Hampton Heights Pty Ltd v Central Coast Council

Catchwords: DEVELOPMENT APPEAL — residential Torrens title subdivision — vegetation removal — strategic road layout in an urban release area — whether serious and irreversible impacts on the Swift Parrot — whether serious and irreversible impacts on the Squirrel Glider — application of the precautionary principle — treatment of interface of a subdivision with signification vegetation — amenity impact of lot orientation and setbacks — orders

Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 6.4, 6.5, 7.2, 7.3, 7.7, 7.13, 7.16, Pt 7
Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Biodiversity Conservation Regulation 2017, cll 6.7, 7.2, 7.3
Central Coast Local Environmental Plan 2022, cll 4.1, 4.1F, 5.10, 6.1, 6.2, 7.1, 7.6, Pt 6
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cll 1.9, 3C, Subdiv 4

Cases Cited: Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 2) (2016) 215 LGERA 157; [2016] NSWLEC 16
Leatch v National Parks & Wildlife Service (1993) 81 LGERA 270
MKY Enterprises (Aust) Pty Ltd v Central Coast (No 2) [2025] NSWLEC 1215
Northern Beaches Council v Vigor Master Pty Ltd [2025] NSWLEC 136
Planners North v Ballina Shire Council (2021) 251 LGERA 309; [2021] NSWLEC 120
Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 113
Vigor Master Pty Ltd v Northern Beaches Council [2025] NSWLEC 1520
Wehbe v Pittwater Council [2007] NSWLEC 827

Texts Cited: Central Coast Development Control Plan 2022
Department of Climate Change, Energy, the Environment and Water, National Recovery Plan for the Swift Parrot (2024)
Department of Planning, Industry & Environment, Guidance to assist a decision-maker to determine a serious and irreversible impact (August 2019)
Andrew Smith & Wyong Shire Council, Squirrel Glider Conservation Management Plan: Wyong Shire (November 2002)

Category: Principal judgment

Parties: Hampton Heights Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
M Seymour SC with A Pearman (Applicant)
C Ireland (Respondent)
Solicitors:
Mills Oakley Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/340208

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA 3426/2022 seeking consent for vegetation removal, demolition of existing structures, Torrens Title subdivision comprising 86 residential lots and one (1) residue lot within the C2 Environmental Conservation zone, including associated earthworks, drainage and landscape works, carried out over three (3) stages, (Proposed Development) at 60 and 70 Jensen Road, Wadalba legally described as Lot A and Lot B in DP33532 (the Site).

2. This case is about ecology (biodiversity assessment) and planning. In relation to ecology, the core issue in dispute between the parties is whether the grant of consent must, or even as a matter of discretion should, be refused pursuant to the application of s 7.16(2) of the Biodiversity Conservation Act 2016 (NSW) (BC Act) and whether the evidence supports a conclusion that the Proposed Development is likely to have serious and irreversible impacts (SAII) on biodiversity values, in particular on two fauna species being the Swift Parrot and the Squirrel Glider. I deal with the ecology issue in accordance with the Amended Statement of Facts and Contentions filed by the Respondent on 17 July 2025 (ASOFAC) (Ex 1) at contention 1 and the unnumbered contention from [58] below.

3. In relation to planning, the Respondent’s case is that the Proposed Development should be refused because it is poorly designed and exhibits non-compliance with basic requirements in the Central Coast Development Control Plan 2022 (CCDCP) as regards:

4. Urban Interface Areas (UIA), also referred to as edge effects of the interface of a subdivision with significant vegetation, as contended in Contention 2 of the ASOFAC; and

5. lot orientation and setback, in particular regarding not achieving the 15 m lot width at the front setback of 4.5 m, which will impact on future residential amenity as contended in Contention 3 of the ASOFAC. I deal with the planning contentions from [140] below.

6. The relevant provisions relating to the Respondent’s case regarding ecology are set out in the BC Act in Pt 7 titled “Biodiversity assessment and approvals under the Planning Act”. In relation to the planning contentions, the relevant provisions are set out in the Subdivision Chapter 2.4 of the CCDCP, specifically Section 2.4.2.7 UIA Requirements and various provisions in Section 2.4.3 Residential Subdivision. The CCDCP’s locality specific Chapter 5.9 Wadalba South – Urban Release Area also contains relevant provisions which traverse both ecology and planning, particularly in relation to the issue of the location of what is referred to as the Collector Road. The location of the Collector Road is a key issue in these proceedings, and I come back to this at [22].

7. The Respondent makes two seemingly inconsistent submissions in closing written submissions (RWS) at par 8, 9 and 10 regarding the Proposed Development’s consistency or otherwise with the CCDCP. Firstly, the Respondent submits that the “impact on the Swift Parrot and Squirrel Glider are the remaining significant issues in the case, together with planning issues concerning the provision of Urban Interface Areas and as regards predominant lot orientation (which is not provided in accordance with DCP requirements).” [emphasis added]

8. The Respondent seems to require strict consistency with the CCDCP regarding the planning issues (UIA and lot orientation) to support the contention that the Proposed Development should be refused. However, in the following paragraphs of the RWS, the Proposed Development is criticised for not taking “sufficient advantage of the flexibility afforded” by the CCDCP provisions regarding the Indicative road layout and structure plan in Chapter 5.9 of the CCDCP at Fig 3 (reproduced below at Fig 4), and claims at par 10 of the RWS that “this inflexibility appears to flow from planning advice that the location of the Collector Road is to be static: JER Planning, p6 (Smith).” Similar reliance on flexibility is made by the Respondent in opening submissions as quoted below at [28].

9. I will come back to the consideration of consistency or otherwise with the CCDCP and the role of the objectives of any of the standards or controls when I consider s 4.15(3A) of the EPA Act below at [167].

10. As a result of the amendments to the Development Application, as listed below at [188], the number of residential lots proposed as a result of the subdivision is reduced from 86 to 68 (resulting in other consequential changes such as to the lot numbering), the size of the residual conservation lot, labelled as “Public Reserve” and numbered Lot 150, is increased from 0.44 hectares (ha) to approximately 1.76 ha expanding into the land zoned R2 Low Density Residential and the Torrens title subdivision will take place in stages described by the Applicant in the Applicant’s written Closing Submissions (AWS) at par 6 which I summarise as follows (see also condition 1.4, (Ex Q)):

11. Stage 1: initial subdivision into 45 residential lots (including Lot 130 holding the heritage item), 4 residue lots and 1 public reserve (Lot 150) and the creation of 4 roads. The placement of road 1, also referred to as the Collector Road, will be addressed in some detail in this judgment.

