak forest is required. As set out below, based on the evidence of Dr Thorogood and Ms Conacher, this does not result in an unacceptable impact. Further, Mr McGinn and Associate Professor Webb agree that whilst there is minimal ecological impact posed by the application of mosquito control products containing Bacillus thuringiensis israelensis (products widely used in coastal ecosystems in Australia with no substantial reports of adverse ecological impacts), its application to ephemeral habitats “are unlikely to be required nor likely to be effective in substantially reducing local mosquito abundance” (Ex 27, p.7). The application of Bacillus thuringiensis israelensis or other larvicide to the mosquito buffer area is therefore not proposed.
There is sufficient evidence before the Court to be satisfied that the actual and potential mosquito risk can be managed, without there being any ecological impacts, and these contentions are therefore resolved.

In its Amended Statement of Facts and Contentions, the Council contended that development consent should be refused on the basis that there was insufficient information about the staging of the development. The Council agrees that this contention is now resolved, with the exception of flood mitigation through each construction phase (RWS dated 23 September 2024, p.31).
The details of the staging of the development are contained in the CEMP. Mr Ide, Mr Thomas and Mr Knight agree that the CEMP adequately outlines the staging of the works. Mr Ide’s evidence, which is not contradicted, is that the CEMP includes sufficient information to understand how staging of the construction will occur, how access will be obtained at each stage, and how stormwater will be managed during construction.
Mr Thomas and Mr Ide remain in disagreement as to whether there is sufficient information in relation to the potential flood impacts that arise from each stage of the development. Mr Thomas opines that the CEMP needs to incorporate actions that will allow the potential flood impacts to be assessed for the landform associated with each stage of the work. Mr Ide considers that the earthworks staging is already sequenced to be sensitive to the flood conveyance requirements, and that a condition could be imposed to require the CEMP to include a flood impact assessment to model each proposed stage of construction, which can be submitted to the Council for approval prior to the issue of a construction certificate.
It is apparent, from the earthworks staging plan and the detail in the CEMP, that the staging includes measures for stormwater management, including temporary stormwater lines. The construction staging has been designed to manage surface run off and stormwater, with the aim of maintaining flood conveyance. I am satisfied that flood conveyance will therefore be maintained throughout each stage of construction. Nevertheless, the outstanding issue concerning the provision of the detail around this, in the form of flood impact modelling of the landform associated with each stage can be readily dealt with by a condition of consent, in terms consistent with the evidence of Mr Ide, which terms could be agreed. Such a condition has not been included in the conditions of consent that have been provided by the parties. The conditions of consent contain an agreed condition for a final CEMP to be submitted for approval (condition 20A(c)), but it does not specify requirements for flood impact modelling for each landform associated with each earthworks stage.
This contention is therefore addressed by GTH, and does not warrant refusal of the development application. The remaining issue concerning the flood impact modelling of each landform for each stage of construction, can be dealt with through the process of the approval of the CEMP, which should be required to provide that flood impact modelling. I reach the conclusion below (at [228]-[232]) that flood conveyance and storage is maintained by the proposed development as a whole, and I also note that the proposed development provides increased flood storage when compared to the integrated model on which the Council’s flood management strategy is founded. By extension, this is also true as each fill pad is constructed. Whilst the CEMP already indicates that the intent is for flood conveyance to be maintained throughout each stage, and provides the detail on how that will occur, the additional detail provided by modelling the flood impact will ensure that any temporary measures required to avoid flood impacts will be in place throughout the staging of the earthworks.

In support of the Council’s contention, Ms McCabe’s evidence is that this form, together with the minimal setback between each seniors living dwelling, results in a building presentation that would read as one continuous mass. She opines that this is unnecessarily overbearing and causes an unacceptable built form relationship, causing overlooking, privacy and potentially some overshadowing.
Ms McCabe measures the setbacks from the internal boundaries between seniors living dwelling sites, and between the edge of the retaining wall and the built form, and reaches the conclusion that the dwellings do not meet the BDCP building envelope controls.
With respect to the caravan park, Ms McCabe’s evidence is that the loss of existing vegetation along the boundary with the caravan park and the unknown relationship of the elevated access road with the caravan park site, causes amenity impacts.
Mr Mead’s evidence is instead that, in light of the single storey design of the proposed dwellings, the generous setback to the common boundary, the general low profile narrow form of the dwellings and the proposed landscape buffer, the proposal does not result in an unacceptable bulk and scale at this interface. He points out that the fill is required by the BDCP in order to achieve flood planning levels, and was anticipated by the zoning of the site for residential use. Mr Mead also notes that the BDCP, at Chapter 4, Section 3.1.3 allows for residential development that is two storeys plus a loft, and that, even with the filling of the land, the proposed dwellings are well below the maximum height limit of 9.5m set by the SEPP Housing. His evidence is that the setbacks and scale of the buildings proposed are compliant with the building envelope controls, when they are taken from the site boundary. He therefore opines that the proposed built form is what is contemplated by the built form controls. He then opines that the privacy issues that arise from the change in levels can be addressed by various privacy treatments, which will address overlooking until such time as the landscaping has reached the appropriate height.
With respect to the interface with the caravan park, Mr Mead points out that a setback of 50m is provided, and the landscape plan includes vegetation and a landscaped area within this setback. His evidence is that this cannot be said to be unacceptable given the extent of the setback and the landscaping it will support. Further, Mr Mead considers that views to the access road can be adequately mitigated through the proposed edge landscaping.

Whilst the change in levels creates a built form relationship between 31 and 33 Emigrant Creek Lane and the proposed development that is not ideal, the proposed development nevertheless does not result in an unacceptable visual or amenity impact on those dwellings and is compliant with the relevant built form controls. Further, there is an adequate landscaped setback to the caravan park to ensure that there is an appropriate built form relationship and no impact on that caravan park. Accordingly, these matters do not warrant refusal of the proposed development. I reach this conclusion for the following reasons.
Firstly, at the interface with 31 and 33 Emigrant Creek Lane, the setbacks from the site boundary to the retaining walls significantly exceed the setback required by the BDCP to the external walls of residential accommodation, which includes seniors housing. Whereas the setback required by the BDCP is 900mm, the proposed development provides a setback of 6m from the side and rear boundaries of the adjacent lots to the proposed retaining wall.
Secondly, the extent of the proposed setback allows for a landscape buffer that softens the visual appearance of the proposed development as it presents to 31 and 33 Emigrant Creek Road. I accept the evidence of Mr Mead that the line of planting within the setback will provide significant buffer screening to the built form at this part of the site.
Thirdly, I accept the position of GTH that the proposed development, including the filling of the land, the setbacks, and the built form envelope, are of a scale that is contemplated by the relevant controls. The filling of the land to the extent proposed is consistent with the requirements of the BDCP, at Chapter 2B Section 3.8, with respect to flood liable land. The building height plane, taken from the allowable fill level, complies with the prescribed envelope in Chapter 4, Section 3.1.3 of the BDCP, and, contrary to the evidence of Ms McCabe, there is no requirement for internal side setbacks between dwelling lots to meet minimum side setback requirements, as these controls relate to the site boundary. Further, the proposal provides for single storey dwellings across the site, in contrast to the two-storey allowable form for residential development pursuant to the BDCP, which means that the proposed development is well below the maximum height of 9.5m in the SEPP housing. The resultant bulk and scale of the proposed development, even as it presents to the dwellings at 31 and 33 Emigrant Creek Road, is therefore acceptable, and the view of the proposed development from the rear of 31 and 33 Emigrant Creek Road is of a form that is anticipated by the controls.
Fourthly, any overlooking caused by the raised level of the dwellings that face 31 and 33 Emigrant Creek Lane will be mitigated by the landscaping within the setback, and any interim loss of privacy during the period over which the landscaping is reaching maturity can be addressed by privacy treatments to window openings and the outdoor terraces. This is required by condition 69 of the conditions of consent, which is agreed. As such, the proposed development does not cause an unacceptable privacy impact on the properties at 31 and 33 Emigrant Creek Road.
Fifthly, with respect to the caravan park, I accept the evidence of Mr Mead that the extent of the landscaped setback, including the setback to the access road, is sufficient to ensure that there is an appropriate built form relationship, and no visual or amenity impact on the caravan park.
Finally, I do not accept that the degree of land form change required by the proposed development is unacceptable or renders the site unsuitable, in circumstances where the fill is required by the BDCP, was anticipated by the site’s zoning as R2 land, and is consistent with development carried out in the immediate vicinity of the site, such as at the Riverbend Village Retirement Community to the north of River Street.
I therefore conclude that the built form of the proposed development is acceptable against the background of the relevant controls, and in the context in which it is proposed, and does not cause any unacceptable adverse impacts on the adjoining properties. The proposed development is consistent with the design principle in s 99 of the SEPP Housing, including maintaining reasonable neighbourhood amenity and appropriate residential character by providing building setbacks to reduce bulk and overshadowing, and I am satisfied that the design demonstrates that adequate consideration has been given to the remaining principles set out in Division 6.

In circumstances where the rezoning brought about by the BLEP Amendment 54 was informed by the desire to protect biodiversity values, and where that instrument introduced the zoning table for the C2 zone containing the above objectives, the relevant enquiry concerning site suitability in light of the re-zoning relates to whether the impacts on biodiversity values are acceptable. In circumstances where I have below reached the conclusion that those impacts are acceptable (see the summary at [415]), the fact that the site is now zoned C2 is not a basis upon which the proposed development should be refused.
Further, contrary to the Council’s position, there is no requirement under s 4.15(1) of the EPA Act, the SEPP Housing or the BLEP for a seniors housing development to achieve consistency with a ‘desired future character’ of a defined area, although s 99 of the SEPP Housing requires the design to recognise the desirable elements of the current character, or, if the precinct is undergoing a transition, the desirable elements of the future character of the location. Having regard to the existing character of the locality, I accept the evidence of Mr Mead that the proposed development is compatible with that existing character. It is adjoined by a caravan park and manufactured home estate to the west, Riverbend Village Retirement Community to the north, and low density residential development along Burns Point Ferry Road to the east. The design of the proposed development, in its form, density, layout, scale, and landscape contribution, is compatible with the mix of siting, built form and landscape contribution of surrounding development. I accept the evidence of Mr Mead that, whilst the development permitted on the subject site is changed by the BLEP Amendment 54, the zoning of the surrounding land remains the same and the development on it is likely to remain into the future. Therefore, there is no basis for the Council’s contention that the change in zoning renders the proposed development incompatible with likely future development in the locality.
For those reasons, this contention does not warrant refusal of the development application, and I find that the site is suitable for the proposed development.

The proposed development is supported by a Bushfire Hazard Assessment by Blackash Bushfire Consulting dated 5 September 2024, and a separate document that considers each of the matters in s 96(2) of the SEPP Housing, which is titled Bushfire Planning Considerations and similarly dated 5 September 2024. Both documents were prepared by Mr Short, who remains of the opinion that the site is not “near” relevant bush fire prone land. The proximity of the site to land mapped as bushfire prone is shown in Figure 7.
To determine what distances might constitute “near” bush fire prone land, Mr Short opines that it should be consistent with the requirements of Appendix 1 of the PBFP to consider the vegetation that is within 140m of a building.
The Bushfire Hazard Assessment assesses the potential fire scenarios and concludes that a 25m APZ is sufficient to reduce bushfire risk and provide a safe operating environment for fire fighters if required. This assessment is based on the extent and type of plant communities on the site, and short fire run modelling for the remnant Swamp Oak Forest that “provides for less than 10kW of radiant heat at the buildings within the site” (Ex C, Tab 4, p.16). Further, the Bushfire Hazard Assessment concludes that the combination of internal and perimeter roads provides access roads that enable safe access and egress for residents attempting to leave the area at the same time that emergency service personnel are arriving to undertake firefighting operations, consistent with the requirements of the PBFP.
The Council relies on the evidence of Dr Douglas, who considers that the land, if mapped today under s 10.3 of the EPA Act, would be mapped as being bushfire prone. He also relies on the Draft Planning Directive 4.3, which concerns the preparation of planning proposals and defines “proximity to bush fire prone land” as being within 700m of land mapped as bush fire prone. Applying this distance, Dr Douglas opines that the site of the proposed development is therefore “near” bush fire prone land within the meaning of s 96 of the SEPP Housing.
Dr Douglas also opines that the APZ of 25m is not adequate in circumstances where the proposed development is for a special fire protection purpose (SFPP) having vulnerable occupants. In particular, Dr Douglas relies on the vegetation community type of Forested Wetland, and on Table A1.12.1 in the PBFP to reach the conclusion that the applicable APZ is 34m. Further, Dr Douglas’ evidence is that the failure to provide a perimeter road to the whole of the development is a contravention of the PBFP.
The Council’s position is that Dr Douglas’ calculation of a requirement for a 34m APZ should be relied upon in lieu of the short fire run method used by Mr Short, which has not been considered by the RFS, and does not take into account the future revegetation of areas of the site pursuant to the VMP. Further, the Council submits that there are shortcomings with Mr Short’s assessment of the adequacy of the access road, where he has not assessed the accessibility between units, the levels between the development pad and where the bushfire is likely to be, and the distance of the emergency access to River Street. The Council’s position is that the proposed development is ‘near’ bush fire prone land, relying on the evidence of Dr Douglas, and submits that there is insufficient information for the Court to be satisfied of the matters in s 96(2) of the SEPP Housing.
GTH’s position is instead that the proposed development is not ‘near’ bushfire prone land, and that the Draft Planning Directive 4.3 is not relevant and does not apply to s 96(2) of the SEPP Housing. Further, GTH says that the APZ calculated by Mr Short relies on the actual state of the vegetation on the site and is therefore appropriate, and the PBFP does not mandate perimeter roads. GTH therefore says that the proposed development has been designed in a manner that sufficiently addresses bushfire risk.

I note, from the outset, that the fact that the site is not mapped as bush fire prone means that there is no requirement under the SEPP Housing or the EPA Act for the proposed development to comply with the PBFP, and there is no requirement under s 4.15(1) of the EPA Act for the PBFP to be considered on the assessment of the development application. Nevertheless, the PBFP is the industry accepted best practice guide for the provision of bush fire protection, and is therefore relevant in my consideration of whether the proposed development is acceptable in light of any bush fire risk. I consider that it is acceptable, for the following reasons.
Firstly, the site is not “near” land mapped as bushfire prone. The Draft Planning Directive 4.3, which relates to what is in “proximity” to bush fire prone land, is not relevant to the interpretation of the SEPP Housing. Nor is it relevant to the assessment of development applications. Instead, it concerns requirements for the preparation of planning proposals under Pt 3 Div 3.4 of the EPA Act. I accept the position of GTH in that regard. Given that the PBFP is the recognised document in s 96(1) of SEPP Housing, and, at Appendix 1 of the PBFP, vegetation within 140m is required to be considered for the site assessment methodology, I accept the position of Mr Short that the word “near” in s 96(2) ought to be understood in a manner consistent with this. As the development area within the site is not within 140m of bush fire prone land, I do not consider that it is “near bush fire prone land” for the purpose of s 96(2) of the SEPP Housing.
Second, even if the development could be considered “near bush fire prone land”, s 96(2) of the SEPP Housing has been satisfied. In particular, the NSW Rural Fire Service was consulted on 15 March 2023, 27 March 2023 and 8 May 2024 and the comments provided on 23 August 2023 and 10 September 2024 have been considered, with GTH preparing a Bushfire Hazard Assessment dated 5 September 2024. Each of the remaining matters in s 96(2)(b) are addressed in Ex C Tab 5, which sets out the Bushfire Planning Considerations in a detailed document dated 5 September 2024. Based on that document, I have considered each of the matters in s 96(2)(b) of the SEPP Housing and there is no issue of concern that arises from those matters.
Thirdly, the APZ of 25m is acceptable based on the analysis provided by Mr Short. In the Bushfire Hazard Assessment, Mr Short has reviewed four potential fire scenarios that could affect the site. He also reviews the vegetation types, including their actual environment (including into the future), such as fragmentation by estuarine reedland and the wet environment of the forested wetland. His evidence is that he has modelled the short fire run based on the highest threat vegetation, a reduced forest fire danger index that reflects the moderated weather as it is close to the coast, and the fragmented and wet nature of the vegetation, and reaches the conclusion that the 25m APZ is acceptable. This evidence was not disturbed in cross-examination. I prefer his evidence to that of Dr Douglas, who relies strictly on the PBFP without having regard to a site specific performance based assessment.
Fourthly, I accept the evidence of Mr Short that access within the proposed development is acceptable, with a combination of internal and perimeter road access that meets the requirements for fire appliance movement, including hardstand areas, two way access within the site, and emergency access to River Road. I agree with the position advanced by GTH that the PBFP does not mandate perimeter roads within a seniors housing development. Put simply, Dr Douglas relies on a section of the PBFP concerning residential subdivision, in support of his position that perimeter roads are required. This proposal is not for residential subdivision. Instead, the access requirements are in Table 6.8b and I accept the evidence of Mr Short that the proposed development meets the acceptable solutions for perimeter roads and non-perimeter roads in Table 6.8b, based on his evidence in the joint report (see Ex 22, pp.8-9)
For those reasons, I find that proposed development is acceptably designed to manage the risk of bushfire.

The Council contends that development consent should be refused on the basis that the Court cannot be satisfied that the proposed stormwater drainage system is “consistent with the objectives of the groundwater management plan” and protects the existing hydrology of the conservation wetlands in the conservation area.
To support its stormwater design, GTH relies on a Stormwater Management Report dated 3 September 2024 (SMR) and a Hydrologic Regime Assessment dated September 2024 (HRA). The HRA informs the stormwater design outlined in the SMR, so that the design of the stormwater management system ensures that existing hydrological conditions of the conservation area are maintained.
Specifically, the stormwater management system (as set out in the civil plans by Westera Partners, in Ex A Vol 2) is designed to maintain the existing flows to the conservation area. It does so by incorporating detention tanks to control discharge so that it mimics pre-development peak flow rates, aligning discharge locations to mimic the locations where stormwater runs off the predeveloped site, and designing finished ground levels within the stormwater network to form stormwater catchments that mimic predeveloped run-off volume to the conservation area. The stormwater leaves the development site through three legal points of discharge (LPOD). The stormwater management system is designed such that, in the 1% annual exceedance probability (AEP) storm event, there is water level afflux in the conservation area of equal to or less than 10mm. This means that there is negligible change to the level of inundation of the conservation area in the 1% AEP event. Mr Ide therefore opines that the design of the stormwater management system protects the existing hydrology of the conservation wetlands, and that there are no negative impacts associated with flows from the system.
In addition, scour protection is provided to protect the conservation area from erosion, and a water treatment train is incorporated into the design, including filter baskets, gross pollutant traps and bioretention basins, to remove pollutants to comply with the Council’s load-based reduction objectives. The SWR, at Table 17, demonstrates that the proposed development complies with the requirements of Chapter 2, Section 3.9.3 of the BDCP concerning the pollutant load reductions. As a result, the pollutant loads entering the conservation area are reduced in the post-development scenario, demonstrating that there is a beneficial effect on water quality entering the conservation area.
GTH therefore submits that the Court can be satisfied that the design of the stormwater management system ensures that the volume of water going to the conservation area is maintained, including that the distribution of the water over the year is similar. GTH also submits that the Court can be satisfied that the stormwater treatment conditions means that the stormwater pollutant reductions achieve the requirements of the BDCP and are consistent with what is required to maintain the existing wetland water quality.
The Council remains concerned that the concentration of stormwater flow will have consequential impacts on the wetland ecology. The Council relies on the evidence of Mr Thomas, who opines that the reduction in the areas draining to LPOD 2 and LPOD 3 has the potential to ‘starve’ the wetland of freshwater flow. He also opines that the increase in flow rate for Outlet 2B, which discharges into LPOD 2, may have a negative impact on the long term condition of the wetland. Mr Thomas also has three concerns with respect to the design of the stormwater management system. The first is that he opines that the GPT for bioretention basins 1 and 2 should be located upstream, prior to water entering the basins, so as to prevent the accumulation of pollutants in the basins. The second is that he disputes the use of the Mannings value of 0.035 for the main flood channel, which was used in the flood modelling. Thirdly, he considers that the absence of a vehicle track around Basin 1 means that there is insufficient room for excavation equipment to be appropriately located when carrying out maintenance on the basin.