12. Stage 2: subdivision of residue Lot 146 into proposed Lots 201 to 203 at the south-western corner of the Site.

13. Stage 3: subdivision of residue Lot 148 into proposed Lots 301-310 along the eastern boundary.

14. Stage 4: subdivision of residue Lot 147 into proposed Lots 401-406 at the south-eastern corner of the Site and adjoining Lot 130 (with the heritage item).

15. Stage 5: subdivision of residue Lot 149 into proposed Lots 501-504 at the north-west of the Side.

16. I reproduce below at Fig 1 an extract of the Land Zoning Map from the ASOFAC and at Fig 2 an extract from the Staging Plan Drawing P00470-SUBDIV-0001 Rev F (Ex D):

Fig 1: Land Zoning Map extracted from the ASOFAC (Ex 1)

Fig 2: extract from the Staging Plan Drawing P00470-SUBDIV-0001 Rev F (Ex D)

10. The Proposed Development also includes civil works (Ex D, Tab 2) which involve clearing of approximately 5.49 ha of native vegetation in an area declared under cl 7.2 of the Biodiversity Conservation Regulation 2017 (BC Regulation) to exceed the threshold meaning that a Biodiversity Development Assessment Report (BDAR) is required to support the development application for the Proposed Development. The Applicant relies on the BDAR listed at [188] (Ex H). Other civil works include the decommissioning and filling of dams and demolition of existing structures.

11. The proceedings commenced with a view of the Site with the parties and their experts (Ex 10). I reproduce an aerial view of the Site from the ASOFAC (Ex 1) at Fig 3.

Fig 3: extract from p 4 of the ASOFAC: Aerial view of the Site

12. There were no objectors on site. However, there are seven written submissions included in the Respondent’s Bundle of Documents at Tab 11 (Ex 6) in response to the notification of the Proposed Development, as it then was, from 2 December 2022 until 20 January 2023 and the issues raised at that time are summarised in the ASOFAC.

13. The parties rely on the written evidence of the following experts:

14. Water and Wastewater civil engineers, Mr Minh Tran for the Applicant and Dr Luke Drury for the Respondent who prepared a Joint Expert Report filed 14 August 2025 (JER Waste and Wastewater) (Ex 2), and a Supplementary Joint Expert Report filed 26 August 2025 (Supplementary JER Waste and Wastewater) (Ex 11);

15. Traffic engineers, Mr Daniel Fonken for the Applicant and Mr Paul Corbett for the Respondent who prepared a Joint Expert Report on 14 August 2025 (JER Traffic) (Ex 3);

16. Town planners Chris Smith for the Applicant and Stuart McDonald for the Respondent who prepared a Joint Expert Report filed 14 August 2025 (JER Planning) (Ex 4); and

17. Ecologists Ian Benson for the Applicant and Dr Chris McLean for the Respondent who prepared a Joint Expert Report filed 14 August 2025 (JER Ecology) (Ex 5).

18. In opening submissions, the parties agree that the main issues remaining in dispute are ecology and planning. The other contentions in the ASOFAC have been resolved as explained by the Applicant in the AWS. As some of those resolved contentions require satisfaction of jurisdictional prerequisites, I summarise how those contentions have been resolved below at [175].

19. In this judgment I will firstly consider the location of the Collector Road, then set out the evidence of the biodiversity assessment of the Swift Parrot and the Squirrel Glider together with my reasons regarding the ecology issue followed by addressing the planning contentions 2 and 3 and finally the satisfaction of the jurisdictional prerequisites.

20. In order to properly appreciate the evidence in this case and how I reach the conclusion to grant the consent, it is helpful to set out a brief description of the Site.

Description of the Site

17. The Site has a total land area of approximately 7.574 ha. The Site contains an existing dwelling and associated structures on each lot, including a heritage listed dwelling house on 70 Jensen Road (listed as Item No. 1313 in Schedule 5 of the Central Coast Local Environmental Plan 2022). The Proposed Development seeks to retain the heritage listed dwelling on its own large lot maintaining its heritage value through physical separation of the item from new proposed surrounding residential uses. The Proposed Development is supported by a Heritage Impact Statement prepared by Edwards Heritage Consultants dated 17 May 2022 (Ex A, Tab 17) which satisfies the provisions of cl 5.10 of the Central Coast Local Environmental Plan 2022 (CCLEP).

18. The Site is located in the suburb of Wadalba and is mapped as part of the Johns Road, Wadalba Urban Release Area (WURA) on the CCLEP URA Map, referred to in Pt 6 of the CCLEP. The site locality comprises residential land within the WURA pursuant to CCLEP to the east, west and south including dwellings on former large rural lots.

19. The Site itself is mostly located within part of the R2 Low Density Residential zone and along the northern boundary is an area of C2 Environmental Conservation under the CCLEP. The C2 zone area is sometime called a “corridor” in the assessment materials and is consistent with the dark green vegetation corridor shown on the Indicative road layout and the structure plan below at Fig 4. I come back to the vegetation corridor below at [61].

20. The following description from p 6 of the BDAR (Ex H) is also helpful to understand the current condition of the Site:

“Historical imagery, dating back over 59 years …, indicates that the Study Area has been subject to historical clearing, with the majority of vegetation on site today a result of regrowth. The site currently contains native vegetation in various states from severely degraded to good condition, much of the site has been subject to previous pasture management including, mowing, ongoing grazing, weed control, and clearing works. Multiple dwellings have also been constructed across the site. Given the ongoing management and livestock on the land, these have limited the function of vegetation on site to provide habitat value for visiting fauna, reduced ecological connectivity to adjacent areas, and decreased the biodiversity value of the Subject Land.

Patches of remnant native woodland borders the Subject Land to the north and northwest, of which this vegetation forms part of a biodiversity corridor within C2 – Environmental Conservation zoned land (in addition to avoided R2 land). Notably, these areas are quite fragmented from larger patches of remnant vegetation within the surrounding area.”

21. A minimum lot size requirement of 450 m2 applies to the R2 Low Density Residential zoned portion of the Site and a minimum lot size requirement of 40 ha applies to the C2 Environmental Conservation zoned portion of the Site, pursuant to the Minimum Lot Size Map referred to in cl 4.1(2) of the CCLEP. (ASOFAC, par 25). The Proposed Development complies with the minimum residential lot size development standard and I set out below at [175] my reasons for finding that the proposed lot size for the Public Reserve Lot 150 at 17,607.02 m2 satisfies the terms of cl 4.1F(2) of the CCLEP.