Having regard to the HRA and the evidence of Mr Ide, I am satisfied that the proposed stormwater management system is acceptable and that none of the matters raised by the Council in this contention warrant refusal of the development application.
Firstly, based on the detailed analysis in the HRA, I accept the evidence of Mr Ide that the stormwater management system ensures that existing hydrological conditions of the conservation area are maintained, through all of the means described above at [148]. The system is designed to maintain existing flows to the conservation area by managing discharge through detention tanks, aligning discharge points with existing stormwater flow paths, and designing finished ground levels to form catchments that mimic the predevelopment catchments. In the 1% AEP event, there is negligible change to the level of inundation in the conservation area. Accordingly, Mr Thomas’ opinion that the wetlands will be ‘starved’ of water cannot be accepted. Indeed, Mr Thomas conceded in cross-examination that the work done in the proposed system concerning the volume and flow of stormwater does a “pretty good fist” of mimicking or replicating the existing conditions.
Secondly, scour protection is provided to protect the conservation area from erosion, and the experts agree that the stormwater treatment within the stormwater system has been adequately modelled and demonstrates that the treatment train achieves the targets for pollutant load reductions required by the BDCP. Accordingly, I accept the submission made on behalf of GTH that, pursuant to s 4.15(3A)(a) of the EPA Act, the Court, exercising the functions of the consent authority, cannot require more onerous standards for the water quality outcomes for the proposed stormwater management system. The result of compliance with these reduction targets is that the proposed development has a beneficial outcome on water quality.
Thirdly, there is nothing that requires the GPT to be upstream of the bioretention basin. As can be seen in the competing positions of Mr Thomas and Mr Ide, there are benefits to either of the two locations. Mr Ide opines that downstream of the basin will mean that only mitigated flows will pass through the GPT, which will also minimise the number of GPTs required. Whilst Mr Thomas opines that it would be a better outcome to have the GPTs located upstream to prevent pollutants entering the basin, he concedes that this is “not essential” (Ex 7, p.12). Given that I have found the proposed stormwater management system acceptable, in the absence of either a measurable adverse impact of the current GPT locations or a control requiring a particular location for the GPT, there is no reason to concern myself with the question of whether there is a better location for the GPTs than that currently proposed.
Fourthly, I accept the evidence of Mr Ide that there is adequate room for the maintenance of Basin 1 by an excavator, by entering by the concrete access track to the sediment forebay and around the perimeter bund. This is shown in an overlay of the plan for Basin 2, in Ex 8 p.10. Mr Ide expects that materials would be loaded and unloaded from Road 8, and an excavator would track along the perimeter bund and place or excavate material as required. Therefore, the development application ought not be refused on the basis that there is no access track around Basin 1.
Fifthly, the Mannings value of 0.035 for the main flood channel, used for the stormwater and flood modelling, is within the parameters of the Council’s policy for the modelling of an open channel. This is contained within Section D5.13 of the Northern Rivers Local Government NSW Development Design Specification for Stormwater Drainage Design, which specifies a Manning’s roughness co-efficient of 0.033 for open channels with short grass. Further, the parties have agreed to a condition of consent that requires an operational plan of management to specify maintenance of the open channel area “to ensure that the vegetation across that surface has a density and effective roughness equivalent to a Mannings ‘n’ roughness coefficient of not more than 0.035” (condition 20A(i)). Accordingly, the modelling of the open channel with this Manning’s roughness co-efficient is an accurate representation of the post-development scenario and does not cause any issues that would warrant refusal of the development application.
In relation to the remaining particulars that relate to contention 13, the Council agrees that particulars (a), (c), (d), (e) and (h) are resolved. The SWR and HRA provides adequate detail of the changes to flows at the three LPODs, such that particulars (b) and (i) simply do not arise. As set out above, the post development flows to the conservation wetlands replicates existing flows, with an improvement on water quality. Therefore, there is nothing remaining in this contention that warrants refusal of the development application.

The Council’s contention on this issue is particularly concerned with whether there are any changes to the hydrology of the conservation area wetlands, which have been found to be groundwater dependant ecosystems. The contention raises particulars as to whether there is enough evidence to support the conclusion that there is a hydraulic barrier through the site, whether there is evidence that the groundwater from the western portion of the site will not transition to surface water when it exfiltrates at the north-south drain, whether the construction of the fill pads will change groundwater flow, and the adequacy of the assessment of current groundwater movement. The remaining concerns relate to surface water, which I have dealt with in my findings on the stormwater design.
In its submissions, the Council identified three issues. The first is the use of the linear regression model in the BWQMMP, which is dealt with in the contention further below. The second is the surface water trigger levels in the CEMP. The third is the impact of the fill pads on groundwater, particularly in the context of the change in vegetation around the base of the test fill pads.
The Council’s position is supported by the evidence of Mr Thomas and Mr Roberts. They opine that there is insufficient information to suitably describe the existing hydrology of the site. Mr Thomas considers that there should be a baseline understanding of the hydrology of the wetland during a typical range of dry, average and wet conditions, to which the post development scenario should be compared. Mr Thomas opines that the central north-south drain does not operate as a drain and the water instead ponds at the drain, which can lead to a spill over of water into the wetland in certain conditions. Mr Thomas is therefore of the view that the groundwater from the development area will no longer be a source of water for the wetland. In relation to the impact of the pre-load stages of construction for the fill pads, Mr Thomas says that there will be an uncontrolled volume of groundwater ‘squeezed’ through sand layers to the wetland during this phase of construction, which will change the hydrology of the wetland.
GTH’s position is instead that the 2024 GWMAMP and the evidence of Dr Matthews sufficiently demonstrates that the proposed development makes no material contribution to the groundwater supply for the groundwater dependent ecosystems and wetland, for four key reasons. Firstly, due to the central drain forming a boundary between the development area and the wetland, which controls the rate of flow. The central drain is described as having “a moderating effect on groundwater levels, both intercepting groundwater flows following rainfall, but also acting as a source for surface waters to enter the groundwaters during low rainfall and/or dry periods” (Ex C, Tab 6, p.24). Secondly, the extensive analysis of the velocity of groundwater flow, shows that the velocity is so slow that there is no possibility that the site development footprint groundwater could contribute to the wetland. The wet years, which Mr Thomas says the monitoring occurred within, would be a period in which the most groundwater would flow, yet the velocity was at 2 metres each year. Thirdly, the development site plants will take the water in the same way that the current plants do, to such an extent that there is no water remaining for transfer to the wetland. Fourthly, the cluster analysis shows that the chemical concentrations that characterise the groundwater of the development area are different from the groundwater of the wetland. As such, the groundwater and water table of the wetland is not presently charged or influenced at all by the groundwater in the area to be developed, and that will remain in the post-development scenario.
In addition, GTH points out that there are three plans of management that have been prepared to ensure that there is monitoring and management of both surface and groundwater, to protect the existing wetland water quality conditions. These are the 2024 GWMAMP, the BWQMMP and the Conception Soils and Water Management Plan dated 29 November 2023.

I above concluded that the stormwater management system ensures that, with respect to stormwater, the existing hydrological conditions of the conservation area are maintained in the post-development scenario. What remains is only whether there are any unacceptable impacts from groundwater that moves from the development site, or any unacceptable impacts on the groundwater of the conservation area, and, in particular, the wetlands. Based on the evidence, I form the conclusion that transfer of groundwater to the wetland from the development area is so unlikely that any consequential impacts are so negligible that they do not warrant refusal of the development application. I reach this conclusion for the following reasons.
Firstly, the evidence before the Court supports the conclusion that there is a hydraulic boundary that is coincident with the central drain, which limits the exchange of groundwater between the development area and the adjacent wetland, which stretches from the south of the site up to the areas to the east of the development area. This is demonstrated by the k-means cluster analysis, which indicates dissimilar characteristics between the bores within the wetland and the bores to the west, and therefore a separation of the groundwater systems or a limited exchange between the proposed development footprint and the wetland. It is also supported by the sub-surface profile in the hydrogeological conceptual model, which has clays accumulated in the vicinity of the buffer and central drain. This is described in Dr Matthew’s evidence and outlined in the 2024 GWMAMP, and I accept Dr Matthew’s evidence in that respect. Mr Thomas’ evidence on this point is not persuasive, as he does not engage with the groundwater analysis or the sub-surface profile, and instead is concerned with the function of the drain and whether there is an interchange of surface water.
Secondly, the small groundwater gradient and the low permeability of the subsurface clay means that the velocity of groundwater movement is so slow that groundwater from the development site will not be transferred to the conservation area. The velocity of the groundwater is estimated to be two metres a year. I accept the evidence of Dr Matthew that, even if there was movement of groundwater, the low velocity and the existence of the 25m buffer zone means that it is entirely unlikely that the groundwaters of the conservation area will be altered by the proposed development. This also means that, contrary to Mr Thomas’ assertions, it is not possible for groundwater from the north-western portion of the site to spill into the adjoining area, including the wetlands, by transitioning to surface water when it exfiltrates the drain. This is because the small groundwater gradient, coupled with the low permeability of intervening clays in the buffer zone, means that the Darcy velocity is insufficient to transfer the water to surface water.
Thirdly, I accept the evidence of Dr Matthew that the recharge of the water table in the development area is rainfall dependant, and that due to the sub-surface profile, the estimated recharge of the water table on the site is only 0.6% of rain. This, together with the low elevation of the site, means that deep percolation of the rain to groundwater is not possible and lateral transfer to another part of the landform is unlikely. This means that any recharge of the water table in the wetlands from rainfall is within 5m of the wetland extent, and does not occur through transfer of groundwater from the development area, either presently or in the post-development conditions (see Ex 10, [4]-[5]).
These three reasons are sufficient to establish that any change to the groundwater of the development area will not transfer to the conservation area, and will not have an adverse impact on the groundwater of the wetlands. As summarised by Dr Matthew (at Ex 9, [28]):

Further, the already negligible likelihood of the movement of groundwater from the development area to the wetlands is further reduced by the evapotranspiration that will occur in plantings across the development area and within the buffer. I accept the evidence of Dr Matthew in that regard. In present conditions, during low rainfall conditions, the vegetation on the development area consumes the water table, leaving no transfer to the wetland.
None of the matters raised by Mr Thomas or Mr Roberts dissuade me from this conclusion. Contrary to their evidence, the model has sufficient site information, including sufficient boreholes, to form the basis for the conclusions reached by Dr Matthew and Mr Elkington. The fact that monitoring occurred during a period over which there was larger than normal rainfall is of little consequence, given that the groundwater system of the development area is rainfall driven so that understanding the current movement of groundwater can be done outside of the dry periods. In any event, the monitoring included drier months, and Dr Matthew was able to conclude that during drier conditions the groundwater would be lower on the development area but unchanged on the wetlands, given evapotranspiration is greater on the development area and tidal inundation occurs in the wetland.
Despite their repetition of the requirement for ‘baseline’ data, Mr Thomas and Mr Roberts were unable to articulate any other information that would reasonably be required to understand how the movement of groundwater might affect the wetland in the post development scenario. Mr Thomas’ suggestion of using a dye, where the velocity of groundwater movement is two metres a year, is entirely unreasonable. In my view, it is clear from the evidence that the current movement of groundwater across the site is sufficiently understood so as to form the conclusion that the proposed development will have negligible impact on the groundwater of the conservation area, and that it will not result in groundwater transitioning to surface water in the conservation area.
Further, I prefer the evidence of Dr Matthew and Mr Elkington with respect to the impact of the preload stages on groundwater, to that of Mr Thomas and Mr Roberts. The opinion of Mr Thomas that there will be an uncontrolled volume of groundwater ‘squeezed’ through sand layers to the wetland during the pre-load phase of construction is simply not supported by the sub-surface profile informed by the actual surveying of the site and the boreholes. Given the modelling of the subsurface profile does not indicate a uniform drainage layer connecting to the wetland, the excess water generated by the preload will be restricted in its lateral flow and will remain groundwater due to the surface clay. Consistent with the evidence of Dr Matthew, if there is surface expression of the groundwater, it will form only a very small portion of runoff from the site and will be managed in the same way that the surface water is managed by the CEMP. The quantum of this water is less than 1% of the average rain and surface runoff to the wetland, and is therefore within normal climatic fluctuations that can be absorbed by the environment. However, the monitoring of the preload trial embankments has found that there was no surficial water generated around the perimeter of the trial embankments, which supports Dr Matthew’s opinion that the groundwater does not express itself as surface water. The water quality of the existing groundwater is known, and is proposed to be monitored throughout construction in accordance with the final CEMP, which includes the draft GWMMP. Therefore, there is no impact on the wetland from the pre-load stages.
Finally, there is no evidence that the change to vegetation type that has occurred around the test pads, pointed out by Ms Reid, will be somehow mimicked in the post development scenario. The design of the stormwater management system ensures that the development continues to mimic and replicate the current hydrology of the site with respect to surface water flows to the wetland, and the proposed development does not alter the groundwater of the wetland for the reasons expressed above.
For the above reasons, there is sufficient information before the Court to conclude that there are no adverse groundwater impacts on the conservation area arising from the proposed development, and that the groundwater monitoring and the proposed draft GWMMP to manage groundwater is acceptable. The groundwater of the wetlands is not presently influenced by the groundwater in the area to be developed, and that will remain in the post-development scenario. None of the matters raised in this contention by the Council warrant refusal of the development application.

In its insufficient information contention, the Council raises issues with respect to the BWQMMP. In particular, the Council contends that the BWQMMP does not state who the monitoring programs will be implemented by, and does not adequately justify the methods by which site-specific water quality criteria were developed or provide adequate corrective measures. The Council submits that the use of the linear regression model is not appropriate to validate the baseline water quality data, consistent with the concessions made by Dr Matthew in cross-examination. The Council also submits that the Court cannot have confidence in the surface water trigger levels in the CEMP. Further, the Council relies on the evidence of Mr Howland that the water quality guidelines relied upon in preparation of the BWQMMP are outdated.
The evidence of Mr Howland is that the Australian and New Zealand Guidelines for Fresh and Marine Water Quality (2000) (2000 ANZECC Guidelines) have been superseded by the Guidelines for Water Quality Management (2018). There are two respects in which Mr Howland says this is relevant. The first is that he says that use of the 10-90th percentile band is not appropriate, and the 20-80th percentile bands should be used to achieve water quality improvement. The second is that Mr Howland says that the baseline should be established by the use of data from a suitable unimpacted reference site, and that an impacted site, such as the present site, is not appropriate to be used to derive baseline values.
In addition, Mr Howland opines that a Type II error (false negative result) is more relevant than a Type I error (false positive), and that it is not ‘best practice’ for the BWQMMP to argue that a single exceedance of a trigger value is not cause for further investigation. He considers that this will delay response to issues that arise, if the first exceedance is ignored.
GTH instead submits that the BWQMMP is based on an extensive period of investigation that has considered past uses of the site, changes to the landform, changes to the use of the land over time, changes to the coastal processes that affect the site, and a considerable period of monitoring through varying rainfall periods. GTH therefore submits that the conclusions within both the BWQMMP and the 2024 GWMAMP are based on extensive and reliable investigations.

As set out in the evidence of Dr Matthew, the Council has not produced specific water quality objectives and relies on the 2000 ANZECC guidelines to monitor and assess the health of aquatic ecosystems within the Ballina Shire Council area, managed by the Council (see Ex 9, [115]). The approach taken in the BWQMMP mirrors that taken by the Council in its scoping study for the North Creek Coastal Management Program (2019).
I therefore consider that the approach taken by the BWQMMP to use site-specific data and the 10% and 90% values as the trigger value is adequately justified by the BWQMMP itself, and appropriate in the circumstances.
In relation to Mr Howland’s concerns about a single result that exceeds the criteria not automatically triggering a response, a monitoring round to test the proposed trigger values was undertaken on 30 January 2024. The results are at Table 6.1 of the BWQMMP and would have resulted in triggering an investigation, notwithstanding that there is no development being carried out. This demonstrates that the trigger values are within the natural variability, and are therefore conservative. As such, I do not accept Mr Howland’s criticisms of the BWQMMP concerning the parameters that trigger an investigation.
Part 8 of the BWQMMP outlines the required monitoring, the person responsible and the potential corrective action. I accept Dr Matthew’s evidence that it is appropriate for the BWQMMP to focus on the most likely issues that arise, and that, if other issues arise from the ongoing monitoring, contingency plans can be developed by an appropriately qualified person based on the outcomes of an investigation of the issue.
In my view, the use of the 2000 ANZECC guidelines to arrive at site-specific water quality criteria means that there are appropriate trigger levels in place in the BWQMMP and the CEMP, which are appropriately measured against the site specific water quality targets to understand whether the development is causing an adverse impact. The BWQMMP includes sufficient details on water quality monitoring, appropriate trigger levels and adequate corrective measures to address poor water quality results, and I accept that it is appropriate for it to contain scope for more detailed corrective measures that are adaptive in nature if issues arise. Therefore, none of the issues raised by the Council concerning the BWQMMP warrant refusal of the development application.