The location of the Collector Road

22. The parties and their experts spent a lot of time dealing with the content and implications of Fig 3 in Chapter 5.9 of the CCDCP. The Fig is described as a pink and green and grey map and is labelled “Indicative road layout and the structure plan” (WSURA Indicative Road Layout and Structure Plan). This figure appears at the end of Section 5.9.2.3 titled “Open Space” and is referred to in Requirement (a) of that Section which reads as follows:

Local open space shall be provided generally in accordance with locations identified at Figure 3. Minor variations in the locations and configuration or open space, as a result of subdivision design may be acceptable, subject to justification for the proposed change.

23. Immediately after Fig 3 comes Section 5.9.2.4 titled “Road Layout and Hierarchy” which does not contain a similar reference to Fig 3 regarding any allowance of minor variations as for local open space.

24. The evidence in these proceedings refers to the Collector Road, which is understood and agreed to be the road marked in Fig 3 of Chapter 5.9 as the “future link” being a curved road in yellow and red running in a north-south direction between Jensen Road and Johns Road. The Respondent explains in opening that there are “three useful terms for a road generally along that alignment” being as follows:

25. Road number 1;

26. the Collector Road; and

27. also pursuant to Fig 3 in Chapter 5.9 of the DCP, future link. (Transcript 26 August 2025, p 6 at 50).

28. I note that the Applicant’s drawings refer to Road 1 (see Fig 2 above) and that the various experts interchangeably refer to Road 1 and the Collector Road and I accept that at all times they are referring to the ‘future link’ or the relevant portion of the ‘future link’ as marked in Fig 3 Indicative road layout and structure plan in Chapter 5.9 of the CCDCP reproduced below at Fig 4. I also accept that the reference to Road 05 in the ASOFAC is to what is now Road 1, being the Collector Road.

Fig 4: CCDCP Ch 5.9 Fig 3 Indicative road layout and structure plan

26. The Applicant explains, in relation to stage 1 of the Proposed Development, that the point of connection for Road 1 to the eastern adjoining land (Lot 1 DP 119542) at 90 Jensen Road:

“has been designed to be consistent with road layouts promoted by Council’s strategic and current planning controls. A connection in a different location would “have broader implications for the [WSURA]”: see JER Traffic, Ex 3 at [96]. Any earlier termination of that road, within the Site, would involve a “redistribution of traffic on to the external road network”: Ex 3 at [98]. There is no updated traffic modelling or transport assessment that would support that change: Ex 3 at [100]. [103].” (AWS at par 6(1)).

27. I go further and say that there is no additional reliable evidence to assist the Court regarding traffic modelling or transport assessment that would support a conclusion to change the location of the Collector Road.

28. The location of the Collector Road is a key issue in these proceedings and the implications of its location traverse planning and ecology. The Respondent relies on the evidence of Dr McLean who attempts to mark up an alternate route for the Collector Road in the JER Ecology, Ex 5 at par 203 (see below at Fig 5). The Respondent’s opening position advanced in this case, is articulated as follows with emphasis added:

“in particular reliance upon the opinion of Dr McLean, council's expert ecologist, [council’s position] is that there would be a better ecological outcome for this site, and there would be further steps taken towards the statutory objective of avoiding and minimising adverse impact on biodiversity values on this site if the collector road was not developed on this site, 60‑70 Jensen Road, as a through road, but as a cul‑de‑sac form, for example, or a road allowing the retention of further vegetation generally in the northern part of the site.

That's something that Dr McLean opines on in the joint expert report, […]. So based on that evidence, in particular the ecological evidence, council's position is that notwithstanding that ch 5.9 figure 3 in particular sets out this indicative road layout and structure plan, the DCP's not intended to be prescriptive in terms of the location of that road on this subject property. In particular, one of the overriding objectives of the whole ch 5.9, Commissioner, if you go back to p 1, looking at the last bullet point in cl 5.9.1.1 is "To protect and enhance significant environmental features of the area".

So council says that, as is usual in documents such as this dealing with urban release areas, although there's a figure setting out an indicative road layout, the objectives of this chapter of the DCP itself make it clear that, based on a site by site assessment of the particular ecological and other impacts applying for a particular lot being subdivided within an urban release area, that indicative layout does not need to be slavishly adhered to. The other indication of this is on p 5, indeed in the section Road Layout and Hierarchy, 5.9.2.4. The third bullet point, the objectives of even the Road Layout and Hierarchy section, the third headline objective is "To protect conservation areas through appropriate location of roads, paths and developable area".

So council's position advanced in this case is that it's certainly not inconsistent with the DCP, and indeed invited by the objectives I've just taken you to, Commissioner, that there be consideration as to whether road number 1 should be a through link as indicated indicatively in figure 3 of ch 5.9 of the DCP, or whether some variation to that arrangement is appropriate, having regards to the constraints of this particular site, and the particular ecological and other evidence applying to this site.” (Transcript 26 August 2025, p 7-8)

29. In closing, the Respondent returns to the relevance or weight to be given to the Indicative road layout and structure plan (Fig 3, Chapter 5.9 CCDCP) and submits at par 9 of the RWS as follows:

“The Applicant places Chapter 5.9 of the DCP at the forefront of AOS. It is important to note that the indicative road layout and structure plan at Fig 3 at 5.9.2.4 is not accompanied by any control or objective requiring the Collector Road to be located as shown in that indicative plan. Further, it is important to note that the objective of clause 5.9.2.4 to “protect conservation areas through the appropriate location of roads, paths and developable areas”. Similarly, a relevant objective of the entire Chapter 5.9 is “[t]o protect and enhance significant environmental features of the area.” The DCP invites and provides for flexibility in the location of the road network on the site, and a better designed proposal would take advantage of this where the ecological evidence suggests that this would achieve additional minimisation and avoidance and a beneficial ecological outcome.”

30. I have already identified above that Fig 3 appears within and part of Section 5.9.2.3 of the CCDCP and that within that section there is a control which expressly refers to Fig 3 and allows for minor variations of local open space (quoted above at [22]). I agree that there is no similar control regarding any variation of the road layout as indicated in Fig 3 however, on the contrary, in Section 5.9.2.4 titled “Road Layout and Hierarchy” there is an express control requiring the provision of “roads at the perimeter of all wildlife corridors to provide adequate urban interface with these areas”. Subject to any application of s 4.15(3A) of the EPA Act, I reach the opposite conclusion to the Respondent and reject the Respondent’s submission which seems to misinterpret Fig 3 in relation to the location of the Collector Road. My conclusion is also supported by the evidence of the experts in response to the contentions.