The mapping of the site, in accordance with the BDCP, is across the medium, high and extreme flood risk areas, with the development area wholly within the medium flood risk area (other than a portion to the west along Emigrant Creek that is mapped high risk). This is shown in Figure 8.
In addition, the flood mapping in the BDCP shows the medium flood risk area of the site as “Areas Filled in Integrated Flood Model – Fill Consent Not Granted”. This means that, for the purpose of the integrated flood model used by the Council to formulate the base case catchment flood behaviour in the 2012 Floodplain study, this area is modelled as being filled. The area of land to be filled by the proposed development is less than what is shown as being filled in the BDCP flood mapping.
The site is identified in the 2012 Floodplain Study as having a Richmond River dominated flood.
Chapter 2B of the BDCP contains prescriptive measures that, if complied with, are expected to satisfy the objectives of the NSW Government Flood Prone Lands Policy, as well as the planning objectives in Clause 2.1 of the BDCP. Those prescriptive measures include three matters that were the subject of evidence from the parties’ experts: the filling of the land, the finished floor level of the dwellings, and the third party impacts of the development on other land.
With respect to the filling of the land, the BDCP requires that climate change is required to be factored into calculating the flood planning level (FPL). That is to be done in accordance with the benchmarks of 40cm by 2050 and 90cm by 2100 for sea level rise, and an increase in rainfall intensity by 10%. The BDCP contains maps showing the applicable FPL and minimum fill level (MFL). Schedule D then sets out the prescriptive measures for development in each flood risk zone, which depend on the type of development. In the Table at Schedule B of Chapter 2B, ‘seniors housing’ is considered both a “sensitive use and facilities” as well as a “residential” land use. The Schedule D prescriptive measures for the medium flood risk precinct are shown in Figure 9.
The relevant prescriptive measures for the ‘residential’ land use, one of the categories within which seniors housing falls, are as follows:

Despite there being no requirement in the BDCP for third party impacts of flooding to be assessed for the medium flood risk precinct or for infill development in relation to which the filling of the land is already mapped by Council, the FIA sets out the method and results of flood modelling carried out by GTH to understand those impacts. The flood modelling was based on the Council’s base case flood model from the 2012 Floodplain study, with upgrades to utilise the 2023-03 version of TUFLOW. However, for the Richmond River dominated events, the impacts were modelled using the TUFLOW 2018 version of the flood model. The FIA concludes that, based on the modelling, peak flood level impacts are no more than 10mm and are contained within the site, except for the following:
For local catchment flooding, the 1 in 100 AEP event produces a small area of increased flood level of up to 20mm in the corner of the neighbouring residential lot to the west, in an open space area that already floods. Other areas of the residential lot have decreased flood levels by up to 30mm.
In the storm surge dominated flooding, there are flooding impacts of no more than 10mm on the Burns Point Ferry Road road surface.
In response to the FIA and in the joint expert report, Mr Thomas raised a number of concerns. Mr Thomas asserted that there should be an assessment of the current flood function of the site against which the post development scenario can be considered. He also expressed that the 20mm impact on the neighbouring property is not acceptable, that there were areas of unexplained afflux in the model, that the emergency access road had not been included in the modelling, that the Mannings’ value of 0.035 was inconsistent with the landscaping plan, that no assessment of flow velocity changes had been made, and that no blockage had been applied to the culverts in the model.
In response to these concerns, GTH relied on further modelling prepared by Water Engineering Partners (Ex G), which demonstrates that:
The emergency access road is to be suspended over the flood path, so the inclusion of the road in the modelling does not produce any flood impacts external to the site.
The impact on the residential property to the west in the 1 in 100 AEP is only 13mm over an external area of 95m2 at the front of the property, where flooding already occurs.
The modelled increase in flood level on the verge of River Street for the 1 in 100 AEP Emigrant Creek event is a product of civil works to create a table drain to collect runoff. The change in water level reflects the formalisation of the table drain.
The modelled impacts previously shown with respect to storm surge on Burns Point Ferry Road were the result of an anomaly and are no longer reflected in the updated model.
The areas of increased flow velocity as a result of discharge from the culverts proposed in the eastern part of the site adjacent to Burns Point Ferry Road were found to be small and localised to the immediate area of the outlet to the culvert.
The increase in velocity on Burns Point Ferry Road is minimal and does not impact vehicle or pedestrian safety, and does not result in a change in hazard associated with the road.
Applying a 50% blockage to culverts, the resultant impact was minimal and does not produce offsite impacts.
For proposed landscaping the Manning’s ‘n’ values were adjusted as requested and the sensitivity testing determined minimal changes in level for local, river and storm surge flooding and does not result in offsite impacts.

The FERP reviews the evacuation routes available from the site, as identified in the 2012 Floodplain Study and makes it clear that shelter in place can occur in the dwellings due to their floor levels being above the 1 in 100 ARI flood event, and in the clubhouse facility for the PMF event. However, it also makes it clear that the primary flood emergency response strategy for riverine flooding is for residents to evacuate off-site to outside of the floodplain, and that there is sufficient time for this to occur before evacuation routes become impassible. The FERP makes it clear that:
For riverine flooding, the site would only be subject to riverine flooding in events significantly larger than the 1% AEP event, but would be cut off from other areas in riverine events greater than the 5% AEP event.
For local catchment (Emigrant Creek) flooding, the site would not be inundated in events of any magnitude, but in large creek floods greater than the 1% AEP, Unit 1 and the manager’s residence may have their access to the clubhouse cut off.
For storm surge flooding, the development itself would not be flooded in the 1% AEP storm tide event, although access to the north would be cut by floodwaters for most vehicles, except that emergency service vehicles would still be able to access the site in storm surge events of this magnitude.
The issue with the site, and the surrounding area, is that evacuation onto the evacuation routes identified in the 2012 Floodplain Study causes people to travel on roads that are themselves affected by flooding in frequent events, such as the 5% AEP flood, whilst the development area remains unaffected by flooding in those events and events up to the PMF. The 2012 Floodplain Study identifies the site as being located in evacuation Zone D, with an evacuation route west along the Bruxner Highway to an evacuation centre at Alstonville. However, there is an area of Bruxner Highway that has an elevation of 1.3m AHD and would flood in riverine events more frequent than the 5% AEP and is therefore not the preferred evacuation route. The 2012 Floodplain Study includes an alternative evacuation route for Zone D, heading north on the Pacific Motorway, which is more suitable but includes a low point that would be inundated by low depth riverine flooding in the 5% AEP event. The FERP makes it clear that there is sufficient warning time to use this route in the event of riverine flooding, before the low point is affected by floodwaters.
The FERP therefore sets out the appropriate alternative evacuation route for the site, and prioritises evacuation for riverine flooding, which is an event in which there is sufficient warning to evacuate. The FERP outlines the trigger levels at which evacuation should occur, and when it is too late to be pursued.
The FERP also sets out the residual risk of isolation caused by local creek flooding, for which there is no flood warning, and sets out the reasons why the clubhouse is an appropriate flood refuge. As stated by the FERP, in recognition of the short warning times available and the dangers of evacuating ahead of local flash flooding, the 2012 Floodplain study “recommends a shelter in place strategy in response to flooding from Emigrant Creek”, and therefore, consistent with that study, the FERP requires shelter in place in response to creek or storm surge flooding unless riverine flooding is anticipated.
For the most part, the period of isolation in these scenarios is less than 12 hours, except in a very rare event. This requires the clubhouse to be provisioned with the following:

The Council remains of the position that there is inadequate assessment of flood impacts and flood risks, and the flood evacuation procedure is inappropriate.
In relation to the additional flood modelling that occurred that resulted in Ex G, the Council relies on the evidence of Mr Thomas that he requires additional time to “interrogate the model” in circumstances where previous work in the modelling had not been replicated. Mr Thomas asserts that, without doing so, he could not be satisfied as to whether what had been modelled was appropriate. The Council also relies on his evidence that the existing flood condition should have been modelled, in order to understand the impacts of the proposed development. The Council submits that Ex G is not expert evidence, and neither Mr Thomas nor Mr Bewsher have had the opportunity to check the input values, and that it ought not be relied upon.
The Council also relies on the evidence of Mr Thomas that the impact on the neighbouring dwelling house is unacceptable, and disputes Mr Bewsher’s position that issues about that impact or further modelling could be dealt with by way of condition.
In relation to flood evacuation, the Council’s position is that the procedure outlined in the FERP will not effectively and safely manage residents in a flood emergency, and that the proposal to shelter in place in certain flood events is contrary to the SES position that shelter in place is not appropriate for future development and greenfield development. The Council relies on the feedback from SES, which recommends that the development should not proceed (Ex 2, Vol 3, p 205). In particular, the SES considers the proposed development ‘high risk’ on the basis that it is situated in a high risk floodplain, has limited evacuation opportunities, is in an area of known and historical flooding, is exposed to high hydraulic flood hazards, and proposes seniors housing. The SES also asserts that the filling of the site can cause increased flood risk elsewhere in the floodplain. In relation to evacuation in particular, the SES feedback includes the following assertions:
The site has been specifically identified by the NSW SES as operationally constrained due to emergency access and egress difficulties for Burns Point Ferry Road.
Road closures due to low points occur at multiple locations along the evacuation route, starting at 1.78m AHD both sides of River Street, and the intersection with Burns Point Ferry and Emigrant Creek Lane at 1.99m AHD.
During the 2022 flooding, NSW SES attended a number of traumatic flood rescues in the immediate vicinity of the site, including people trapped in floodwater and people requiring urgent medical attention.
'Shelter in place' strategy is not an endorsed flood management strategy by the NSW SES, and there is no known safe period of isolation, with other emergencies arising during the shelter in place period.
Shelter in place, as well as increased numbers of people in areas requiring evacuation, unnecessarily exposes emergency service personnel to flood situations which may lead to injury or death.
Evacuation of hospitals and aged care can be complex and is known to be associated with an increased rate of mortality in patients and nursing facility residents. The study used to support this assertion is based on the nuclear disaster in Fukushima.
Managing evacuations in the Ballina area is already complex, and adding additional vulnerable people and variable emergency response strategies would further result in increased complexity and reliance on unpredictable human behaviour.
The NSW SES would need more resources to increase response capability for the life of the development.
The Council submits that the FERP puts the responsibility of emergency management on the residents, and the single staff member with wardens who will manage that process. The Council says that the wardens “are required to make an assessment of flood risk, when to evacuate and when to shelter in place by reference to a complex set of warning tools and an understanding of flood behaviours as set out in the FERP” (RWS 23/9/24, [113]). On that basis, the Council submits that the FERP is unacceptable.

On one view, it is extraordinary that the Council has raised flood impacts and flood evacuation as an issue in the proceedings. A large area of the site has been modelled as being filled in the Council’s base case scenario, on which the 2012 Floodplain study relies. That area goes beyond the area to be filled by the proposed development. It seems axiomatic therefore, that the Council relies, for its flood management across the locality, on the site being filled, and the proposed development will ensure that a larger area for flood storage and flood fringe is maintained than what has been modelled in the 2012 Floodplain study. The base case scenario in the 2012 Floodplain study has also been used for evacuation route planning across the region.
Further, the framework for the assessment of a development application is set out in s 4.15 of the EPA Act. Whilst the likely impacts of development is a mandatory consideration pursuant to s 4.15(1)(b), the assessment of acceptability of impacts is appropriately carried out against the applicable provisions of the relevant local environmental plan and development control plan, which are mandatory considerations under s 4.15(1)(a). In the present proceedings, the applicable clause of the BLEP is cl 5.21 and Chapter 2B of the BDCP contains the performance criteria for flood planning. As described by Spigelman CJ in Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167, whilst the consent authority has a wide ranging discretion in considering the matters under the now s 4.15(1), the provisions of the BDCP are “to be considered as a “fundamental element” in or a “focal point” of the decision making process” (at [75]). Section 4.15(3A)(a) makes it clear that, if the applicable provisions of a development control plan “set standards with respect to an aspect of the development and the development application complies with those standards”, the consent authority “is not to require more onerous standards with respect to that aspect of the development”. The sub-section stipulates that the word “standards” include performance criteria. It is therefore sufficient for the proposed development to comply with the performance criteria in the BDCP.

Having regard to the evidence before the Court and the provisions of the BDCP, I am satisfied that the flood impacts on and from the proposed development are acceptable. I reach this conclusion for the following reasons.
Firstly, the proposed development meets the performance criteria in Section 3.7.2(v) of the BDCP not to “detrimentally increase the potential flood affectation on other development or properties either individually or in combination with the cumulative impact of development that is likely to occur in the same floodplain”. The criteria further states that “Development should not change the height or behaviour of flood waters elsewhere in the floodplain in a manner which is likely to materially and adversely impact other property or the environment.” In both the FIA and the further modelling in Ex G, the modelling showed no detrimental increase in flood affection on other development, and no change to the height of floodwaters that would “materially and adversely impact other property or the environment”. By assessing the impact using the Council’s base case scenario in the 2012 Floodplain study, which includes potential future development based on the zoning, the FIA includes an assessment that incorporates “the potential for similar impacts that would arise as a consequence of other development in the floodplain that has the potential to occur in the future under current zoning and planning controls”, as required by this performance criteria.
Further, none of the areas or quantity of flood afflux identified in the FIA or Ex G cause a flood increase that will detrimentally increase the potential flood affectation on other development or properties, or that will materially or adversely impact other property or the environment. There are no areas within the catchment that will be newly affected by flooding as a result of the proposed development. In particular:
The increased flood level of less than 20mm in the corner of the neighbouring residential lot does not increase the flood affectation of that property, as it is a negligible increase in an open space area already affected by flooding, and there are decreases in flood levels elsewhere on that property.
The impacts of no more than 10mm on the Burns Point Ferry Road road surface, which were shown in the FIA but were removed with refinement of the model in Ex G, if they are to exist, are negligible and do not affect property or the environment.
I accept Mr Bewsher’s evidence that the modelled increase in flood level on the verge of River Street for the 1 in 100 AEP Emigrant Creek event reflects the formalisation of the table drain.
The increase in velocity on Burns Point Ferry Road is minimal and does not impact vehicle or pedestrian safety, and does not result in a change in hazard associated with the road.
Applying a 50% blockage to culverts, the resultant impact was minimal and does not produce offsite impacts.
I do not accept that any issue of procedural fairness arises from Mr Thomas being unable to “interrogate the model” that led to the modelling outputs shown in Ex G. The fact is that Ex G (and the modelling that informed it) was a response to his concerns. Those concerns were raised in a context where the BDCP does not require modelling of off-site impacts for infill development, or for areas of land in the medium flood risk precincts where the filling of the land has been mapped by the Council (see Section 3.12 of Chapter 2B). The FIA demonstrates that the peak flood level impacts are no more than 10mm and are contained within the site, except for the area on the neighbouring property and areas on Burns Point Ferry Road. Ex G, prepared in response to Mr Thomas’ concerns, does not alter that conclusion, other than excluding the areas on Burns Point Ferry Road. In addition, although the interim policy does not require an assessment of the afflux for the proposed development, the afflux on the neighbouring property is within the tolerance of “50mm cumulative impact compared to 2005/2013 pre-existing baseline” described in the Council’s interim policy. Having regard to the evidence, the BDCP, the Interim Policy, and the 2012 Floodplain Study, there is simply no basis upon which it could be concluded that the proposed development unacceptably increases the potential flood affectation of other properties.
Secondly, the proposed fill levels and floor levels comply with the requirements of the BDCP. Pursuant to the prescriptive measures in Schedule D, the required finished floor levels of the dwellings are 3.2m AHD for habitable floors, and 2.4m AHD for non-habitable floors. These are complied with. In fact, having regard to Ex F, the finished floor levels of each dwelling are all above the PMF in both the present-day and year 2100 climate change conditions, which is agreed to be 3.6-3.8m AHD and 3.8-4m AHD respectively. This includes the manager’s unit, which has a ground floor level of 4.16m AHD. The evidence of Mr Thomas to the contrary is unfounded.
Thirdly, I accept the evidence of Mr Bewsher that the proposed development maintains the flood function of the site. I accept his evidence that the function of the site, to convey flood flows across its surface, is preserved for river, creek and ocean flooding, and that this is done through the introduction of the main flood channel. I accept his evidence that this conveyance function ensures off-site impacts do not occur, as reflected in the FIA, and the existing watering of the wetland areas within the conservation area, continues, as shown in the HRA. His evidence is that, in terms of the three hydraulic categories recognised by the Floodplain Development Manual (floodways, flood storage and flood fringe), the site functions as flood storage or flood fringe in the various river, creek and ocean events which can inundate the site, and, whilst the filling of the parts of the development area will alter the spatial distribution of flood flows, those functions are nevertheless maintained through the introduction of the main flood channel.
None of the matters raised by Mr Thomas dissuade me from these conclusions. Mr Thomas insisted that flood mapping should be carried out to model the ‘existing condition’ to ascertain the current flood function of the site, and to understand the precise impacts. However, in circumstances where the Council has a comprehensive integrated model that informs the 2012 Floodplain Study, which incorporates future development based on zoning and approvals, it is acceptable for that integrated model to be used for the base case flood behaviour against which flood function and impacts can be considered. Further, I concluded above at [157] that the Mannings value of 0.035 for the main flood channel is within the parameters of the Council’s policy, and, at [208], that there is nothing in the BDCP that requires consideration of the Australian Rainfall and Runoff chapter on climate change considerations released on 27 August 2024.
Further, the assertions made in the SES letter concerning flood behaviour are not properly founded. Their identification of the site as being in a high risk flood zone has no proper basis in light of the mapping of the development area in the medium risk flood zone. Their assertion that the filling of the site could increase flooding elsewhere in the catchment ignores the fact that a large area of the site is mapped as being filled in the integrated flood model used by the Council to formulate the base case catchment flood behaviour in the 2012 Floodplain study, which informs the evacuation routes and flood planning across the region.
For all of the above reasons, the flood impacts on and from the proposed development are acceptable.

As set out above at [205]-[206], “reliable access” is defined in the BDCP as the ability for people to safely evacuate “to a refuge area within effective warning time”, and “a refuge area” is defined as “an onsite refuge or reliable access to ground that is located above the PMF that provides reasonable shelter”.
The proposed development, with the evacuation strategies set out in the FERP, meets the performance criteria in (iii) in two ways.
Firstly, for riverine flooding, where there is not local flooding or storm surge flooding occurring at the same time, the FERP sets out an appropriate trigger level (a gauge reading of 7m at the Coraki gauge) that provides 24 hours lead warning to evacuate the site by vehicle, and sets out the appropriate evacuation route, to ground that is located above the PMF. The FERP notes that even if a 1% AEP creek flood and a 1% storm surge event occurred ahead of the arrival of riverine floodwaters, the time available for evacuation would be reduced to 15 hours, which is still sufficient to evacuate the site by vehicle along the evacuation route, before the route is cut off by floodwaters.
The second way that the performance criteria in (iii) is met is by the provision of the clubhouse as a refuge area that can be accessed in all types of flooding. There is sufficient time for residents to reach this refuge area, with the internal roads above the 1% AEP event and a water level meter and alert system to be installed onsite. If the 1% AEP event is expected to be exceeded, occupants will have sufficient evacuation time from the trigger level of 2.1m AHD at the on-site gauge, with a 6 hour time period to reach the clubhouse before some of the dwellings in the north-eastern corner of the site are cut off from the clubhouse by floodwaters (if the PMF is reached).
Both of these two strategies meet the requirements of the performance criteria in (iii) of Clause 3.7.2 of Chapter 2B of the BDCP by providing “effective warning time” and “reliable access” as defined. Pursuant to s 4.15(3A)(a) of the EPA Act, this performance criteria is met and the consent authority “is not to require more onerous standards with respect to that aspect of the development”. The Council’s position that all occupants should evacuate off-site is a more onerous standard that cannot be applied.
I am satisfied that performance criterion (iv) of Clause 3.7.2 is also met, as the FERP sets out appropriate procedures, including warning systems and the use of a flood warden, “so that people are aware of the need to evacuate personnel and relocate goods and motor vehicles during inundation, and are capable of identifying an appropriate evacuation route”. Mr Thomas’ concerns about evacuation fatigue or a refusal to follow directions, are mere speculation and have no factual basis. The FERP is clear in the trigger levels, shown at Figure 10, and the very fact that the proposed development is a seniors housing development with on-site management and a central PA system, makes it more likely that the trigger levels and evacuation strategies will be complied with.
None of the SES concerns that are raised in its feedback warrant refusal of the development application. It is clear that the SES position is contrary to the BDCP provisions, and also fails to recognise that the clubhouse is a safe refuge, certainly safer than requiring occupants to evacuate, in local catchment or storm surge flooding, onto roads that are more susceptible to flooding than the development itself. I need not consider, therefore, the SES policy concerning ‘shelter-in-place’. The SES reliance on mortality rates from evacuees from a nuclear disaster is a questionable basis for its position that it does not want to evacuate residents of the proposed development. The proposal includes emergency access to River Road, which allows egress from the site in flood levels of up to 2.25m AHD (with the access road elevated to 4.25m AHD on the site, above the PMF). On Burns Point Ferry Road, tidal inundation of this road occurs irrespective of whether the development will proceed, and the primary access to the development from Burns Point Ferry Road is located at that point that is least affected by tidal inundation. Further, with respect to the 2022 event, which the SES relies upon, the FERP demonstrates that the occupants of the development would have had sufficient time to evacuate off-site by vehicle in the flood levels of that event, using the trigger levels in the FERP.
The better position is that which is expressed by the Biodiversity, Conservation and Science Group of the NSW Department of Climate Change, Energy, Environment and Water, which concludes that the club house “would be used as the local flood refuge facility in the event of extreme floods” (Ex 2, Tab 18).
The requirements of the BDCP concerning evacuation to a refuge area are met, and I consider that the emergency response, as set out in the FERP, is acceptable and appropriate for the proposed development.