31. The location of the Collector Road is expressly raised in the contentions in the ASOFAC: contention 1(j) avoiding and minimising impacts on biodiversity and 2(b) management of edge effects which I address in turn below as follows:

32. Contention 1(j): Failure to avoid and minimise impacts on biodiversity:

“The proposed location of the collector road minimises the possibility of avoiding additional habitat to the south. The BDAR does not consider alternate road layouts, including abandoning the collector road to instead explore east-west connections. Maintaining the collector road in the current position results in a reduced ability to avoid habitat on the adjacent lot (90 Jensen Road) due to fixed road geometry.”

2. Contention 2: Management of Edge Effects at (a) repeats Contention 3(d) “The proposal is inconsistent with Section 2.4.3.6c and d regarding the orientation of lots.” And at 2(b) relevantly provides

“The proposed collector road (Road 05) traverses the eastern portion of the site containing native vegetation that is of high biodiversity value. Future extension of the proposed collector road will also impact native vegetation on adjacent land (including 90 Jensen Road to the east of the site). Positioning the Collector Road in this location despite knowledge of the biodiversity values contained within 90 Jensen Road will make future development of 90 Jensen Road difficult if biodiversity impacts from the collector road are determined to be unacceptable.”

32. I note that the expert ecologists did not address Contention 2, although they did address edge effects as raised in the particulars of Contentions 1 and the unnumbered contention and also in the context of consideration of minimisation of biodiversity impacts. The expert ecologists do agree on p 3 of JER Ecology (Ex 5) that:

“the current location of the Collector Road (both within and is within an area of Spotted Gum forest which will be cleared. The current location of the Collector Road limits any further avoidance as it would result in a small fragment to the south, which is subject to edge effects that are amplified by the road. IB says that the Collector Road is required for orderly development, but CM says that alternate layouts should be contemplated and he has not seen this done for this particular site.”

33. Th expert ecologists agree in relation to Contention 1(j), at pars 165 to 167 of JER Ecology that:

“165. The position of the collector road identified in Council’s DCP chapter will result in extensive clearing of native vegetation, much of which is included on the Swift Parrot Important Habitat Map.

166. The position of the Collector Road as currently proposed limits the ability to retain additional Swift Parrot and Squirrel Glider habitat, as any additional habitat that is retained would be located on the southern side of the Collector Road and occur as a small fragment.

167. The issue of avoidance relates to if the Collector Road in its current location is deemed necessary, as agreed by the town planning and traffic experts. If the location of the road cannot be moved, additional feasible alternatives for avoidance of biodiversity impacts cannot occur. We defer to the other disciplines to consider the Collector Road location.” [emphasis added]

34. Dr McLean confirms this position at par 199 of the JER Ecology:

“The issue of avoidance relates to if the Collector Road in its current location is deemed necessary, as agreed by the town planning and traffic experts. If the location of the road cannot be moved, additional feasible alternatives for avoidance of biodiversity impacts cannot occur. I defer to the other disciplines to consider the Collector Road location.” [emphasis added]

35. In cross examination Mr Benson confirmed his understanding and his expert opinion as follows:

“Within the context of this development, my understanding was that the collector road was a fixed point. So, for example, not developing lots south of the collector road, and retaining vegetation there, would be a poor ecological outcome in terms of fauna seeking to cross that collector road, for example, and also in terms of area‑to‑edge ratio of a patch cut by the collector road.” (Transcript 27 August 2025, p 110 at par 29)

36. Notwithstanding the agreement between the expert ecologists to defer to the other disciplines to consider the Collector Road location Dr McLean’s evidence includes a marked up alternate location for the future link at p 48 of the JER Ecology and I reproduce below his suggested alternate route below at Fig 5:

Fig 5: marked up alternate location for the future link by Mr McLean, JER Ecology p 48 (Ex 5)

37. Dr McLean explains at par 204 of JER Ecology that:

“The above proposal would require the deletion of lots 121, 310-306 and the reconfiguration of lots 119 and 120 to be accessed from south of the proposed access road. The removal of the collector road, its replacement with an east-west connection and the deletion of six lots would result in an additional ~ 0.6 ha of forested vegetation to be avoided, which would allow for greater impact mitigation, although may not adequately avoid a Serious and Irreversible Impact on the Swift Parrot and Squirrel Glider.”

38. Mr Benson identifies at par 44 of the JER Ecology that:

“The DCP provides various controls to guide the preparation of proposals to develop land within the Wadalba precinct. In particular, this includes the structure plan which defines the collector road location and broader vegetated corridors consistent with current zoning of the land.”

And at 183:

“Clearing of native vegetation is not limited to the Collector Road. The contemporary rezoning, which was undertaken at a time when there was a mature understanding of the biodiversity values within the locality for the URA which has determined that the land as a whole is suitable for residential development.”

39. Contrary to the control in Section 5.9.2.4(i) of the CCDCP requiring roads at the perimeter of all wildlife corridors, Dr McLean at 75 JER Ecology states:

“Gliders occupying low edge contrast habitats adjacent to residential areas and minor roads (capturing urban streets with no or minimal through traffic), and containing abundant tree nest hollows, had low-moderate hair cortisol levels. These results reinforce the need to consider the Collector Road as a minimisation strategy if it is not required for traffic purposes and to instead direct traffic away from bushland edges.”

40. Dr McLean goes further at par 77 JER Ecology regarding light spill effect and the acknowledgment in the BDAR that light spill needs to be mitigated. Dr McLean’s concern firstly, is that the BDAR only appears to consider public lighting and says that this is particularly “important on habitat adjacent to the Collector Road, where it is expected to support higher traffic volumes and thus greater light spill effects from vehicles” and he considers that “the BDAR contains inadequate consideration of edge effects on the Squirrel Glider and it is unclear if the measures recommended in the BDAR and by Dr van der Ree will be effective at minimising edge effects on this species.” (JER Ecology, par 78)

41. I am satisfied that Dr McLean’s light spill concerns have since been addressed in the BDAR (Ex H) at p 109 and also in the agreed draft/proposed conditions (Ex Q).

42. Relevantly, Dr McLean at 195 JER Ecology criticises the CCDCP and states as follows:

“Discussing with Mr McDonald, Council’s internal traffic engineer, they consider that a collector road is not essential and this will be explored further in the traffic JER. The collector road following the broad position identified in Council’s DCP does not consider avoidance and minimisation of impacts, instead it considers that the impact must occur and offers no creativity or flexibility around alternate approaches.”

43. I have considered carefully this issue of the Collector Road location in the CCDCP and what Mr Benson referred to at 183 of JER Ecology as the maturity of understanding of the biodiversity values when the strategic decision was made to locate the Collector Road in accordance with Fig 3 of Chapter 5.9 of the CCDCP and the rezoning of the land generally. I do not accept Dr McLean’s view that avoidance and minimisation have not been considered in the CCDCP for two reasons. The first reason relates to Dr McLean’s earlier role and involvement with the strategic planning of the urban release area and the second reason is the design of the subdivision including the larger Public Reserve Lot 150 together with the Biodiversity Management Plan (BMP) listed at [189]. I will come back to the BMP when I deal with ecology.

44. In relation to Dr McLean’s earlier role, during cross examination Dr McLean explained that during his employment from 2019 to 2024 with the Respondent he was the Principal Strategic Environment Planner and Principal Ecologist. He explained that in that role he assisted the Respondent in the preparation of its planning instruments including the CCDCP. Dr McLean explained that although the CCDCP is dated 2022, no new material was created because it was a ‘harmonisation between the Wyong and Gosford DCPs’, he nevertheless advised the council at that time ‘that the position of the Collector Road shown in that DCP should be removed or abandoned’. (Transcript 27 August 2025, p 76 at par 5). Specifically, during the exhibition of the planning proposal for the Wadalba East area Dr McLean said that “there were submissions that the team that I was leading put towards the team that was another part of strategic planning that was leading this, and there were concerns around biodiversity impacts” however the Indicative road layout and structure plan (Fig 3 of Chapter 5.9, CCDCP) was not altered. “A site-specific DCP was suggested by myself and members of my team, but a lot of that was not endorsed.” (Transcript 27 August 2025, p 76 at par 22). This evidence therefore does not support, in fact it contradicts Dr McLean’s earlier statement that the “broad position identified in Council’s DCP does not consider avoidance and minimisation of impacts”.

45. Another reason for reaching this conclusion is that the same CCDCP provides controls in Chapter 5.9 at Section 5.9.2.7 titled “Ecological Issues” and the Applicant submits that these express controls applying to the C2 zoned land are “in order to enhance connectivity of its corridors for the Squirrel Glider” (AWS at par 12).

46. Therefore, in relation to the location of the Collector Road I prefer the evidence of Mr Benson and find that the Fig 3 Indicative road layout and structure plan in Chapter 5.9 of the CCDCP was the result of a mature understanding of the biodiversity values and that the Respondent, with the benefit of advice from Dr McLean and his team, nevertheless deemed the location to be ecologically appropriate.

47. I now turn to the evidence of the other expert disciplines regarding the location of the Collector Road.

48. As foreshadowed by Dr McLean, the expert traffic engineers provide commentary at pars 94 to 103 of the JER Traffic (Ex 3) on Dr McLean’s potential amendment to the road layout as depicted above at Fig 5. The traffic engineers explain that they understand that this proposed amendment “includes the termination of the Collector Road (proposed Road 01) near proposed Lot 134, which would require reconfiguration of other proposed lots and proposed roads in the vicinity of proposed Lot 134.” The expert traffic engineers understand the reason this amendment has been suggested by Council’s ecology expert is to preserve the ecologically sensitive corridor that exists along the northern end of the subject site, and which extends further to the east and west and they agree at par 96 that:

“the termination of the collector road (as to not connect to the north-east as envisaged under the Central Coast DCP 2022, Part 5, Chapter 5.9-Wadalba South Urban Release Area) would have broader implications for the Wadalba South Urban Release Area, noting that the collector road was envisaged as a north-south transport corridor to link with the Wadalba commercial precinct to the north, and noting that the collector road was envisaged to link with and traverse through neighbouring subdivisions at 90 Jensen Road (site 1) and 12 Durian Street and 120 Jensen Road (site 2) to the east and north-east respectively.”

49. The Applicant objected to the evidence at par 103 of the JER Traffic, where Mr Corbett sets out as follows:

“103. Council has not provided PC with any updated traffic modelling or transport assessment report documenting the impact of the termination of the collector road as per the above discussion. Council has however advised PC as follows:

• It would be an acceptable outcome for the collector road to be terminated within the subject site and not connect to the north-east as envisaged under the Central Coast DCP 2022, to preserve the ecologically sensitive corridor.

• There will be no significant impacts as a result of the collector road being terminated, as traffic distribution will be similar onto the adjoining network.

• The deletion of the collector road will assign more traffic to the Jenson Road / Pollock Avenue intersection and the Johns Road / Pollock Avenue intersection, however there are upgrades planned for these intersections.

• The current geometry and traffic controls at the existing Johns Road / Pollock Avenue is poor and will require significant upgrade works, while not interfering with the operation of the existing roundabout at the Pacific Highway / Johns Road intersection. This intersection will be upgraded to traffic signals in the future, however there is no commitment from TfNSW on the timing of these works.”

50. I allowed the evidence above noting that it would not have much weight given to it. The Respondent also did not heavily rely on this evidence (Transcript 26 August 2025, p 8). I prefer the evidence of Mr Fonken for the reasons he gives at pars 100 to 102 of the JER Traffic, namely that:

51. Any adjustment to the masterplan (such as termination of the north-south Collector Road connection) would have traffic impacts on a wider area than this subject DA site;

52. he does not have access to any updated traffic modelling or transport assessment documenting the impact of the termination of the Collector Road; and

53. in relation to the information which Council advised PC in paragraph 103 reproduced above, his view is as follows:

54. Council cannot know whether the termination of the Collector Road would be an acceptable outcome unless it understands its traffic impacts to the surrounding area.

55. Council cannot know whether the impacts will be significant without an updated masterplan and traffic modelling.

56. I reject Dr McLean’s proposed road layout change because I am not satisfied that it has been assessed in any substantial sense by traffic experts to any degree that would provide assistance to the Court to understand the traffic impacts: s 4.15(1)(b) EPA Act.

57. The Planning experts note that the whole of Contention 1 has been allocated to be addressed by the ecology experts and at par 8 JER Planning (Ex 4) the planning experts state:

“We also note that the extent, location and design of the collector road extending roughly south-west – north-east through the site will be a matter for consideration by both the Ecology and Traffic Engineering experts.”