For the above reasons, I am satisfied of the matters in cl 5.21(2) of the BLEP. I am satisfied that:
The proposed development is compatible with the flood function and behaviour on the land, for the reasons set out above at [232], and
The proposed development will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, for the reasons set out above at [229].
I am also satisfied that the proposed development “will not affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood”. I reach this satisfaction for three reasons. Firstly, the proposed development has safe occupation on-site above the PMF, and will not change flood levels in a manner that affects the safe occupation of other premises. Secondly, the FERP conducts an assessment of the planned evacuation route for riverine flooding, including both the occupants of the development and the existing residents in the area to be evacuated, and concludes that there is sufficient capacity for this evacuation route to cater for all the vehicles, with a total evacuation time of 8hr 53min. Thirdly, the provision of an onsite refuge area through the club house, which will be utilised in local catchment and storm surge flooding, means that, in those events, there will be no effect on the existing evacuation routes for the surrounding area.
As required by cl 5.21(2)(d), based on the FERP and for the reasons expressed above at [238] to [242], I am satisfied that the proposed development incorporates appropriate measures to manage risk to life in the event of a flood. The dwellings have floor levels about the PMF, evacuation is available off-site in the event of riverine flooding and on-site to a refuge area in the event of local catchment and/or storm surge flooding. In addition, in the event of a medical emergency at the time that the site is isolated and occupants are using the refuge area onsite, there is a helipad available for medical rescues or delivery of resources.
Further, as required by cl 5.21(2)(e), I am satisfied that the proposed development “will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses”. Based on the FIA and Ex G, there are no areas that are newly affected by flooding as a result of the proposed development, and the change to velocity is not significant. In addition, as set out above at [148] to [149], and [152] to [154], the post development flows to the conservation wetlands replicate existing flows, with an improvement of water quality, and scour protection is provided to protect the conservation area from sediment and erosion. Further, for the reasons set out below, the proposed development does not unacceptably adversely affect the environment.
In reaching these conclusions, and based on the flooding joint expert report, the FIA, Ex G, the FERP, and the design of the proposed development, I have considered the impact of development on projected changes to flood behaviour as a result of climate change. The BDCP factors climate change in to the calculation of the required finished floor levels, and the FIA and Ex G considers the 1 in 100 AEP with climate change 2050, as required by the BDCP. Therefore, the projected changes to flood behaviour modelled in the FIA and Ex G, incorporate scenarios both with and without climate change.
I have considered the intended design and scale of the buildings, which are elevated to a level above the PMF, and are on fill pads that are consistent with the fill requirements for the site, pursuant to the BDCP. I have also above considered, at [110] to [116], the built form and amenity contentions relating to the buildings.
Consistent with cl 5.21(3)(c) of the BLEP, and based on the FERP and the joint expert report of the flood engineers, I have considered that the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood. This consideration is outlined above at [238] to [242].
Although cl 5.21(3)(d) of the BLEP requires consideration of “the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion”, I do not consider that the buildings will need to be modified, relocated or removed in circumstances where they are to be built on a fill pad that will become a ‘flood island’ and where the dwellings have finished floor levels above the PMF.
For those reasons, I am satisfied of the matters in cl 5.21(2) of the BLEP and I have considered the matters in cl 5.21(3). Neither of these two contentions concerning flooding and flood evacuation warrant refusal of the development application.

There are approximately 18.275ha of mapped coastal wetlands on the site, and the experts agree that no works are proposed within that area, with all of that area protected within the conservation area.
There is approximately 18.948ha of land mapped as proximity area on the site. Whilst there is no built form or construction works proposed in the proximity area, part of the proximity area will be managed for the mosquito buffer zone and landscaping. The proposed mosquito buffer zone on the eastern side of the proposed development comprises 0.341ha of the proximity area, and the landscaping area on the western side of the proposed development comprises 0.302ha of the proximity area. Pursuant to s 2.8 of the SEPP RH, consent cannot be granted to development on land mapped as proximity area unless the consent authority is satisfied that the proposed development will not significantly impact the adjacent coastal wetland.
In support of its contention that the Court cannot be satisfied that there will be no adverse impact on the coastal wetlands, the Council relies on the evidence of Dr McLean and Mr Howland. However, none of the matters raised by them establish that there will be an adverse impact on coastal wetlands.
Dr McLean advances four main reasons why he concludes that the proposed development will have an adverse impact on coastal wetlands. Each of those reasons is an opinion that is unsupported by relevant facts, or by his area of expertise.
First, Dr McLean opines that the SMR does not demonstrate a neutral or beneficial effect on water quality, and that the proposed development “will result in an increase in nutrient and sediment loading to the discharge point, compared to baseline levels” (Ex 15, p.12). He relies on Table 17 of the SMR in support. However, Dr McLean’s opinion is based on a misunderstanding of Table 17 of the SMR.
In fact, Table 17 of the SMR concerns the pollutant load reductions achieved by the stormwater management system, and gives the figures as percentages. A larger percentage is a greater reduction in pollutants. This means that, any percentage shown in Table 17 is a reduction in pollutant levels, and where the percentage reduction is greater than the requirement, the reduction is greater than that required by the BDCP. Table 17 is extracted below, at Figure 11.
Further, Table 18, which is extracted in the joint report for which Dr McLean was a co-author, demonstrates the reduction in actual concentrations, in mg/L. Table 18 is explained by the other authors of the joint report. It appears that Dr McLean did not review his co-authors’ evidence or engage with that evidence or with Table 18, which is emphasised in [61] of Ex 15. There can be no doubt that there is a decrease in each of the nutrient and sediment loading to the discharge point, and Dr McLean’s opinion to the contrary ignores the fact of these reductions.
Second, in relation to the BWQMMP, which concerns surface water, Dr McLean opines that the statistical analysis contained in the water quality time series plots is invalid. Presumably he refers to Appendix 3 of the BWQMMP. Statistical techniques vary between technical fields, and, in circumstances where Dr McLean has no expertise in water quality analysis, his opinion has no proper basis.
Third, in relation to the K square analysis that informed the groundwater joint report, Dr McLean criticises whether the data assumptions can be met. However, as he concedes, he is not familiar with the statistical program used, StatPlus. Without knowledge of the statistical program used, Dr McLean cannot draw conclusions about how the data is analysed. His review of “the code” (presumably, the computer code) and the conclusions drawn from that review, is not informed by his expertise in the area of ecology. Therefore, again, he advances an opinion that is not informed by his area of expertise, set out in his CV.
Fourth, Dr McLean outlines the negative effect that would occur to the wetland if there is a reduction in groundwater volume or depth. However, as outlined above at [166]-[176], the proposed development does not alter the groundwater of the wetland.
Mr Howland also raises a number of reasons why he considers that there could be an impact on the wetlands. However, in light of the evidence concerning stormwater and groundwater, none of the reasons advanced by Mr Howland are sufficient to establish that there will be an adverse impact.
Firstly, whilst Mr Howland agrees that reduced flow during both very wet periods and very dry periods is unlikely to influence the coastal wetlands, he considers that there could be an impact during dry periods interrupted by minor rainfall. In that situation, he opines that “in this situation it is conceivable that freshwater dependant species which rely on such intermittent events are deprived of freshwater” (Ex 15, p. 49). However, the assessment in the HRA and SMR demonstrates that existing hydrological conditions of the conservation area are maintained, from the storm events of 63% AEP through to 1% AEP. Therefore, even in events that could occur during periods of dry, there will be freshwater entering the wetlands in a similar manner in which it occurs at present. Further, the HRA and the evidence of Dr Matthew is that freshwater flows from the development area are 9 to 10% of the total freshwater input to the wetland, and rainfall and discharge from the development area is approximately 2.21 times what is required by the wetland for evapotranspiration (Ex 9, [79]). Therefore, I accept the evidence of Ms Conacher that small changes to the quantity of discharge from the proposed development, as modelled in the SMR, are unlikely to negatively impact the vegetation.
Secondly, Mr Howland is of the opinion that the central north-south drain is largely blocked at the southern end is unlikely to provide effective conveyance to the Richmond River. However, the SMR does not rely on there being conveyance via the north-south drain and instead the proposed stormwater management system ensures that the water drains from the development area to the wetland in a manner that replicates the existing flow, and after doing so it will “flow in whatever pattern into the wetland that is operating at that time” (Ex 9, [80]).
Therefore, the extent of blockage of surface water at the southern end of the north-south drain, which the Council says is existing, is of little relevance to the assessment of impacts of the proposed development.
Thirdly, Mr Howland’s evidence is that to ensure that the coastal wetlands will not be impacted, there should be proper application of the Guidelines for Water Quality Management (2018). As set out above, there are two aspects of the 2018 Guidelines that he says are relevant. The first is that the 20-80th percentile bands should be used to achieve water quality improvement, and the second is that the baseline data should be from a suitable unimpacted reference site. As set out above at [182], I consider that the use of site-specific water quality criteria is appropriate in circumstances where the issue concerns changes to the site itself as a result of the proposed development, which can be understood using the baseline conditions at the site. Further, given the historical disturbance of the site, the 10-90th percentile band is appropriate for water quality monitoring. In relation to stormwater flows from the development area, as set out above at [153]-[158] and [166]-[176], the stormwater management system ensures that existing hydrological conditions of the conservation area are maintained and that the pollutant reduction targets set out in the BDCP are met. There is, therefore, no basis upon which it could be concluded that there is an adverse impact on the coastal wetlands as a result of stormwater flows or from surface water.
For the above reasons, none of the matters raised by the Council concerning the potential for impact on coastal wetlands and associated vegetation communities warrant refusal of the development application. Instead, based on the evidence before the Court, I accept the opinion of Ms Conacher and Dr Thorogood that any changes to the coastal wetland and plant communities are unlikely to be ecologically significant in circumstances where tidal influence is the principal determinant of the distribution of these species over the site, the proposed development will not change the pattern of tidal inundation or rainfall on the site, and changes to ground and surface water will be relatively minor in the context of the ongoing changes to the site resulting from historical disturbances.
For these reasons, and for the reasons set out above at [153]-[158] and [166]-[176], I am satisfied that the proposed development will not significantly impact on the biophysical, hydrological or ecological integrity of the adjacent coastal wetland, or the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland, such that the requirements of s 2.8(1)(a) and (b) of the SEPP RH are met.

Fish habitat in NSW is protected under the Fisheries Management Act 1994 (NSW) (the FM Act), and the term ‘fish’ is a broad term encompassing all aquatic invertebrates. The experts agree that ‘key fish habitat’ includes all marine and estuarine habitats up to the level of highest astronomical tide, and most permanent and semi-permanent freshwater habitats. The highest astronomical tide is generally considered 1.0m AHD, although it is widely agreed that 1.1m AHD is a more contemporary figure. The joint report relies on the Policy and Guidelines for Fish Habitat Conservation and Management (2013) by the NSW Department of Primary Industries to guide the identification of key fish habitat and assessment of impacts. As a result, there is no dispute between Ms Conacher, Dr Thorogood, Mr Howland and Dr McLean that:
The artificial drainage channels on the site are not key fish habitat.
The Emigrant Creek and Richmond River are Type 3 minimally sensitive key fish habitat, and the mangrove communities of each waterway are Type 2 moderately sensitive key fish habitat.
In addition, Dr Thorogood considers that, beyond the drainage channels, the wetlands adjacent to the development footprint and of Emigrant Creek and the Richmond River are key fish habitat as there are:
Areas of saltmarsh of >5m2 (Type 1 – highly sensitive),
Coastal wetlands under the SEPP RH (Type 1 – highly sensitive),
Mangroves (Type 2 – moderately sensitive),
Areas of saltmarsh of <5m2 (Type 2 – moderately sensitive), and
Freshwater/brackish wetlands (Type 2 - moderately sensitive).
Another area considered to be key fish habitat by Dr Thorogood is the area of highly modified brackish water wetlands between the development footprint and Burns Point Ferry Road (moderately sensitive key fish habitat).
The above-described areas are within the conservation area, or beyond (in the case of Emigrant Creek and Richmond River), and will not be adversely impacted by the proposed development. Given that the stormwater system ensures that the existing hydrology of the conservation area is maintained, that there is pollutant reduction in excess of the requirements of the BDCP, and scour protection around the points of discharge, the proposed development will not have an impact on the water quality of the conservation area, Richmond River or Emigrant Creek.
To the extent that the black rockcod may inhabit rocky habitat within the Richmond River, the Species Impact Statement prepared by Dr Thorogood makes it clear that the release of treated stormwater from the proposed development will not affect the water quality of the receiving environment and consequently will not have an adverse impact on the black rockcod. Mr Howland agrees with those conclusions.
Within the development area, Dr Thorogood’s evidence is that the vegetation mapping (shown in Figures 4A and 4B above) demonstrates that the development encroaches upon areas of:
Weedy and slashed estuarine reedland,
Weedy swamp-oak forest, and
Small areas of freshwater wetlands.
The evidence of Ms Conacher and Dr Thorogood is that, within the mosquito buffer area, there are small areas of saltwater couch in the understory of the swamp oak forest, that will be required to be slashed to assist in the control of mosquitos. Based on the surveys of the site and the Policy and Guidelines for Fish Habitat Conservation (2013), Ms Conacher and Dr Thorogood opine that the saltwater couch on the edge of the mosquito buffer zone is the only vegetation that could be considered highly sensitive key fish habitat within the development footprint. Ms Conacher’s evidence is that the slashing of that vegetation is unlikely to negatively impact it, and may result in an increase in the area covered by lower forbs and stoloniferous grasses which will be beneficial.
The evidence of Ms Conacher and Dr Thorogood supports the findings of the Aquatic Ecological Technical Report of FRC Environmental, dated December 2022 (AETR), that there are no aquatic species of conservation significance that are likely to be impacted by the proposed development, and that the fish habitat values of the wetland within the development footprint were lower than the wetlands that will be conserved within the conservation area. This is also supported by the Assessment of Potential Impacts to Fish Habitat and Priority Oyster Aquaculture Areas dated 5 December 2023 (API), which reaches the following conclusion concerning the impact of the development footprint on fish habitat (Ex1, Vol 8, Tab 2, p.11):

Both the API and the AETR conclude that the development is not likely to significantly affect threatened aquatic species, with the AETR making it clear that “no threatened aquatic species is likely to occur in the wetlands” (Ex 1, Vol 6, Tab 3, p.28).
The Council did not advance any evidence to the contrary. Mr Howland’s evidence is that the mapping does not isolate saltmarsh species and mangroves, the fish survey wasn’t sufficiently robust, the depauperate nature of the fish community “does not negate the need to preserve and protect fish habitats” (Ex 15, p.37), and the conduit for tidal exchange needs to be understood.
None of the matters raised by Mr Howland are adequate to contradict the evidence of Ms Conacher and Dr Thorogood, and the findings in the AETR and the API. Mr Howland does not identify in what way the mapping needs to further isolate saltmarsh species and mangroves, in circumstances where the field survey outcomes are in the AETR and BDAR, and mapping is provided in the BDAR, the API and Attachment 3 to the joint report. Mr Howland does not explain what material value there would be from further surveys, or what relevance an understanding of the current exchange of tidal water is to the impact of the proposed development on key fish habitat. The proposed development will not change the tidal flows. Further, whilst Mr Howland’s opinion is that depauperate fish communities need to be preserved, the focus of development assessment is on the impact of the proposed development, and the degraded nature of the existing environment is relevant to assessing the impact.
I therefore reach the conclusion that, contrary to the contentions raised by the Council concerning fish habitat (contention 9 and 38), there is adequate documentation concerning the impact on fish habitat. There is no basis on which it could be concluded that the proposed development is “likely to affect threatened species, populations or ecological communities” that would trigger the requirement, in s 221ZW of the FM Act, for a species impact statement. Contrary to the Council’s contention, the exact areas of key fish habitat within the site have been identified, and the evidence is that the only areas to be affected by the proposed development are those within the development footprint, which are moderately sensitive key fish habitat that are in poor condition and do not contain any aquatic species of conservation significance. The Council has failed to establish that there is an unacceptable impact or that an offset is required. Instead, by protecting (and enhancing the water quality flowing to) the key fish habitats within the conservation area, the proposed development has avoided and minimised impacts to key fish habitats. Further, the evidence of Ms Conacher that the maintenance of the mosquito buffer by the slashing of saltwater couch in the understory of the swamp oak forest, is unlikely to negatively impact the swamp oak forest or key fish habitat. Therefore, none of the matters raised by the Council concerning impacts on fish habitat warrant refusal of the development application.