53. However, at par 9 of JER Planning, Mr Smith gives the following evidence which is not further commented on or responded to by Mr McDonald:

“The positioning of the Collector Road has been static throughout the rezoning of the Wadalba South Urban Release Area ( Item 3.2 to Ordinary Meeting held 28 August 2013, Item 2.1 to Ordinary Meeting held 23 September 2015, Item 2.1 to Ordinary Meeting held 28 September 2020, Item 2.8 to Ordinary Meeting held 22 March 2022 and is identified within Figure 3 of Central Coast Development Control Plan 2022, Chapter 5.9 Wadalba South Urban Release Area, Warnervale District Development Contributions Plan, 2021 and Greater Warnervale Structure Plan 2024. Figure 3 of Ch. 5.9 identifies a number of vegetation corridors through the Wadalba South URA. Road 01 does not cross a key east-west vegetated corridor. The crossing of this vegetated corridor occurs within adjacent land at 90-100 Jensen Road.”

54. I also note that the Planning experts provide the following agreed evidence which relies on compliance with the layout of Fig 3 of Chapter 5.9:

“42. With regard to 7(a) (ii) we agree that public open space is planned to be delivered elsewhere on other land within the Wadalba South Urban Release Area and shown as “local park area” on Figure 2 and “proposed playing fields” in Figure 3 of Chapter 5.9 of CCDCP. Public open space in form of a local park or playing field(s) is not required on the site.

43. We also note that control 5.9.2.3(a) requires that “Local open space shall be provided generally in accordance with locations identified in Figure 3. Minor variations in the location and configuration of open space, as a result of subdivision design may be accepted, subject to justification for the proposed change.” We are of the opinion that public open space will be delivered over time, generally in accordance with Figures 2 and 3 of Chapter 5.9 of CCDCP, and upon that delivery, future residents on the subject land will be able to access that open space, consistent with the intent of the DCP requirements.”

55. I am not satisfied that Dr McLean’s proposed changed location of the Collector Road has been assessed in any way by the Town Planning Experts. In fact, to the contrary, their evidence relies on the general layout of Fig 3 being complied with.

56. The Applicant submits in closing that the Respondent “opened on the idea that this is all very indicative. That is simply not so.” I find that the Court should give weight to the history of strategic planning regarding the WSURA as set out and depicted in Chapter 5.9 of the CCDCP including Fig 2 and Fig 3. The location of the Collector Road is a strategic location determined by the Respondent after consultation with various disciplines including ecologists such as Dr McLean. There is not sufficient evidence to assist the Court to form any conclusion that the location of that road should be changed. Accordingly, I will now deal with the remaining contested evidence within the context of my finding that the location of the Collector Road is appropriate.

57. I will now deal with the ecology contentions and then follow with the planning contentions giving my reasons why I conclude that consent can be granted to the Proposed Development subject to conditions.

Ecology (Contentions 1, and unnumbered): Biodiversity assessment

58. The Respondent identifies the ecological issues to be the core issues in these proceedings because they compel refusal of the development application if the evidence of Dr McLean is accepted in relation to the SAII issue in relation to either the Squirrel Glider or the Swift Parrot, as a matter of law, pursuant to s 7.16(2) of the BC Act (Transcript 28 August 2025, p 202 at para 9). In the alternative, the Respondent submits that “the impact on the Swift Parrot and Squirrel Glider habitat in particular and the precautionary principle would persuade the Court in its discretion pursuant to s 7.13 of the BC Act and s 4.15 of the EPA Act to refuse consent to this DA.” (RWS at par 150). The Respondent contends that the Development Application “does not demonstrate that sufficient steps have been taken to avoid and minimise the biodiversity impacts of the proposal, in accordance with the requirements pursuant to s 6.4 of the BC Act. Section 7.13(6)(a) of the BC Act gives the consent authority the power to refuse to grant consent if the measures taken to avoid and minimise impacts on biodiversity values are not sufficient.” (Contention 1, ASOFAC).

59. I deal first with the satisfaction of the jurisdictional prerequisite terms of s 7.16 of the BC Act and will return to the discretionary precautionary principle below at [126].

60. The majority of the Site is occupied by native vegetation (ASOFAC, para 9). Land containing high biodiversity value (as shown on the Biodiversity Values Map referred to in cl 7.3(2) of the Biodiversity Conservation Regulation 2017 adjoins the site to the north, east and west. An extract of the Biodiversity Values Map identifying the areas of high biodiversity value within the Site is provided in Fig 7 of the ASOFAC and reproduced below at Fig 6:

Fig 6: Extract from ASOFAC of the Biodiversity Values Map referred to in cl 7.3 of the BC Regulation (Ex 1, p 9)

61. A corridor of land within the C2 Environmental Conservation zone (identified as the east-west wildlife corridor in Chapter 5.9 of the CCDCP) bisects the centre of the Johns Road, WURA. A section of the east-west wildlife corridor occupies the northern portion of the site. The northern boundary adjoins remnant bushland in Lot 44 DP 1207188 within the C2 Environmental Conservation and R2 Low Density Residential zone (ASOFAC, pars 15 to 18). This corridor is readily identifiable labelled in the legend as “vegetation” in dark green in Fig 3 of Chapter 5.9, reproduced above at Fig 4.

Assessment of SAII – jurisdictional contention

62. The application for development is accompanied by the BDAR (Ex H) as required by s 7.7(2) of the BC Act, because the Proposed Development is likely to significantly affect the relevant threatened species by meeting the first of the three criteria in s 7.2(1) of the BC Act, namely that it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in s 7.3 of the BC Act.

63. I reproduce s 7.16 of the BC Act in full below as follows:

7.16 Proposed development or activity that has serious and irreversible impacts on biodiversity values

(1) In this section, serious and irreversible impacts on biodiversity values of proposed development or activity means serious and irreversible impacts on biodiversity values as determined under section 6.5 that would remain after the measures proposed to be taken to avoid or minimise the impact on biodiversity values of the proposed development or activity.

(2) The consent authority must refuse to grant consent under the Environmental Planning and Assessment Act 1979, Part 4 for an application for development consent to which this division applies if, in the consent authority’s opinion, the proposed development is likely to have serious and irreversible impacts on biodiversity values.

(2A) However, subsection (2) does not apply to the following applications—

(a) an application for State significant development, or

(b) an application that is exempt from the requirement to be accompanied by a biodiversity development assessment report by an order under section 7.7(3).

(3) If the relevant authority is of the opinion that proposed State significant development or State significant infrastructure that is the subject of an application to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the relevant authority—

(a) is required to take those impacts into consideration, and

(b) is required to determine whether there are any additional and appropriate measures that will minimise those impacts if consent or approval is to be granted.