The relevant guidance, referred to in both s 6.5(2) of the BC Act and cl 6.7(4) of the BC Regulation, is the “Guidance to assist a decision-maker to determine a serious and irreversible impact” by the Department of Planning, Industry and Environment dated September 2019 (the Guidance document). The Department has developed criteria to interpret the principles in cl 6.7 of the BC Regulation, which are contained in the Guidance document. It has applied that criteria to the threatened species and threatened ecological communities listed in the BC Act, and entities that meet the criteria under one or more of the principles in cl 6.7 are identified as entities at risk of a serious and irreversible impact (SAII) in the Threatened Biodiversity Data Collection (TBDC) housed in BioNet and displayed on the Department website.
The Council also contends that the VMP is insufficient (contention 34), that vegetation offsetting should be carried out in accordance with a Biodiversity Compensatory Habitats and Offsets Policy adopted by the Council on 21 September 2021 (contention 36), and that the proposal is inconsistent with the biobanking agreement (contention 8).
In dealing with these contentions, I will firstly deal with each aspect raised before reaching conclusions in relation to the adequacy of the BDAR and the VMP. In summary, I have found that the BDAR and the VMP are adequate and that none of the criticisms made by the Council are established. The proposed development conserves 82% of the subject site, including all of the areas of the highest biodiversity value, and restricts the development area to the north-western part of the site that is most heavily impacted by past agricultural land use, where threatened ecological communities are restricted or isolated to weedy remnant fragments. Of the 10.17ha of land to be cleared for the development, only 0.72ha aligns with an EEC.
On every point raised in contention, I accept the evidence of Dr Robertson and I find that the evidence of Dr McLean either fails to engage with the BDAR or recognise the history of the development area as being highly disturbed, or is deplete of substance that would disturb the conclusions reached in the BDAR or by Dr Robertson. This has led me to the conclusion that none of the Council’s contentions on these issues can be supported or warrant refusal of the development application. This is, in part, due to the manner in which the Council has put its case, preferring to contend that the Court cannot be satisfied of certain matters or impacts, rather than contending that there are impacts on particular biodiversity values that warrant refusal of the development.

The Council contends that the BDAR should assess the impact of slashing on what can reasonably be assumed to be the habitat and vegetation that existed before the slashing. This is relevant to the vegetation integrity score to assess the impact of the development. The Council contends that the impact of the proposed development should be assessed based on an assumption that the slashing had not occurred.
In its submissions, the Council takes this contention further, asserting that the slashing is unlawful development. The Council submits that it is well established that a person who has carried out unlawful works should gain no advantage from those works. In support of this submission, the Council relies on the decision of Preston CJ of the LEC in Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345; [2018] NSWLEC 207 (Ralph Lauren), and the decision of Acting Commissioner Adam in White v Ballina Shire Council [2021] NSWLEC 1468 (White).
There are three problems with the Council’s position on this issue. The first is that the Council has not actually established that the slashing that occurred was carried out by GTH or that it was unlawful, in that it was development that required consent or some other authorisation. This is in contrast to both Ralph Lauren and White, where the construction of a seawall (in Ralph Lauren) and a road and culvert (in White) was development that required consent, and had been carried out without development consent. The discussion by Dr McLean on this point, in the joint report, is not conclusive, particularly given that each event of slashing would need to be considered against the applicable legislation at the time, to determine if the activity that occurred was one that required consent or some other authorisation. The Council has not sought to prove the unlawfulness of each slashing activity. The warning letters, relied upon by Dr McLean, similarly do not establish unlawfulness, and in fact refer to directions that were made by the Council for certain clearing to occur.
The second problem with the Council’s position is that this is not a circumstance in which the slashing occurred to previously undisturbed land. The site has an extensive history of being used for agricultural purposes. Aerial imagery shows that by 1958, the entire site had been cleared of any pre-existing vegetation for grazing land. By 1971, around 90% of the site was being used for sugar cane production, with agricultural drains installed. By around 1979, cane production was abandoned and the site was used for grazing pastures. That grazing continued on part of the site until as recently as 2021. Early slashing that occurred in around 2002 was to provide drought fodder for farmers in western NSW (see Ex 13, Tab 10). This means that there is no clear baseline that the Council can assert ought to apply to the impact assessment. It also means that Dr McLean’s opinion that comparison sites elsewhere around Ballina ought to be used to understand the impacts of slashing on the site can be readily rejected. Completely undisturbed sites are not appropriate comparison sites, given the extensive clearing that has occurred over the site’s history. Instead, the approach in the BDAR and by Dr Robertson to assess the impact of slashing by using plots located in adjacent areas not subject to slashing, with similar vegetation profiles and the same land use history, is to be preferred.
The third problem with the Council’s position is that, when that comparative exercise by Dr Robertson and by the BDAR is undertaken, the evidence is that the slashing has not destroyed the native vegetation. Instead, the areas subject to slashing have maintained higher quality vegetation that in the long un-slashed areas of the conservation area. Dr Robertson’s technical explanation of why this occurs (see Ex 13, [75]-[76]) is supported not only by his expertise in grassland ecology, but also by the results of the surveys of the BAM plots, undertaken across 6 different time periods, the latest being August 2024, 9 months after the cessation of slashing. When the Vegetation Integrity Scores (VIS) of the long un-slashed areas south of the central fence were compared with those that had been slashed a few months ago, the latter had higher VIS to the former. Further, when reviewing the different surveys of BAM plots following different periods of time after slashing, Dr Robertson concludes, and I accept, that “the grassy and reedland vegetation reaches the highest VIS scores in slashed areas after about 9 months or so and that VIS scores diminish with time (after some years) due to weed invasion and proliferation of dominant grasses in long unslashed conditions” (Ex 14, p.9). Dr McLean agrees that this conclusion is consistent with what has been resurveyed 9 months after the cessation of slashing, and what has been surveyed in the comparison plots (Ex 14, p.7).
Despite these three problems with the Council’s position, and contrary to what is asserted in the contention, the BDAR has, in fact, assessed the impact of the slashing and assigned appropriate VIS to reflect the best condition of the slashed land. The consideration of the implications of slashing is explained at Section 2.4.2.1 of the BDAR, and Section 4.4 sets out how the VIS for the slashed areas was recalculated based on the August 2024 surveys. For each different vegetation zone, the VIS applied was the greatest value of the original or recalculated score. I therefore accept the submission, made on behalf of GTH, that the BDAR takes a conservative approach to ensure that the highest possible VIS is used for the areas subject to slashing, notwithstanding that comparison plots in the conservation area (not subject to slashing) would not have sufficient VIS to generate ecosystem credits. I note that the fact that the highest VIS was chosen overcomes the few errors in slashing dates, identified by Dr McLean (Ex 14, [44]-[45]). Accordingly, the BDAR appropriately assesses the VIS for the slashed areas, and this contention does not warrant refusal of the development application.
None of the matters advanced by Dr McLean dissuades me from this conclusion. Firstly, the vegetation maps relied upon by Dr McLean, prepared by Mr Gaskell and Mr Smith (Ex 13, p 13), are not supported by vegetation plot sampling, and are inconsistent with the results of actual surveys of BAM plots undertaken by Cumberland Ecology for the purpose of the BDAR. Secondly, the use of Google street view by Dr McLean to assess vegetation is not persuasive, and is a poor substitute for the extensive sampling undertaken by Cumberland Ecology. Thirdly, the survey of 7 BAM plots by Dr McLean suffers from all of the shortfalls identified by Dr Robertson, including that three of the plots are clustered around the base of the fill pads and the plots are not representative of the varying topography of the development area, the plots were only taken in the slashed areas, most species were not identified beyond the species level, and most of the plots have substantially less species than those within nearby Cumberland Ecology plots (see Ex 13, p.127). The data is therefore neither reliable nor representative of the development area.

In relation to the area in the north-western corner of the site, which Dr McLean opines is Littoral Rainforest EEC, Preston CJ was not satisfied that PCT 1275 (Rainforest) was the correct classification and instead found that it would have been suitable habitat for PCT 1235 (Swamp Oak) (Planners North at [162]).
Following the decision in Planners North, Dr Robertson and Cumberland Ecology were engaged and detailed surveys were undertaken, the earliest of those occurring in June 2022, including vegetation mapping, plot-based surveys, habitat assessment, threated flora and fauna searches, and targeted threated species surveys. The results of previous vegetation mapping, by the ecologist who gave evidence in Planners North, were discarded due to disparities with the results of the surveys undertaken by Cumberland Ecology. As set out above, surveys were conducted as recently as August 2024 in order to refine the vegetation mapping following the cessation of slashing, the results of which can be seen at Figure 4B above.
As a result of these surveys, five of the PCTs within the site have been assessed as being associated with four threatened ecological communities (TECs) under the BC Act. They are shown in Figure 12.
The justification of the alignment of these PCTs with TECs is contained within the BDAR. With respect to the area of PCT 1275 located in the north-western corner of the site and another area to the north-east, the BDAR identifies three TECs that potentially align with this PCT. Through close consideration of the species present (and not present), the location on the floodplain, soil sampling, and geological mapping, the BDAR concludes that it best aligns with Lowland Rainforest in the NSW North Coast Bioregion (Lowland Rainforest EEC). Consistent with the decision in Planners North, the BDAR acknowledges that the plantings in the patch to the north-west are from the homestead, that “it would likely have originally been PCT 1235” (Ex C, Tab 2, p.63), and that this is not a natural occurrence of either Lowland Rainforest EEC or Littoral Rainforest EEC. Nevertheless, the BDAR reaches the conclusion that it best aligns with Lowland Rainforest EEC. This is supported by the evidence of Dr Robertson, who provides detail around the soil surveys and how the geology and location (greater than 2km from the coast) does not align with Littoral Rainforest EEC.
Despite the comprehensive approach taken in the BDAR and the evidence of Dr Robertson, Dr McLean’s evidence is that the dominance of Tuckeroo (Cupaniopsis anacardioides) means that the PCT 1275 better aligns with Littoral Rainforest EEC, and that the soil analysis undertaken by Cumberland Ecology is insufficient as it is not of adequate depth. Dr McLean states that he “cannot form an opinion on the soil properties of the land… and if this material is derived from weathered rock or alluvium deposition” (Ex 13, [172]).
Contrary to Dr McLean’s evidence, the BDAR addresses the presence of Tuckeroo (Cupaniopsis anacardioides) as not being a reliable diagnostic species for any of the TECs. Dr Robertson’s evidence is that the pit depths were limited by the intrusion of groundwater, with the geology suggesting soils derived from alluvium, with no presence of sand dunes or bedrock geology. This is supported by the 1:100,000 Coastal Quaternary Geology map.
With respect to areas of PCT 782 and areas of PCT 1808 in the condition state dominated by Phragmites, the BDAR reaches the conclusion that whilst the characteristics of these areas potentially align with the Freshwater Wetland EEC, neither area meets the requirements of the final determination of the Scientific Committee (NSW Office of Environment and Heritage, 2010). The final determination states that “artificial wetlands created on previously dry land specifically for the purposes such as sewage treatment, stormwater management and farm production, are not regarded as part of this community, although they may provide habitat for threatened species”. The majority of the areas of PCT 782 are associated with the artificial drainage lines created to drain land to support past agricultural uses, where drainage has been impeded by weeds or the placement of fill. Similarly, the majority of the areas of PCT 1808 dominated by phragmites are associated with these drains. The BDAR points out that PCT 1808 does not align with the Freshwater Wetland EEC in the Bionet vegetation classification. However, the BDAR takes a conservative approach and treats those areas as Freshwater Wetland EEC, allocating credits for the areas lost, notwithstanding that they do not meet the requirements of the final determination.
Interestingly, in surveys taken in August 2024, following the cessation of slashing, some areas previously mapped as PCT 782 were completely invaded by Urochla mutica such that they no longer align with PCT 782.
With respect to the areas of PCT 1808 within the conservation area and considered in the Estuarine condition state, the BDAR concludes that this aligns with the SOFF EEC. This conclusion is based on outcomes of groundwater monitoring, the ingress of tidal waters, the occurrence of saltmarsh species including C**asuraina glauca, and the transition to the mangroves area.
What this means is that the areas of PCT 1808 dominated by phragmites, which are largely located within the development area but extend to the east and south to the conservation area, are excluded from meeting the requirements of Freshwater Wetlands EEC as they are artificial wetlands created as a result of impeded flows following the use of the site for the purpose of farm production, and the areas of PCT 1808 in the Estuarine condition state located within the conservation area align with the SOFF EEC due to the groundwater salinity. Both conclusions are supported by the final determinations for each of the respective EECs. The two areas are separated by the central disused agricultural drain.
Dr McLean disagrees with the division of PCT 1808 across two separate EECs, and gives evidence that all of those areas ought to be classified as Freshwater Wetlands EEC. He relies on the final determination for the Freshwater Wetlands EEC, which acknowledges that there can be saline influence, and also relies on the Keith vegetation classification system. Whilst Dr McLean states that the problem with the classification in the BDAR is that it “would result in Estuarine Reedland that aligns to SOFF EEC being offset rather than Freshwater Wetland” (Ex 13, [122]), this is an error, given that none of the Estuarine Reedland that aligns to SOFF EEC is being removed. Further, the PCT 1808 dominated by phragmites that will be removed, is assigned by the BDAR as Freshwater Wetlands EEC for the purpose of offset credits, notwithstanding that it does not meet the requirements of the relevant final determination.
Further, whilst Dr McLean disputes that the PCT 1808 that occurs within the development area is “artificial wetlands on previously dry land” as described as being excluded from Freshwater Wetlands EEC in the final determination, he gives no evidence that this part of the land was wet, swampy or periodically inundated prior to the agricultural use of the land. This stands in contrast to the evidence in Gales Holdings v Tweed Shire Council [2008] NSWLEC 209, a decision upon which Dr McLean relies. Instead, based on the evidence in the aquatic ecology joint report, prior to the clearing for the agricultural use the site was dominated by PCT 3989, commensurate with a Swamp Sclerophyll forest, and the ponding of water upstream (causing changes in the distribution of coastal vegetation) is a result of impeded drainage by blockages in the agricultural drains (Ex 15, pp 7-9).
The remaining areas of PCT 1808, which include mown areas, fill pads, areas dominated by setaria and urochloa, are considered by the BDAR as not aligning with any TECs or EECs.

In exercising the functions of the consent authority, the Court is required to take into consideration “the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application”, pursuant to s 7.13(2) of the BC Act. However, as set out in s 7.13(6)(a), this section does not limit what the Court can take into consideration in relation to “the impact of proposed development on biodiversity values”. Biodiversity values include vegetation integrity, habitat suitability, threatened species abundance, habitat connectivity, threatened species movement, flight path integrity and water sustainability (s 1.5 of the BC Act; cl 1.4 of the BC Regulations). Whilst the Council alleges impacts on EECs, it does not particularise which of the biodiversity values is impacted, although the evidence of Dr McLean on the EECs tends towards impacts on threatened species abundance (the occurrence and abundance of EECs) and water sustainability.
In the development area, all of the vegetation will be removed for the purpose of filling the land to meet the requirements of the BDCP concerning flooding. Whilst the filling of the land is not proposed in the mosquito buffer, some of the vegetation in the mosquito buffer will be removed to meet the requirements for that buffer. Whilst some species in the mosquito buffer will be retained and the area will be managed with weed removal and new tree plantings, for the purpose of assessing the impact of the proposed development, it is assumed to be cleared. The extent of clearing for each PCT is summarised in Figure 13.
As for the conservation area, a large part of the conservation area is already required to be managed through the current Biobanking Agreement 444. A significant portion of the remaining part of the conservation area (4.24ha) is proposed to be added to this, under a new stewardship agreement. The proposed stewardship site, as well as other areas of the site intended to be managed under the VMP, is shown in Figure 14.
The VMP sets out the requirements for improving each of those areas, including by weed removal and restoration plantings. In doing so, the proposed development includes the restoration of the EECs in the conservation area (other than the area already covered by the Biobanking agreement), in addition to managing areas of plantings along Emigrant Creek, in bioretention basins and in the floodway. The evidence of Dr Robertson is that the proposed development results in benefits from the provision of a sizeable, long term area for conservation.
The BDAR sets out both the direct and indirect impacts of the proposed development on the EECs, in Chapter 7, with indirect impacts, including weed encroachment, contained in Table 31. The BDAR notes that, due to the highly modified and weedy condition of the existing vegetation, the indirect impacts of the proposed development are not considered to be significant. This is supported by the evidence of Dr Robertson, who summarises the impacts on each EEC and reaches the conclusion that there is no SAII on any of the EECs present. The BDAR also sets out the avoidance measures, as well as the ways in which impacts are minimised, which is supported by the evidence of Dr Robertson.
Mr McLean’s evidence, on the other hand, is that, it is “unclear at what scale an SAII should be assessed at” and he places little weight on the guidance document referred to in cl 6.5(2) of the BC Regulations (Ex 13, p.50). He opines that the impact on the Freshwater Wetland EEC will result in the functional extinction of this EEC in the Ballina area, that the removal of 0.66ha of SOFF EEC is not justified, and that there are indirect impacts on the Coastal Saltmarsh EEC and retained SOFF EEC as a result of the changed hydrology of the conservation area resulting from the proposed development. This includes changes to groundwater flow and surface water flow to those EECs, as well as changes to pollutant loads. He also considers that the VMP is not sufficient to provide certainty that the revegetation works in the conservation area will become SOFF EEC.
In response, GTH relies on the SMR and the HRA to demonstrate that the hydrological regime of the conservation area will be maintained, and pollutant loads reduced. In addition, Dr Robertson’s evidence is that stormwater discharge in extreme rainfall events is unlikely to impact SOFF EEC as the Phragmites would generally filter and absorb pollutants. Dr Robertson also points out that Dr McLean’s evidence of uncertainty about the restoration of SOFF EEC ignores the fact that SOFF EEC has been expanding on the site within the existing biobanking area. Dr Robertson’s evidence is that a SAII will not occur to any of the EECs, and that each EEC is assessed for SAII (including Freshwater Wetland EEC) separately and adequately in the BDAR.
GTH submits that the evidence demonstrates that impacts on EECs have been avoided and minimised, and that those areas of EECs that will be affected by the development are generally limited to small, degraded and weedy fragments. On the other hand, the Council maintains its position that there will be adverse impacts on EECs.

The PCT 1808 that is dominated by Phragmites, and the PCT 782, are concentrated around wet areas created by the agricultural drains or by the pooling of surface water around the base of the test fill pads. This is readily seen by the location of those areas relative to the historical agricultural drainage lines (see Ex C, Tab 2, Figure 14), and around the test fill pads. This means that they are artificial wetlands, created as a result of farm production and the test fill pads. There is no evidence that those areas were previously wetlands, and instead the evidence of the aquatic ecologists is that the land in the development area was previously predominantly paperbark fern swamp forest with only a small area of estuarine reedland (and other areas of mangrove forest along the site’s foreshores). Accordingly, both of these PCTs are specifically excluded from Freshwater Wetland EEC by the description in the final determination. In any event, these areas will be offset under the BAM process, notwithstanding that they do not align with the Freshwater Wetland EEC.
In relation to the areas of PCT 1808 Estuarine Reedland that the BDAR aligns with the SOFF EEC, I accept that this also is not Freshwater Wetland EEC for the reasons set out by Dr Robertson and in the BDAR, largely on the basis of the saline groundwater and the presence of Casuarina glauca. This PCT aligns with the description in the final determination concerning SOFF EEC. In any event, these areas are within the conservation area and are being retained.
There is, therefore, no impact on the Freshwater Wetland EEC by the proposed development, as it is not present on the site.
In relation to the areas of PCT 1275 Littoral Rainforest, I find that this is Lowland Rainforest EEC. This is based on the evidence of Dr Robertson and the contents of the BDAR, due to the geology of the area, soil sampling and distance from the ocean. There are two areas of Lowland Rainforest EEC, one that falls within the development area and will be cleared, and the other within the area that will be managed by the VMP for the proposed stewardship site. The area of Lowland Rainforest EEC to be removed is 0.10 ha, and is located to the north-west where the plant assemblage is attributable to plantings around the homestead, and is therefore not a natural occurrence. The area of Lowland Rainforest EEC to be retained is 0.16 ha. Given that more than half of the Lowland Rainforest EEC is being retained, and the only area to be removed is not a natural occurrence of the EEC, there is only a negligible impact on Lowland Rainforest EEC.
With respect to the areas of SOFF EEC, 0.62ha is within the development area and will be cleared, leaving 22.94ha of SOFF EEC in the conservation area. The areas to be cleared comprise of 0.46ha of poor condition PCT 1235, and 0.16ha of moderate condition PCT 1235. That is, most of the moderate condition PCT 1235 is being retained, as is all of the PCT 1808 Estuarine Reedland. Given the small extent of clearing, the fact that most of it is in a poor condition, with isolated trees surrounded by forms of PCT 1808 dominated by introduced species, and some of the retained SOFF EEC will be managed under the VMP, I accept the evidence of Dr Robertson that the proposed development will likely result in benefits to the SOFF EEC.
Further, I do not accept the Council’s position and Dr McLean’s evidence that there will be an indirect impact on the retained SOFF EEC and the Coastal Saltmarsh EEC. The basis for this position, and for Dr McLean’s evidence, is the changes to the hydrology of the conservation area, including changes to surface water and groundwater, and increased pollutants. However, as set out above at [153]-[158] and [166]-[176], I have found that the stormwater management system ensures that existing flows to the conservation area are maintained, the MUSIC modelling for the stormwater treatment shows that the pollutant reduction targets set out in the BDCP are met, and there is no change to the groundwater of the conservation area. Accordingly, there are no changes to surface water or groundwater that would cause an impact on the retained SOFF EEC or Coastal Saltmarsh EEC, and pollutant levels are being reduced through the stormwater system. As no other basis for an indirect impact on retained SOFF EEC or Coastal Saltmarsh EEC has been advanced by the Council or Dr McLean, I am satisfied that the proposed development will not have an impact on these communities. To the extent that there could be edge effects at the interface of the development area and the conservation area, an effective buffer is provided through the managed mosquito buffer of 25m.
I also find that, contrary to the Council’s contentions, the impacts on EECs are adequately addressed in the BDAR. The extent of vegetation to be cleared is calculated, the VIS of each area to be cleared is calculated, and Chapter 7 of the BDAR is sufficiently comprehensive to understand both the direct and indirect impacts on EECs.
I therefore conclude that there is no unacceptable impact on any of the EECs present on site or identified in the Council’s contentions. 9.4ha of the vegetation to be cleared, out of a total 10.17ha, does not align with an EEC. The full extent of Coastal Saltmarsh EEC is retained, there is no adverse impact on Freshwater Wetland EEC as it is not present on the site, there is no adverse impact on SOFF EEC as much of what is to be removed is in poor condition and the retained SOFF EEC will be managed through the VMP, and there is only a marginal impact on the Lowland Rainforest EEC as the area to be cleared is not a natural occurrence and is less than half of that present on site.

The Council contends that the BDAR does not adequately assess indirect impacts on threatened species and their habitats, and that the proposal causes unacceptable impacts on their habitat. The Council names five species across two contentions: Southern Myotis (also known as the Large-footed Myotis), Black-necked Stork, Curlew Sandpiper, Collared Kingfisher and Mangrove Honeyeater. In Planners North, the Court found that the site is habitat for these five species.
The Council contends that there are impacts on these species and their habitats from stormwater discharge including erosion, changed hydrological regimes, flight initiation distance (FID), artificial lighting, and construction impacts. The Council also contends that there are inadequate surveys for Common Planigale.
The Council’s position is supported by the evidence of Dr McLean, who opines that the reedland and grassland on the development area (including PCT 1808) is suitable habitat for the Common Planigale, and that the types of surveys undertaken have been inappropriate for detecting these species. With respect to the Southern Myotis, Dr McLean’s evidence is that the proposed development results in the loss of 9.88ha of foraging habitat, that the BDAR has not considered the drying out of the conservation area caused by stormwater changes, and that studies have shown that artificial lighting has a detrimental effect on their behaviour. For the Black-necked Stork, Dr McLean opines that there is a loss of foraging and breeding habitat, as this species likes to forage in grasslands, and the development means there is more area within 200m of development in which the stork will not breed. Dr McLean also opines that the range of the FID for Curlew Sandpiper means that there is insufficient screening between the development and conservation area, as the Curlew Sandpiper forages in areas adjacent to saltmarsh. Dr McLean opines that in relation to the Collared Kingfisher and the Mangrove Honeyeater, there are impacts to their habitat from changes to hydrology, and also greater buffers are required to accommodate their FID.
Dr Robertson disagrees with much of Dr McLean’s evidence, and relies on detailed information in the TBDC, and in studies on each species, including those summarised by Birdlife Australia, to reach conclusions on the precise habitat used by each of the species. He then opines that these habitats will persist within the conservation area, and will be permanently managed for conservation. He also relies on the report of Dr Tim Shotbolt, and gives evidence that the lighting has been designed, located, oriented and aimed precisely, and modelled to comply with AS/NZS4282:2023, which is the Australian Standard for the Control of the obtrusive effects of outdoor lighting. Comparing this to the study by Dr Haddock in which the Southern Myotis was affected by artificial lighting, Dr Robertson’s evidence is that the lighting is different in its distribution and context, and he relies on the study by Gorecki in 2020 that found that the Southern Myotis did not change their roost selection based on different types of artificial lighting. In relation the FID, Dr Robertson considers that the largest FID for affected species is 30m, which is accommodated for in the distance to the area on the Migratory Shorebirds map, and with a mosquito buffer of 25m and up to 40m to Emigrant Creek.

Again, whilst the Council particularises certain impacts, it does not identify which of the biodiversity values under the BC Act or the BC Regulations is impacted. The contentions and the evidence of Dr McLean tend towards impacts on threatened species abundance, habitat suitability, and threatened species movement. Having considered the evidence, I reach the following conclusions on the likely impact of the proposed development on these biodiversity values.
From the outset, it is clear from my earlier reasons that there will be no impacts arising from erosion or increased sediment, changed surface water flows or groundwater in any of the vegetation in the conservation area. As set out above at [148] to [149], and [152] to [154], the post development flows replicate existing flows, with an improvement on water quality, and scour protection is provided to protect the conservation area from erosion. Similarly, I found at [166] to [176] that there will be no impacts to groundwater in the conservation area arising from the development in the development area. Therefore, there will be no impacts on existing habitat as a result of erosion or changed hydrological regimes, and there will be no ‘drying out’ of the wetlands.
In relation to the Common Planigale, which is a small mammal, I find that it is unlikely that it occurs on the site. I accept Dr Robertson’s evidence that, based on the species polygon derived from the TBDC, which requires it to be 500m either side of the PCT ecotonal boundary between wet and dry PCT, the species is associated with areas of PCT 1275 and 1235 adjoining the boundary of the two PCTs, extending to the boundary of PCT 1808. The species was not detected in earlier surveys by Mr Parker, and it was not detected by Cumberland Ecology with the IR cameras placed in these areas. An examination of the fauna records of South Ballina by Dr Robertson demonstrates no presence of the species on the northern side of the Richmond River. I also accept his evidence that it is unlikely to be present due to the complete clearing of the site for agricultural purposes, and the isolation of the site from other native vegetation. Contrary to the evidence of Dr McLean, the species is not associated with PCT 1808, and I consider Dr McLean’s evidence that it exists on the site as being speculative. Whilst he disputes the TBDC as being the sole source of truth to delineate species polygons, he provides no evidence of local data that supports the PCT 1808 in the development area as habitat for the species. The fact that he has observed it on other sites with similar vegetation in other contexts, or that it occurs on the other side of the Richmond River, is not relevant.
Nevertheless, consistent with the BAM, the Common Planigale is assumed to exist for the purpose of the BDAR. Based on the species polygon, which is required by the BAM to take into account the information in the TBDC, around 0.82ha of potential habitat will be removed, 0.56ha of which is either in poor condition or dominated by weeds. The removal of such a small amount of habitat for a species that is unlikely to occur on the site does not create an unacceptable impact. Further, its impact is offset by the retirement of 13 species credits.
In relation to the Southern Myotis, Dr McLean’s evidence of impact relates to loss of habitat, changes to the hydrology of the wetlands (which I have dealt with above), and the introduction of artificial lighting in the development area. Whilst the entire development area is considered to be foraging habitat for the species based on the species polygon, no roosts were found on the development area, and the habitat is not suitable for foraging due to the lack of pools. This is supported by call records from ANABAT units, with the greatest number of calls from a unit on the banks of Emigrant Creek, with the other two units only recording one call from each. The preferred habitat is therefore along the banks of Emigrant Creek and Richmond River, and within inundated mangroves, which are largely being retained.
In relation to the introduction of artificial lighting, I accept Dr Robertson’s evidence that the lighting conditions in the study relied upon by Dr McLean, are completely different to what is proposed on the site. The study by Dr Haddock used a semi-rural landscape with low density housing, and directed the lighting horizontally along the creek to where there was a roost of 50 to 100 bats, using a rich blue light into an otherwise dark environment directly on roost areas. On the other hand, the proposed development has controlled lighting with no light spill above the horizontal, in an environment where there is already lighting from dwellings, street lights, the ferry service and traffic in the area. As explained in the BDAR and based on an assessment by Dr Shotbolt, the proposed development lighting has been analysed in a 3D model, which indicates full compliance with the AS AS/NZS 4282:2023 Control of the obtrusive effects of outdoor lighting, in category A0. This category requires proof of 0.0 lux at the interface with the Biobanking Area, and upward waste light ratio of 0.00. Accordingly, there will be negligible artificial lighting of the conservation area by the proposed development. As stated above, there were no roosts found on the site, and the development area is not suitable foraging habitat due to the lack of pools. This was not disputed by Dr McLean. This means that the lighting within the development area will have no impact on foraging behaviours which will continue to occur outside the development area, which will not be affected by the artificial lighting. The research by Dr Haddock has no application as the proposed development has no artificial lighting projected directly on areas used for roosting.
Further, as outlined in Dr Robertson’s evidence, the proposal does not intend to remove the riparian vegetation surrounding Emigrant Creek, and the more suitable habitat is being retained in the conservation area. As this is a species that is agreed by Dr Roberston and Dr McLean as having behavioural plasticity to exploit food resources in an urban environment and roost in culverts and bridges, I consider that the likely impact on the Southern Myotis as a result of the clearing of vegetation the development area, or as a result of the lighting in the development area, is negligible.
In relation to the Black-necked Stork, Dr McLean observed the species on the site on two occasions in 2021, and an observation of the species was made by a local birds group in 2020. However, none were observed in any of the surveys conducted by Cumberland Ecology, and no other records by local bird groups have been made concerning the sighting of this species on the site, notwithstanding that they are known to be a local occurrence in the Ballina area. No nesting sites were located in surveys of the development area, and I accept the evidence of Dr Robertson that there is no suitable habitat for nesting or foraging in the development area, which was not disputed by McLean. The reasons for this are described in the BDAR as follows (Ex C, Tab 2, p.177):

Whilst the Council contends that there are certain impacts on EECs or threatened species as a result of the proposed development, which I have dealt with above, it did not actually contend that those impacts were unacceptable in some way. Instead, the Council contends that the “proposal has not adequately demonstrated that impacts have been adequately avoided, minimised or offset”. That is, the Council relies on alleged deficiencies in the BDAR rather than on focussing the assessment of actual impacts on particular biodiversity values, and submits that the Court could not be satisfied that there is adequate avoidance. In its further written submissions dated 3 April 2025, the Council emphasises the obligation to first avoid an impact, and then minimise an impact, rather than to conflate the two to a single consideration.
The Council submits that the insertion of s 6.3A of the BC Act, concerning the avoid, minimise and offset hierarchy, provides statutory clarification that the measures to “avoid or minimise” referred to in Stage 2, Part 7 of the BAM and in s 6.12(c) of the BC Act must first avoid the impact, prior to minimising the impact. The Council submits that such an approach is consistent with the Court’s findings in Tomasic v Port Stephens Council [2021] NSWLEC 56. The Council then submits that the BDAR does not take that stepped approach, and instead, at pp.113-4, conflates the two considerations. The Council also submits that the BDAR cannot rely on the reduced footprint from what was refused in Planners North as an avoidance measure, or avoidance of the floodway or the biobanking area. It says that these are insufficient avoidance measures.
I do not agree that the insertion of s 6.3A has changed how the words “avoid or minimise” in the BAM and in s 6.12(c) of the BC Act are interpreted. As submitted by GTH, the phrase has a component of avoid on the one hand, and minimise on the other. That is, if an impact is avoided, it need not be minimised, and an impact that can’t be avoided would need to be minimised. In Tomasic v Port Stephens Council, Preston CJ of LEC considered that the two are in sequence, with an obligation to first avoid, before minimising.
There is no minimum threshold for addressing ‘avoidance’ in the BDAR before moving to measures to ‘minimise’ the impact. It will always be a question of fact and degree, depending on the facts and circumstances of the particular development and the measures proposed. On considering the BDAR, I consider that it adequately establishes that impacts on the EECs and threatened species are first avoided, and then minimised.
Firstly, it does so, at Section 6.1.2, by explaining the rationale for locating the proposal in the north-western part of the site. Detailed vegetation mapping was undertaken, together with targeted surveys for threatened species, and the development footprint was located based on the outcomes of that mapping. That is, the first measure proposed to be taken to avoid the impact is the location of the development footprint in the area that is most heavily impacted by past agricultural land use, where TECs are restricted to isolated and/or weedy remnants, and away from the EECs of highest vegetation integrity. To be precise, in the development area, based on Figure 13 (Ex C, Tab 2, Table 26), 9.4ha of the 10.17ha to be cleared in the development area does not align with an EEC.
The reduced footprint from what was considered in Planners North is a consequence of this avoidance measure, and the fact that the footprint does not take up the entire R2 and R3 area is an avoidance measure. That is, rather than using the entire area in which seniors housing is permissible (as was done, in Planners North concerning a manufactured home estate), the footprint is reduced to avoid impacts on the EECs of highest vegetation integrity.
The Council is under the impression that Section 6.1.2 of the BDAR starts first with minimising the impact. However, the use of the word ‘minimise’ in the introduction to Section 6.1.2 relates the overall proposed development, and not to ‘measures’ to avoid impacts.
Secondly, the BDAR then sets out other key avoidance measures in 7 dot points. The Council agrees that the first 6 of these are avoidance measures. There can be no dispute, therefore, that the BDAR deals with avoidance measures. Whilst the Council considers the 7th dot point to be a minimisation measure, I do not necessarily agree. The establishment of a mosquito buffer is a measure that avoids indirect impacts to the vegetation in the conservation area and the species that may forage in that area.
Thirdly, after first setting out the above measures to avoid impacts, it then sets out minimisation measures concerning the clearing of certain EECs and revegetation works that are proposed. The measures to minimise the impacts to the EECs generally are the removal of only poor condition PCTs, and appropriate revegetation of some areas through the VMP. Further measures for the mitigation of impacts, which will serve to minimise impacts, are then contained within Part 7.10 of the BDAR.
I therefore conclude that the BDAR adequately sets out the measures that are proposed to be taken to avoid or minimise the impact of the proposed development, in compliance with s 6.12(c) of the BC Act, and that it does so by first setting out measures to avoid impacts, before moving to measures to minimise impacts. It quantifies the avoidance in Table 24, and it summarises both avoidance and minimisation measures in Table 25 to address requirements of the BAM.
Further, contrary to the Council’s position, it is not the case that GTH continues to solely rely upon the biobanking agreement area as the avoidance measure. It is agreed by GTH that the avoidance of this area is not sufficient of itself, as seniors living is not permissible in that area. However, as submitted by GTH, additional areas are avoided beyond that area, including the 4.24ha containing the SOFF EEC and proposed to be managed as a new stewardship site, and an additional restoration area in the VMP of 0.47ha. I accept that these latter two areas are genuine avoidance measures, in addition to the location of the development footprint in an area where 9.4ha of the PCTs do not align with an EEC. In this way, the proposed development includes measures to avoid impacts on EECs and species habitat. It then minimises the remaining impacts by proposing a VMP for riparian planting along Emigrant Creek (0.13ha), the mosquito buffer (1.38ha), retained mangroves (0.05ha), bioretention basins and stormwater drains (0.56ha) and the floodway (1.37ha).