(4) If the determining authority is of the opinion that the proposed activity to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the determining authority—

(a) is required to take those impacts into consideration, and

(b) is required to determine whether there are any additional and appropriate measures that will minimise those impacts if the activity is to be carried out or approved.

64. The 5 steps identified by Preston CJ in Planners North v Ballina Shire Council (2021) 251 LGERA 309; [2021] NSWLEC 120 (Planners North) at [90] are relevant to the framework provided in Section 3 of the Departmental Guidance to assist a decision-maker to determine a serious and irreversible impact (Ex O). The 5 steps in the framework for decision making are as follows:

65. Step 1: Identify relevant entities at risk of a SAII;

66. Step 2: Evaluate the extinction risk of the entity to be impacted;

67. Step 3: Detail measures taken to avoid, minimise and mitigate impacts on the entity;

68. Step 4: Evaluate a serious and irreversible impact; and

69. Step 5: Decision-making.

70. I accept the Applicant’s submission that the Planners North 5 step analysis is about the approach taken to finding of an SAII. Preston CJ explains in Planners North at [110], [111], [157], [171] and [174] that:

“110 …Section 7.16(2) requires the consent authority to refuse consent if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values. In deciding whether or not it is of this opinion, the consent authority must determine the seriousness and irreversibility of the impacts on biodiversity values in accordance with s 7.16(1) and s 6.5 of the BC Act, the principles prescribed by cl 6.7 of the BC Regulation, and the Guidance document published by DPIE under s 6.5(2) of the BC Act. However, the consent authority, when determining in accordance with the EPA Act the development application, may also take into consideration the likely impact of the proposed development on biodiversity values as assessed in any BDAR that relates to and accompanies the development application and otherwise may further consider, under s 4.15(1)(b) of the EPA Act, the likely impact of the proposed development on biodiversity values, as required and permitted respectively by s 7.13(2) of the BC Act.

111 As a consequence, a consent authority might form the opinion, for the purposes of s 7.16(2) of the BC Act, that a proposed development is likely to have serious and irreversible impacts on biodiversity values not only by reason of the consideration required by s 7.16(1) and s 6.5 of the BC Act and the principles and guidance prescribed under s 6.5 of the BC Act, but also by reason of the consideration given under s 7.13(2) of the BC Act and s 4.15(1)(b) of the EPA Act.

[…]

157 The determination of serious and irreversible impacts on biodiversity values is to be undertaken under s 6.5 of the BC Act, which in turn requires the determination to be made in accordance with the principles prescribed by cl 6.7 of the BC Regulation and the Guidance document published by DPIE. These statutory provisions focus attention on the impacts of the development on any threatened species or endangered ecological community. Accordingly, the first step in the determination of whether the development is likely to have serious and irreversible impacts on biodiversity values is to identify any threatened species or endangered ecological communities that might be impacted by the development.

[…]

171 Having identified the endangered ecological communities and threatened species likely to be impacted by the development, the next step is to evaluate the likely significance of the impacts that would remain after the measures proposed to avoid or minimise the impact on these endangered ecological communities and threatened species have been taken: see s 7.16(1) of the BC Act.

[…]

174 … Serious and irreversible impacts on biodiversity values of a proposed development are the serious and irreversible impacts on biodiversity values that would remain after any proposed measures to avoid or minimise the impact on biodiversity values of the proposed development have been taken. The proposed development of land generates the impacts on biodiversity values. Measures are to be taken to avoid or minimise these impacts. The residual impacts that remain after taking the measures to avoid or mitigate the impacts of the proposed development are then to be assessed for their seriousness and irreversibility. …” [emphasis added]

66. I will now consider the ecological evidence relating to the Proposed Development and set out the SAII assessment for the Swift Parrot from [87] and then the Squirrel Glider from [116].

The expert ecological evidence

67. Mr Benson and Dr McLean gave expert evidence as ecologists. Their qualifications are as set out in their respective curriculum vitaes annexed to the JER Ecology (Ex 5).

68. Dr McLean confirmed in cross examination that since leaving his employment with the Respondent in 2024, his focus is on councils as a consultant in private practice and although he has reviewed a lot of biodiversity development assessment reports (BDARs), he has never prepared one and he is not accredited under the scheme to be able to prepare a BDAR. (Transcript 27 August 2025, p 77 at par 10). Dr McLean estimates that he has reviewed about 500 BDARs relating to “at least 150 sites that have BDARs prepared on them across NSW from Shoalhaven all the way to Tweed” (Transcript 27 August 2025, p 103 at par 7). I accept that Dr McLean is a pre-eminent scholar.

69. Mr Benson is the author of the BDAR (Ex H) and the BMP (Ex E, Tab 2). Mr Benson was cross examined on his experience and expertise (Transcript 27 August 2025, pp 124-126) and he agreed that:

70. He is not an academic and has published 2 papers;

71. He has prepared over 80 BDARs;

72. His undergraduate degree is in civil engineering; and

73. His post graduate qualification is as an ecologist and has been practising as such for close to 10 years.

74. In response to the question that on areas of reasonably contestable opinion, or on reasonably contestable ecological issues, it would be normal scientific practice for him to defer to Dr McLean’s expertise, in relation to the Squirrel Glider, Mr Benson said:

“Elements of it, but, within the context of an impact assessment of a single development or within an urban release area, I think I am suitably qualified to make that assessment.” (Transcript 27 August 2025, p 125)

71. The experts were cross examined on two topics being firstly the failure to avoid and minimise impacts and secondly the assessment of the serious and irreversible impact in relation to each the Squirrel Glider and the Swift Parrot.

72. Dr McLean is familiar with the Federal Government’s National Recovery Plan for the Swift Parrot 2024 (Swift Parrot National Recovery Plan) (Ex L) and does not disagree with the mapped indicative distribution of the Swift Parrot in Australia in Fig 1 on p 6 of that document. He explains that although the breeding range of the Swift Parrot is wholly located within Tasmania, the foraging range is as per the mapped indicative distribution and that “[f]rom time to time, there'll be outlier birds that turn up. For some years, the species doesn't arrive past about Sydney; other years, it'll go to Brisbane, thereabouts.” Transcript 27 August 2025, p 78 at par 36).