Instead of contending that the proposed development is likely to have a SAII based on evidence of particular extinction risks and development impacts, the Council relies upon supposed deficiencies in the BDAR concerning its assessment of SAIIs. Accordingly, the Council submits that the Court could not be satisfied that there is not a SAII on biodiversity values.
However, no such deficiencies in the BDAR arise. For each relevant EEC or threatened species, the BDAR either assesses it against the Guidance document or outlines why an assessment is not required.
The Curlew Sandpiper is a SAII candidate species as it is in a rapid rate of decline (principle 1), and the BDAR explains why it is not required to be assessed for a SAII. It is agreed by the experts that the development area does not contain any Curlew Sandpiper habitat. This fact is set out in the BDAR, including that the development area does not contain any areas mapped on the Important Area Map for Migratory Species. Consistent with the provisions of the BAM, and under the rules of the TBDC, a species polygon cannot be mapped and therefore no further assessment is required.
The Coastal Saltmarsh EEC that is present on the site is wholly contained within the conservation area and will not be impacted by the proposed development. The BDAR explains that because this community will not be directly impacted by the proposed development, no formal SAII assessment is provided. The BDAR relies on the HRA to confirm that the proposed development will not change the surface water balance in the area where the Coastal Saltmarsh EEC is located, and notes that the proposed development will not alter the periodic and tidal inundation that influences this community. It states that any changes to the water balance would be negligible, and would not cause an impact on the EEC to such an extent that it would put it at risk of extinction in NSW. Accordingly, the BDAR provides sufficient information to conclude that there is no SAII on Coastal Saltmarsh EEC.
The BDAR tables assessments of whether there is a SAII on the Southern Myotis, the Black-necked Stork, the Collared Kingfisher, the Mangrove Honeyeater, Lowland Rainforest EEC and SOFF EEC. None of these are identified as SAII candidate species or communities in the TBDC. Despite there being no Freshwater Wetlands EEC, the BDAR also assesses whether there is a SAII on the potential Freshwater Wetlands. This is also not identified as a SAII candidate community in the TBDC. The BDAR considers all impacts, both direct and indirect, including FID for each bird species and artificial lighting for the Southern Myotis.
In relation to the Southern Myotis, it concludes that the species does not meet the principle of small population size, or any other SAII principle, and therefore is not considered to be at risk of a SAII.
For the Black-necked Stork, although the population size is low, with an estimated population of 75 breeding pairs, the BDAR reaches the conclusion that the species does not meet the principle for a “very small population size” within the meaning of cl 6.7(2)(b) of the BC Regulations. This is based on the NSW Government Guidance document, where fewer than 50 mature individuals are required to meet the definition. This is an appropriate approach, given that s 6.5(2) of the BC Act makes it clear that the guidance is to provide “criteria to assist in the application of those principles and lists of potential serious and irreversible impacts” and the application of the guidance is required by Section 9.1(2) of the BAM. Further, there is no evidence of there being a limited geographic range for the species, given that it has an individual home range of 8900ha and there is potential foraging habitat of 41,410ha in NSW. Accordingly, the Black-necked Stork does not meet any of the SAII principles in cl 6.7 of the BC Regulations, and therefore is not considered to be at risk of a SAII.
With respect to the Collared Kingfisher, the BDAR acknowledges that the population in NSW is limited to a very small size, with only 10 records in the last 11 years, although the actual population may be larger. However, the BDAR points out that this is only the southern portion of a larger national population, with 5031 records of the species nationally and a broad geographical distribution around the northern coasts, from Shark Bay in Western Australia to the estuary of the Tweed River in north-eastern NSW. The BDAR assesses that there is no breeding habitat that will be removed by the proposed development. It assesses the total area of other habitat to be removed as 0.23ha, compared with a total habitat area of 2640ha in NSW, representing 0.008% of suitable habitat. 9.5ha of suitable roosting habitat will remain in the conservation area. Accordingly, there is sufficient information in the BDAR to conclude that, due to the large national population of the Collared Kingfisher, the lack of breeding habitat in the development area, the small extent of habitat removal and the retention of suitable habitat in the conservation area, the proposed development will not reduce the population size of the Collared Kingfisher consistent with principle 2, or otherwise have a SAII on this species based on any other principle.
For the Mangrove Honeyeater, the BDAR similarly acknowledges that the population in NSW is limited to a very small size, with only 16 records from the last 10 years. It also has a larger national population, with 20,644 records across a large distribution extending along the east coast from Cape York and south as far as Yamba. Its range is thought to have expanded further south over the last 50 years. The BDAR sets out the reasons why the development area is not suitable for breeding, and calculates the area of other habitat to be cleared as being 1.17ha for foraging, which occurs in PCTs near mangroves that are dominated by Casuarina and nectar producing species. The BDAR calculates that this is 0.007% of the total area of habitat within NSW. The areas of mangrove to be retained are around 9.5ha, although not all would be suitable for breeding. As such, there is adequate information in the BDAR to conclude that, due to its large national population, the lack of breeding habitat on the site, the small portion of habitat removal when compared to the extent of NSW habitat, and the retention of suitable habitat in the conservation area, the proposed development will not reduce the population size of the Mangrove Honeyeater consistent with principle 2 or otherwise meet the other principles that would establish a SAII on this species.
In relation to the Lowland Rainforest EEC, the BDAR acknowledges that it is an EEC with a very limited geographic distribution, and has an extinction risk (principle 3). However, the area to be removed is 0.10ha, which is only 0.01% of the current geographic extent of the EEC. It is patch that is disconnected from other Lowland Rainforest EEC patches (including the patch 0.16ha within the conservation area), of low condition state and is not considered to be naturally occurring. The cover of exotic weed species is 48.4%. Therefore, there is sufficient information in the BDAR to conclude that a SAII is not likely to occur to the Lowland Rainforest EEC as a result of the clearing of this small area in the proposed development.
With respect to SOFF EEC, the BDAR sets out the facts relevant to the principles in the Guidance document as to whether the EEC has an extinction risk. A close examination of the tabled assessment against the Guidance document reveals that none of those facts satisfy the criteria set out at pp.10-13 of that Guidance, which means that this EEC does not meet one of one of four principles in cl 6.7(2). That is, it does not meet the threshold values for a rapid rate of decline (90% reduction since 1750 or 80% reduction over a 50-year period), for a small population size (90% degradation or impact from disruption of biotic processes since 1750 or 80% over a 50 year period), or for a limited geographical distribution (less than 1000km2). Therefore, SOFF EEC is not considered to be at risk of a SAII.
Nevertheless, even if SOFF EEC is at risk of a SAII, the area to be removed is 0.62ha, most of which is in a single patch of moderate and poor condition SOFF EEC, whereas 22.94ha is to be retained in the conservation area. Further, 0.6ha of the development area is proposed to be revegetated with SOFF EEC species through the VMP, which compensates the loss of 0.62ha. In addition, the BDAR establishes that there has been an expansion of SOFF EEC on the site following the removal of agriculture, in reverse to the declining trend for this EEC. Accordingly, the BDAR contains sufficient information to conclude that the proposed development is not likely to have a SAII on SOFF EEC.
Finally, in relation to Freshwater Wetlands EEC, the BDAR acknowledges that it meets the criteria for a rapid rate of decline (principal 1) and the facts contained in the assessment also demonstrate that it has a restricted geographic distribution (principal 3). The area to be removed is 2.4ha of potential Freshwater Wetlands EEC, with 2.29ha to be retained in the conservation area. However, for the reasons expressed earlier, these areas do not meet the description of Freshwater Wetlands EEC, as they are communities that have established on artificial drainage lines that have been blocked over time. The area to be cleared is described as “narrow linear strips surrounded by degraded vegetation maintained by slashing” (Ex C, Tab 2, p.218) and 0.6ha of that area will be retained within the mosquito buffer, even though it is assessed as being removed. Species typical to this EEC will also be used in landscaping within retention basins, which is an area of 0.56ha to be managed under the VMP, and will offset the loss of 2.4ha. The loss of 2.4ha is approximately 0.008% of the current geographic extent of this community in NSW, and the net loss, of 1.24ha of this community, is less than that again. There is therefore sufficient information in the BDAR to conclude that the proposed development, by the removal of small areas of PCTs that do not align with the EEC, is not likely to have a SAII on Freshwater Wetlands EEC.
The Council does not advance any evidence of substance against these assessments by the BDAR. The site has been extensively surveyed and no further surveys are required to carry out the assessment of a SAII. Dr McLean’s evidence about assessing impacts on Southern Myotis and the Black-necked Stork in the SAII assessment is irrelevant given that the species population does not meet a SAII principle of declining numbers, small population size or limited geographic distribution.
Further, Dr McLean’s constant assertions that he “cannot be satisfied” or “cannot accurately determine” matters relating to a SAII do not assist the Court, particularly given that he does not give evidence that engages with the provisions in cl 6.7 of the BC Regulations, the provisions of the BAM or the NSW Government Guidance document. For example, his references to impacts that affect species behaviour (such as FID) are not connected with evidence of an extinction risk, and his uncertainty with whether the SAII must be assessed at a state level points to a lack of engagement with the SAII assessment process and the requirements under the BAM and the Guidance document.
Therefore, contrary to the Council’s contention, I find that the BDAR adequately addresses whether there are SAIIs on the above species and ecological communities. Based on the content of the BDAR, the evidence of Dr Robertson and my conclusions earlier about the likely impact on biodiversity values, I conclude that there is not likely to be a SAII on biodiversity values as a result of the proposed development.

As outlined above, the Council contends that the BDAR has not properly assessed the biodiversity values of the site and the impact of the proposed development, as required by s 6.12 of the BC Act. Although the document referenced in the contention has been superseded by the current BDAR, which was prepared to address the matters raised, the Council nonetheless maintains its contentions. Contrary the Council’s position, I consider that the BDAR adequately addresses the matters required by s 6.12 and none of the issues raised by the Council concerning the BDAR warrant refusal of the development application.
Consistent with s 6.12(a) of the BC Act, the BDAR assesses the biodiversity values of the site in accordance with the matters set out in each of the chapters in the BAM concerning Stage 1 Biodiversity Assessment. This includes extensive surveys of the site, vegetation mapping, and additional surveys and mapping in August 2024 to understand how the vegetation had changed since the cessation of slashing. I do not accept the Council’s contentions that any of the surveys for any species have been inadequate. This includes the Common Planigale, for which there were adequate surveys, by IR cameras and pit-fall traps. The BDAR explains that this species is unlikely to be present on the site as there is an absence of suitable habitat (Part 5.2.2).
Consistent with Chapter 4 of the BAM, the BDAR has identified vegetation as recognised PCTs, mapped the distribution of PCTs, and identified the threatened ecological communities associated with each PCT, by their condition state. Adequate justification is provided as to why PCT 1808 is not part of the Freshwater Wetlands EEC, and soil sampling is undertaken to support the conclusion that the PCT 1275 is not part of the Littoral Rainforest EEC. A VIS has been given to each patch of PCT, and this includes the appropriate VIS allocation for areas that have been slashed, as explained above at [318].
As required by s 6.12(b) of the BC Act, the BDAR assesses the impact of the proposed development by reference to the requirements of the chapters in the BAM concerning Stage 2 Impact Assessment. In doing so, it considers both direct and indirect impacts, which are set out in Part 7 of the BDAR, and includes impacts from artificial lighting, impacts related to FIDs for bird species, and construction impacts. These are considered in detail at Parts 7.4 and 7.5 of the BDAR. Contrary to the Council’s position, each indirect impact particularised in the contentions has been adequately dealt with the BDAR and appropriately excluded.
In assessing the impacts, the BDAR makes the extent of impacts clear, including the extent of clearing or loss of vegetation integrity, and confirms that any altered hydrology of EECs in the conservation area does not arise from the proposed development, but may arise from sea level rise (Part 7.5.2). It also makes it clear that it is unlikely that an impact would occur to mangroves along Emigrant Creek due to the distance from the discharge point and the rock lined wall that extends downstream on the bank (Part 7.5.2.2). A range of impacts on EECs are assessed, and, consistent with Chapter 9 of the BAM, the BDAR considers whether there is a SAII on each of the EECs and species identified by the Council and in Planners North, as set out above at [392] to [406].
Consistent with s 6.12(c) of the BC Act, and as considered above at [382] to [388], Part 6 of the BDAR also sets out the measures that the proponent of the proposed development will take to avoid or minimise the impact of the development. Part 7.10 sets out the measures for mitigating impacts to native vegetation and habitat, including during construction, and includes mitigation measures to control sediment and erosion (at 7.10.3) and for the reduction of light spill (at 7.10.12).
As required by s 6.12(d) of the BC Act, the BDAR adequately specifies, in accordance with the BAM, the number and class of biodiversity credits that are required to be retired to offset any residual impacts. These credits are conservative, with the Common Planigale assumed to be present, the Freshwater Wetland EEC presumed to exist on the site (even though it does not), and the mosquito buffer taken to be completely cleared, even though much of the vegetation will remain.
The BDAR therefore complies with s 6.12 of the BC Act. There is nothing raised by the Council in the contentions concerning the BDAR (contentions 3, 4, 5, 6, 33) that dissuades me from this conclusion, or that would otherwise warrant refusal of the development application. The BDAR is properly certified, is dated 10 September 2024 and was submitted within 14 days, as part of a Notice of Motion filed on 13 September 2024 and became part of the development application on 17 September 2024. There is no issue with it using archived PCTs in circumstances where the development application was lodged prior to the end of the transitional arrangements in April 2024. There is sufficient data to support the findings in the BDAR concerning the vegetation mapping, the existing PCTs, the VIS for each patch, the fauna present on the site, the impacts on EECs and threatened species habitat, the impacts on threatened species, and the credits required to offset the residual impacts of the proposed development. The BDAR is consistent with the requirements of the BAM. The fact that it doesn’t consider other alternative project layouts is of no consequence, given that the current form of the proposed development is the selected alternative following the decision in Planners North.
I am therefore satisfied that the BDAR is adequate and that the impacts of the proposed development on biodiversity values do not warrant refusal of the proposed development. The development avoids impacts on Coastal Saltmarsh EEC and on the highest integrity SOFF EEC vegetation, such that only 0.72ha of the 10.17ha of land to be cleared for the development aligns with an EEC. It avoids not only the biobanking area, but it also avoids the additional areas of 4.24ha for a proposed stewardship site and 0.47ha for restoration planting within the conservation area. It minimises the loss of vegetation that is threatened species habitat, so that there is negligible impact on threatened species. Indirect impacts are either managed or mitigated, and the VMP proposes revegetation of an area of 3.49ha within the cleared development area, in addition to the proposed stewardship site and restoration plantings in the conservation area. The proposed development is not likely to cause a SAII on biodiversity values, and the requirements of the BC Act, the BC Regulations and the BAM have been met.

In its Amended Statement of Facts and Contentions, the Council contended that the earlier vegetation management plan did not contain sufficient information to enable a proper assessment. To address the Council’s concerns, the present VMP was prepared and now forms part of the development application. Notwithstanding this, the Council maintains its contention and relies on the evidence of Dr McLean that there are four main issues with the VMP. The first is that he opines that the replanting will not regenerate SOFF EEC. The second is that there is not a trigger action response plan to ensure that performance criteria are being met. Thirdly, he opines that the width of replanting along Emigrant Creek provides an inadequate buffer, consistent with his evidence concerning buffer distances. Fourthly, he considers there to be a lack of detail concerning planting in the floodway.
I am not persuaded that any of these issues identified by Dr McLean, or any of the points raised by the Council in its contention, are matters that make the VMP unacceptable or that would otherwise warrant refusal of the development application.
To support his first issue with respect to whether replanting will regenerate plant assemblages that constitute SOFF EEC, Dr McLean relies on studies that are wholly unrelated to the circumstances of the present site. In doing so, he also presents a position entirely contrary to his earlier view that plantings around a historical homestead would constitute an EEC. The studies Dr McLean first relies upon relate to Cumberland Plain Woodland EEC, which is known as being difficult to regenerate following soil disturbance, the fact of which is contained in the relevant final determination. No such equivalent information is contained in the final determination concerning SOFF EEC. The other studies Dr McLean relies upon are undocumented observations by him with no information about the history of those sites or their similarity to the present site. Accordingly, there is no basis upon which to support Dr McLean’s opinion, and I prefer the evidence of Dr Robertson that appropriate management of the area can result in the SOFF EEC being re-established through vegetation. I accept Dr Robertson’s evidence that, given there is regrowth of Swamp Oak occurring naturally within the Biobanking Area, there is a suitable environment for Swamp Oak and there is no reason to suggest that restoration of SOFF EEC could not be successful through the combination of natural regeneration and active restoration.
With respect to the second issue, I consider that the VMP has adequate timeframes around expected outcomes and reporting requirements. It sets out monitoring requirements, the location of monitoring plots, the predicted changes in VIS, reporting requirements, performance criteria and corrective actions. In my view, given the length of time over which the VMP is proposed to operate and over which vegetation matures and regenerates, the performance criteria and corrective actions provided are adequate ‘trigger and response’ measures.
Thirdly, I above dealt with the issue of the width of the replanting along Emigrant Creek. Whereas Dr McLean seeks a 40m wide buffer, 10m of planting is provided. This is in addition to the bank of Emigrant Creek that is not within the site and therefore not covered by the VMP. The proposed planting is:

The Council contends that the proposed development conflicts with the Biobanking Agreement, as a result of lighting impacts, impacts on hydrology, the proposal to add a new stewardship area and other activities that might arise in the Biobanking Area. However, no such conflicts arise, and the Biobanking Agreement will be required to be complied with regardless of whether the proposed development is pursued. I reach this conclusion for the following reasons.
Firstly, as outlined above at [363], the proposed lighting has been analysed in a 3D model, which indicates full compliance with the AS/NZS 4282:2023, including proof of 0.0 lux at the interface with the Biobanking Area, and upward waste light ratio of 0.00. Accordingly, there is no impact on the Biobanking Area as a result of the lighting, and therefore no conflict with the terms of the Biobanking Agreement.
Secondly, it is clear from my earlier reasons that the proposed development will not cause erosion or increased sediment, or changed hydrology through surface water flows or groundwater, in any of the area the subject of the Biobanking Agreement. This is set out above at [148] to [149], [152] to [154], and [166] to [176].
Thirdly, if the new stewardship area is not accepted, then it will continue to be managed under the VMP. There is no issue in that regard.
Fourthly, no activities are proposed in the Biobanking Area that would conflict with the Biobanking Agreement. Both fencing and the mosquito buffer will separate the areas of human activity from the edge of the development area, so that there will no entry into the conservation area. Therefore, there is no reason why the proposed development would cause human disturbance to the Biobanking Area in a manner that is in conflict with the terms of the Biobanking Agreement.
Further, contrary to the Council’s contention, the proposed stewardship area does not overlap with the mosquito buffer, and inconsistences in the BDAR concerning the size of the Biobanking Area are irrelevant to the adequacy of the BDAR and the assessment of the merits of the development application (noting that, in the Biobanking Agreement itself there are inconsistent references to the size of the biobanking area).
Therefore, there are no conflicts that could arise with the Biobanking Agreement as a result of the proposed development.

The Council raised a contention that development consent must be refused as the impact of the proposed development on Aboriginal sites and objects could not be assessed, as there was no Aboriginal cultural impact assessment. This contention was raised on the basis that the Aboriginal Heritage Information Management System (AHIMS) indicates that there are registered Aboriginal sites or objects within proximity to the development area.
The relevant AHIMS record is for an artefact associated with the Ballina open campsite and the co-ordinates relate to Lot 5 DP529094, outside the site and south of the caravan park. The description of the record includes a reference to a thesis on the Ballina shell middens.
An Aboriginal Cultural Heritage (Due Diligence) Assessment was provided in the amended development application the subject of a Notice of Motion filed on 13 September 2024. The assessment is dated July 2023. Rather than considering the assessment in the intervening period between receipt and the hearing, the Council instead complains in its written submissions that “even if the assessment is satisfactory”, there has been no opportunity for the Jali Local Aboriginal Land Council to consider its findings, and the document is marked draft and “refers to the old form of the development.” The reference to the “old form” of the development is to the layout of the proposed development before the floodway was introduced in the north-western part of the site.
Had the Council taken the time to review the contents of the assessment, which in my view, it had sufficient time to do, one wonders if it was reasonable for the Council to maintain its position. The assessment recorded the outcome of a survey of the development area, carried out in consultation with the Jali Local Aboriginal Land Council and with one of their members in attendance. The survey found that no Aboriginal sites could be located, that there is no indication on the ground that the site record in the AHIMS is accurate, that there are no potential probable locations for such an item given the soil conditions, and that the development area has been subject to significant ground disturbance. The Jali Local Aboriginal Land Council was not only consulted in the early stages of this assessment, but it participated in the site survey through its representative. Further, there is no reason as to why the change to the layout of the development would have any impact on their findings. The fact that the report has the word ‘draft’ on it, is of little consequence. The Council’s complaints have no reasonable basis.
I have therefore considered the effect of the proposed development on the heritage significance of the Aboriginal place of heritage significance, and on any Aboriginal object located at the place, in satisfaction of cl 5.10(8)(a) of the BLEP. Further, the Jali Local Aboriginal Land Council was notified of the development application on 14 March 2023 and 8 May 2024, in satisfaction of cl 5.10(8)(b) of the BLEP. I note also that the Anderson family, who identify themselves as the traditional owners of the land, were also notified of the development application on 14 March 2023 and 8 May 2024, and Mr Troy Anderson, of the Numbahging People, made a written submission and similarly participated in the site survey recorded in the assessment.
Therefore, this contention does not warrant refusal of the development application.

The Council contends that development consent should be refused as the proposed development does not “achieve the provisions of the BDCP”. The particulars given by the Council in support of this contention are simply a copy-paste of the headings of sections within Chapter 2 of the BDCP, and are inadequate to understand what controls of the BDCP are alleged to have been breached. Further, the Council has not set out any facts on which it relies that would cause a particular provision to be breached.
As I stated in Barhom v Randwick City Council [2024] NSWLEC 1357 at [78], whilst there exists a persuasive burden to be discharged by the applicant for development consent to establish that development consent should be granted (see Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]), this “does not give a consent authority a carte blanche” to identify impacts or breaches of development controls without a proper substantive foundation. By failing to particularise the precise BDCP control that is breached or the facts that cause the breach, the Council has neglected to adequately put its case to the Court on this contention. This contention must consequently fail on that basis.
Nevertheless, having considered the terms of the BDCP, I note that the Council agrees that the proposed development now satisfies Section 3.7 Waste Management, Section 3.15 Crime Prevention, Section 3.2 Ridgelines and Scenic Areas, and Section 3.3 Natural Areas and Habitat. I have above considered Section 3.6 Mosquito Management and Chapter 2B concerning floodplain management.
In relation to Section 3.1 Land Use Conflict, Ms McCabe and Mr Mead agree that the residential use of the site does not “result in a land use conflict, given the adjoining caravan park use, dwellings and residential subdivision on the eastern side of Burns Bay Ferry Road” (Ex 28, [183]). Ms McCabe and Mr Mead agree that the setback of 50m is adequate to the caravan park, and I accept Mr Mead’s evidence that this interface is acceptable given the size of the setback and the proposed landscaping, even if it is not densely planted.
In relation to Section 3.9 Stormwater Management and Section 3.10 Sediment and Erosion Control, I have earlier found that both the proposed stormwater management system and the sediment and erosion controls are acceptable. Similarly, in relation to Section 3.12 Heritage, I have above found that there is no impact on Aboriginal cultural heritage. The Council has not identified any control in the BDCP in any of these sections that is breached by what is proposed by GTH. Similarly, whilst Chapter 2A Vegetation Management is identified in the BDCP, there does not appear to be any particular provisions relied upon by the Council or alleged to be breached.
There is, therefore, nothing in this contention that warrants refusal of the development application.

The Council raised two contentions with respect to landowner’s consent, which it declined to give. The first concerned works on its land for the discharge of stormwater to Emigrant Creek (contention 25), which involves the construction and upgrade of a stormwater culvert under Emigrant Creek Lane. The second concerned landscaping and earthworks on River Street (contention 26). Although the Council initially alleged that the owner of the land in contention 25 was the Crown, it now agrees that the Council is the landowner. Although not raised in the contentions, other works depicted in the plans as being carried out offsite include works to Burns Point Ferry Road to allow vehicular and pedestrian access, and for a pedestrian refuge.
In contention 26, the Council acknowledged that the Court had the power to grant landowner’s consent pursuant to s 39(2) of the L**and Environment Court Act 1979 (NSW) (see contention 26(c)). However, at the hearing, the Council changed its position, submitting instead that the Court’s power to exercise the functions of the consent authority is constrained to the powers of the NRPP, which did not extend to the grant of landowner’s consent with respect to land owned by the Council. GTH did not dispute this position. In response to this changed position, on the final day of the hearing GTH amended the development application by removing the offsite works from the proposed development, in accordance with the Statement of Environmental Effects dated 19 September 2025. As a result, the Council agreed that these contentions were resolved.
To ensure that the offsite works were nonetheless carried out, the parties agreed to a deferred commencement condition requiring development consent to be obtained for all offsite works.
Following the conclusion of the hearing, after judgment was reserved, the Council sought orders to reopen its case, by the filing of a Notice of Motion on 13 November 2024. The application was triggered by the decision of the Court in Georges River Council v Eskander [2024] NSWLEC 98 (Eskander) on 23 September 2024, which concerned the interpretation of a clause in the Standard Instrument - Principal Local Environmental Plan regarding the provision of essential services. The BLEP contains this clause, which provides, at cl 7.7(2):

In Eskander, the Court found that the words “adequate arrangements have been made” require objective and tangible proof that an arrangement has been made, and the absence of such proof cannot be overcome by the imposition of a deferred commencement condition. The Council, in its submissions of 12 December 2024, was concerned that the deferred commencement condition agreed upon in these proceedings was inadequate to constitute “adequate arrangements” for the purpose of cl 7.7, there being no certainty that the offsite works required for stormwater drainage and vehicular access would be approved by a development consent.
The Council’s application to reopen its case was granted on 12 February 2025. Following this, the parties came to an agreement on the lawful imposition of a condition of consent pursuant to s 4.17(1)(f) of the EPA Act, requiring the carrying out of offsite works (offsite works condition). Such a condition does not require owner’s consent (see Stokes v Waverley Council (No 2) (2019) 242 LGERA 392; [2019] NSWLEC 174 at [70]), and, as the development application is for integrated development, the condition obliges the Council to issue a s 138 approval for the works under the Roads Act 1993. Accordingly, the Council accepts, and GTH agrees, that the imposition of a condition of consent requiring the carrying out of the offsite works required for vehicular access and stormwater drainage will satisfy the requirements of cl 7.7 of the BLEP.
Further, the parties agree, and I accept, that the works the subject of the offsite works condition have been comprehensively assessed by the experts during the course of the proceedings, with no issues raised with respect to the same. Those works were originally part of the development application, they are detailed in the engineering plans that are relied upon for the development application, and those plans have been considered by the civil engineers. Whilst they were removed from the development the subject of the development application, they remain depicted on the plans so that their impact can be understood. Based on the evidence of the civil engineers, these offsite works are acceptable.
Notwithstanding the parties’ agreement, the Council submits that the Court, in exercising its discretion, ought not impose the offsite works condition. The Council submits that the effect of the late amendment was that the offsite works “were considered by Council’s engineer in the context of the merits of the development application, but the (not insignificant) changes to the roads were never put before the Council proper for consideration” (RWS 3/4/25, p.14). The Council submits that this undermines the process by which approvals should be sought with the relevant approval body, as the granting of consent will obligate the approval body to issue their approval, without having had the opportunity to review the works themselves and request additional information.
The problem with the Council’s position is that, in the present circumstances, the approval authority and the respondent are one and the same. The Council has been aware that an approval under the Roads Act 1993 (NSW) was required since the development application was lodged on 23 January 2023. Given that the Council has been the respondent to the appeal since it was lodged on 18 July 2023, it cannot logically assert that it has not been provided with an opportunity to consider the offsite works in its capacity as the approval authority. The Council’s submission that it has not put the plans “before the Council proper for consideration” is akin to an admission that its left hand does not talk to the right hand. The legal entity is one and the same. The Council, as the respondent to the appeal, is privy to every development application document and has had ample opportunity to consider the works that will form the substance of the s 138 application. I note that its employee, Mr Knight, participated in the joint conferencing process as the Council’s expert and was cognisant of the requirements for the s 138 application (see Ex 8, [38]). The Council has therefore had adequate time to request additional information and to raise any issue with respect to the offsite works. The Council has not made such a request or raised any such issue. If that is because the left hand does not talk to the right, that is a failing of their own making, and does not arise from lack of opportunity. Therefore, I cannot accept the Council’s position that the imposition of the offsite works condition in these proceedings will undermine the consultation process that arises with integrated development.
I therefore consider it appropriate to impose the offsite works condition, requiring the carrying out of the works as a condition of development consent. Such a condition can be lawfully imposed pursuant to s 4.17(1)(f) of the EPA Act and does not require owner’s consent. The expectation that a person that benefits from a consent will comply with its conditions, together with the terms of s 4.47(5)(b) of the EPA Act that prevent the refusal of the application under s 138 of the Roads Act, means that there is certainty that these works can and will be carried out. To the extent that those works are required for vehicular access and stormwater drainage, the imposition of the offsite works condition is sufficient to satisfy me that “adequate arrangements have been made” for those services, consistent with the requirements of cl 7.7 of the BLEP. The impacts of those offsite works are also well understood and have been the subject of assessment and consideration by the civil engineers, with no outstanding issue of substance arising.

The Council contends that the site is not suitable for the proposed development, citing its potential impacts on biodiversity values, the extent of landform modification, overdevelopment, the isolation of a vulnerable resident population in the event of a flood, impacts on future residents by mosquitoes and odour, and the objectives of the adjoining land zoned W1 Natural Waterways. It also contends that the proposed development is not in the public interest, as it will create an additional burden on the SES, and does not result in “orderly and economic development of land”, although the Council gives no evidence to support the latter. The public interest contention also states that development consent should be refused “for the reasons outlined in the submissions where they are consistent with these contentions”, which is a contention that raises no issue of substance.
To raise these matters in two additional contentions is largely superfluous. Insofar as these contentions raise genuine issues, they have been considered above. For the reasons expressed above, the proposed development has an acceptable impact on biodiversity values, with only 0.72ha of the 10.17ha of land to be cleared for the development aligning with an EEC, proposing areas for revegetation and a new stewardship site, and residual impacts offset through the biodiversity offsets scheme. The proposed development is not an overdevelopment of the site, as it limits the built form to one-storey, and restricts the development area to the north-western part of the site that is most heavily impacted by past agricultural land use.
The extent of landform modification is anticipated by Chapter 2B of the BDCP concerning flooding, as well as in the Council’s 2012 Floodplain study. The resident population will either be evacuated or provided with a safe refuge in the event of a flood, which complies with the BDCP controls and ensures that there are no adverse impacts associated with isolation in these events. There is no basis to conclude that this will create a burden on the SES. The impacts from mosquitoes and odour are agreed to be appropriately mitigated, and the proposed development will not have an adverse impact on the adjacent waterways, such that no issue arises concerning the objectives of the W1 Natural Waterways zone.
Therefore, nothing in either of these contentions raises a new issue warranting further consideration.

The Council identifies a number of items that it considers are required for a proper assessment of the development application, which it says are not provided. The Council remains of the position that the development application should be refused as the absence of these items means it does not “provide sufficient information to undertake a holistic assessment of the Proposal”. I cannot accept the Council’s position, for the reasons that follow.
Whilst the Council alleges inconsistencies in the documents and inconsistencies in percentages of stormwater discharge (particulars (a) and (b)), it does not particularise them in any way, or even outline what inconsistency would necessitate a refusal of the development application.
The Council acknowledges that particulars (c) and (l) are resolved. In relation to (i), (j) and (k), Ms McCabe and Mr Mead agree that these matters can be dealt with by condition of consent, and conditions of consent have been agreed upon concerning these matters. In relation to particular (h), no advertising signage is sought to be approved as part of the development application.
In addition, the Council has not established that, in accordance with particulars (d) and (e), there is an inadequate response to comments by the Biodiversity and Conservation Division of the Department of Planning concerning the BDAR, and by the Department of Primary Industry – Fisheries concerning the AETR, or explained why such an inadequacy, if it exists, would be fatal to the development application. For the reasons I have given earlier, the BDAR is acceptable and the expert evidence supports the findings of the AETR.
Particular (f) concerns the absence of a Bushfire Assessment Report, which has now been provided in the Bushfire Hazard Assessment by Blackash Bushfire Consulting dated 5 September 2024. Contrary to what is alleged in this particular, the assessment considers the future vegetation types, including the features of the biobanking area.
Particular (g) concerns the odour from mangroves, which is dealt with above, and is the subject of agreement by the air quality experts. I have already made findings with respect to the adequacy of the BWQMMP, which particulars (m) and (o) relate to, and the CEMP is largely agreed, subject to an agreed condition for additional details to be included.
Contrary to the Council’s position, none of these particulars concerning alleged insufficient information would warrant refusal of the development application.

Pursuant to ss 2.10 and 2.11 of the SEPP RH, development consent must not be granted to development in the coastal environment area and coastal use area, unless the Court, exercising the functions of the consent authority, has considered whether the development is likely to cause an adverse impact on the matters in s 2.10(1) and s 2.11(1)(a). Sections 2.10 and 2.11 are quoted in full at [30]. In addition, s 4.6 requires consideration of whether the land is contaminated. GTH has advanced the basis upon which the requirements of these sections are met in Annexure A to its outline of closing submissions dated 23 September 2024.
In relation to s 2.10, based on the evidence in these proceedings, I have considered the impact on each of the matters in sub-s (1). The proposed development will replicate the existing surface water flows to the conservation area and to the waterways, whilst also improving the water quality of those flows. The proposed development will have no impact on the groundwater of the conservation area, and will not affect coastal environmental values and natural coastal processes. Similarly, based on my findings on aquatic ecology and biodiversity conservation, there will be either no impact or negligible impact on marine vegetation, native vegetation and fauna and their habitats. By restricting the development footprint to the north-western portion of the site, the headland, where the site interfaces with Emigrant Creek and the Richmond River, remains largely undisturbed. Further, there is no change to public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, there is no impact on Aboriginal cultural heritage, practices and places, and the surf zone is not relevant. Therefore, consistent with s 2.10(2)(a), I am satisfied that the development is designed, sited and will be managed to avoid an adverse impact on the matters in sub-s (1).
With respect to s 2.11, based on the evidence before the Court, I have considered whether the development is likely to cause an adverse impact on the matters outlined in sub-s (1)(a). The proposed development will not change any existing access to and along the foreshore, beach, headland or rock platform for members of the public, and will not cause overshadowing, wind funnelling and the loss of views from public places to foreshores. Further, as a result of the built form and fill pads being located in the north-western portion of the site, and the vegetated buffer between the development area and Emigrant Creek, I consider that there is no impact to the visual amenity and scenic qualities of the waterways and their foreshore, which might be considered part of the coast. Further, as stated above, there is no impact on Aboriginal cultural heritage, practices and places, and nor is there any impact on cultural and built environment heritage. Accordingly, consistent with s 2.11(1)(b)(i), I am satisfied that the development is designed, sited and will be managed to avoid an adverse impact on the matters in s 2.11(1)(a). Additionally, I have taken into account the surrounding coastal and built environment, and consider that the bulk, scale and size of the proposed development is appropriate, for reasons already given.
Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the SEPP RH, and, consistent with the requirements of s 4.6(2), I have considered a report specifying the findings of a preliminary investigation of the land concerned and a Detailed Site Investigation report prepared by ADG Consulting dated December 2022. The report confirms that the site is not significantly contaminated, does not pose a risk of harm to human health or the environment, and is suitable for the proposed use subject to implementation of the Remediation Action Plan dated December 2022.

The WMAMP is sought by the Council as a single document for the monitoring of the areas mapped on the Coastal Wetlands and Littoral Rainforest map under the SEPP RH, the biobanking area, and the areas subject to the VMP. It is intended to require the monitoring of those areas, and remedial action to address any ecological decline based on vegetation integrity scores.
I consider that a WMAMP is not necessary, for two reasons. The first reason is that these areas, and the site generally, is not an undisturbed ecosystem that is to be used as a baseline and maintained in its current condition. Rather, the evidence is that the site is subject to ongoing changes resulting from historical disturbances, as set out in the evidence of Ms Conacher and Dr Thorogood.
Historically, the site has been subject to significant disturbance with an extensive history of being cleared and used for agricultural purposes. Those uses continued for some time, with some grazing continuing until 2021 and slashing continuing until more recently. The drainage and tidal inundation of the site have been highly modified by the construction of drainage channels, tidal gates and bunds for agricultural uses, which has allowed tidal water to inundate the site to a far greater extent than what occurred prior to the construction of the drainage channels, with the growth of mangroves in the constructed channels continuing to influence drainage and tidal inundation. This has also resulted in the generation of artificial wetlands, as described above at [346]. The aquatic ecologists agree that these areas remain most influenced by tidal changes and sea level rise, and that any changes to ground and surface water resulting from the proposed development will be relatively minor in the context of the ongoing changes to the site resulting from historical disturbances.
The second reason why a WMAMP is not necessary is that the impacts of the proposed development are already proposed to be adequately monitored through the VMP, the BWQMMP and the 2024 GWMAMP. Each of these management plans set out appropriate trigger levels and corrective actions, and achieve the Council’s stated intention to protect the areas mapped on the Coastal Wetlands and Littoral Rainforest map under the SEPP RH, the biobanking area, and the areas subject to the VMP, through monitoring vegetation integrity scores, surface water quality and groundwater.
Proposed condition 20A(b) should therefore be deleted.

GTH Resorts No 10 Pty Ltd v Ballina Shire Council

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English brief of this case

Catchwords

Judgment

Judgment

The proposed development

The site and the locality

Historical development application

The planning framework

The expert evidence

Town planning evidence

Civil engineering

Geotechnical engineering

Groundwater and surface water

Flood engineering

Bush fire hazard

Aquatic ecology

Arboriculture and biodiversity conservation

Acid Sulfate Soils

Odour

Mosquitoes

The resident objector evidence

The contentions that are now resolved

Application of SEPP Housing (Contention 1)

Acid Sulfate Soils (Contentions 15 and 23(c))

Access to Burns Point Ferry Road and River Street (Contentions 16 and 17)

Geotechnical assessment (Contention 19)

Site isolation (Contention 22)

Odour (Contention 30)

Mosquitos (Contentions 20 and 37)

Vegetation Management Works (Contention 35)

Staging of the development (Contention 39)

Construction impacts (Contention 40)

Built form and amenity (Contention 18)

The built form controls

The built form relationship

The parties’ positions on built form and amenity

The built form and its impacts do not warrant refusal of the development application

Remaining matters in Contention 18

Site suitability due to site re-zoning (Contention 28)

The re-zoning does not render the site unsuitable

Bushfire (contention 29)

The proposed development has adequate bushfire protection measures

Remaining matters under the SEPP Housing (Contention 41)

Stormwater design (Contention 13)

The stormwater design is acceptable

Groundwater impacts (Contention 14)

There are no unacceptable impacts from or on groundwater

Adequacy of the Baseline Water Quality Monitoring and Management Plan (Contention 32)

The BWQMMP is adequate

Flood Impacts and Flood Evacuation (Contentions 11 and 12)

The flood affectation of the site

The relevant BDCP provisions

The flood modelling

The emergency response strategy

The Council’s remaining issues

Assessing the flood impacts and emergency response

The flood impact is acceptable

The emergency response is acceptable

Satisfied of the matters in cl 5.21 of the BLEP

Aquatic ecology (Contentions 2, 9, 10, 38)

Impacts on coastal wetlands

Buffers to retained wetlands

Impacts on fish habitat

Impacts on Oyster aquaculture

Biodiversity Conservation (Contentions 3, 4, 5, 6, 7, 8, 33, 34, 36)

Impacts of historical slashing

Impact on endangered ecological communities

The evidence of impact on EECs

The likely impact on endangered ecological communities

The impact on threatened species and their habitats

The likely impact on threatened species or their habitats

The impact of the proposed development is adequately avoided

The BDAR evaluates whether there is a SAII on biodiversity values