73. I have considered the Swift Parrot National Recovery Plan which provides that key foraging habitat areas extend for a very large geographical distribution along the East Coast of the mainland of Australia and in key considerations in assessing environmental impacts it provides:

“wherever possible, habitat critical to the survival of the swift parrot should not be destroyed. Actions that have indirect impacts on habitat critical to the survival should be minimised. … If removal of habitat critical to the survival cannot be avoided or mitigated then an offset should be provided.” (p15)

74. Dr Mclean says that he agrees with this principle “as long as there can be a net environmental gain from the offset.” (Transcript 27 August 2025, p 81 at par 1) Dr McLean observed that the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), which the Swift Parrot National Recovery Plan is written under, does not have any provisions for serious and irreversible impacts (Transcript 27 August 2025, p 80 at par 45). Dr McLean says that to the extent that the principle embodied in the policy is that, where habitat critical to survival cannot be avoided or mitigated, then, an offset should be provided, it is deficient unless it provides for an objective of a net biodiversity gain (Transcript 27 August 2025, p 81 at par 37 to 42).

75. In relation to surveys, the Swift Parrot National Recovery Plan provides at p 15:

“When considering habitat loss, alteration or degradation of habitat in any part of the swift parrot's range … surveys for occupancy at the appropriate times of year and identifying preferred foraging species remain an important tool in refining understanding of the area's relative importance for swift parrots".

76. This is relevant to particular (d) of unnumbered contention in the SOFAC which reads as follows: “Council’s Swift Parrot Multi Species Occupancy Model, using four years of survey data has identified the site as being important for the Swift Parrot.” The Applicant questioned Dr McLean on his reliance on probabilistic models rather than surveys. (Transcript 27 August 2025 from p 80) Although, I do note that it is not disputed that the Site is important for the Swift Parrot because the presence of the Squirrel Glider and Swift Parrot was assumed on the basis of records and habitat mapping: see p 22 BDAR (see also BioNet Species Sightings Within 1500 m considered in Fig 7 at p 37 BDAR). This is consistent with the biodiversity assessment method (BAM), prescribed by order of the Minister under s 6.7(1) of the BC Act, to require further consideration and supply of credits which will account for conservatism in the assessment process and the possibility of residual impacts. See also condition 2.6 (Ex Q).

77. The BDAR concludes and the Applicant accepts that the Proposed Development may have some impact on the habitat of the threatened species identified (Squirrel Glider and Swift Parrot) and the impacts prescribed under cl 6.1 of the BC Regulation are considered in the BDAR at Table 24, (Ex H, p 102) (AWS par 79).

78. Field surveys “in accordance with the BAM” were conducted from July 2024 to March 2025: BDAR p 22 and maps pp 23-28. The Applicant submits (AWS at par 76) that:

“No threatened species were identified from the totality of those efforts. That is, targeted field surveys for the Squirrel Glider and Swift Parrot, amongst many others, were conducted (see page 97) but not identified to be present. No contention is raised against a particular survey carried out or the overall design – according to any standard set by the BAM or underlying policies on survey technique and design.”

79. Dr McLean notes at par 150 of the JER Ecology:

“150. Despite the revised proposal including around an additional 1 ha of avoidance land over the previous development iteration, I consider that based on the proposed removal of 2.68 ha of forested vegetation, given the known importance of the area for the Squirrel Glider and Swift Parrot that additional avoidance is required.”

“156. It is unclear where displaced Swift Parrots may instead visit if the habitat is lost. The best approach is to not clear any further habitat within proximity of known use areas. The surveys completed on the Central Coast have shown that not all areas of mapped habitat appear to be regularly used, so I consider that habitat that has shown signs of use must have a higher level of protection than areas where the species has not been recorded.

157. In the absence of rigorous field survey across the WELOG area, it is unclear what level of tolerance occurs for continued use of the area. I consider that this can be weighted against potential habitat enhancement, although for any habitat enhancement there will be a lag time until the habitat enrichment is effective at mitigating Noisy Miner populations.

158. The precautionary principle must prevail, due to the rarity of the species (consisting of a few hundred birds), the burden of proof for allowing habitat removal must be higher. I say this as the risk of approving the development if the habitat is part of a core Swift Parrot overwinter home range is higher than if say, this was a species that had an Australian population of 10,000 individuals.”

80. I come back to the application of the precautionary principle below at [138].

81. The multi-species occupancy model (MSOM) referred to in the ASOFAC was developed by Dr McLean and he explains at pars 243-244 of JER Ecology as follows:

“243. A MSOM is a machine learning (ie artificial intelligence) computing approach where they combine survey data from multiple species at once to estimate both individual and community-level responses to environmental variables. Historically occupancy models have been done since the mid 1990s on an individual species basis, but the advent of MSOM allows for modelling of rare species together with the species guild (ie other species that share similar habitat or dietary preferences) or that have negative association (ie foxes with medium sized mammals). …

244. Due to the low level if incidences of Swift Parrot, the model also uses other species that have been demonstrated to show positive correlation to Swift Parrot, including Little Lorikeet and Musk Lorikeet. The model predicts correlates that are positively related to an increased chance of Swift Parrot occurring and those that are negatively related to an increased chance of Swift Parrot occurrence, referred to a predictors. …”

82. Dr McLean then describes the presence only model, referred to as Maxent Model at par 249 of JER Ecology, which

“used a technique called Maximum Entropy, which with colleagues Dr Matt Hingee and former staff member Ms Elise Verhoeven I have refined our skillset in over the past four years, producing models for a wide range of species, with Swift Parrot being one of the most recent. Maxent modelling a type of machine learning where the software predicts a pattern, in this case how likely particular habitat is suitable for the Swift Parrot and then it tests assumptions across several thousand iterations until a model that best fits the training data is produced.”

83. I accept the Respondent’s submission that although Dr McLean identifies that in his view, his modelling approach is superior to the NSW Government’s important habitat mapping approach: JER Ecology at par 254, ultimately, the reliance on the models by Dr McLean “only supports reliance on the important habitat map and the BioNet records themselves. They are all consistent and indicate that the site is important habitat for the Swift Parrot: [258] JER” (RWS, par 102). Mr Benson agrees that survey data as well as habitat assessment is important but “as per the Biodiversity Assessment Method under the BC Act, the guiding principles are listed within the Threatened Biodiversity Data Collection. For the Swift Parrot the TBDC confirms that “No survey required. The species is assessed for species credits via the Important Habitat Map in BOAMS*”.* (JER Ecology at par 261). Accordingly, I do not give any additional weight to the particular (d) of unnumbered contention in the SOFAC because it does not add anything to the agreed statutory status of the habitat.

84. The Contention 1 of the ASOFAC, titled “Failure to avoid and minimise impacts on biodiversity” deals with the requirement to demonstrate that sufficient steps have been taken to avoid and minimise the biodiversity impact of the Proposed Development pursuant to s 6.4 of the BC Act and relies on the terms of s 7.13(6)(a) of the BC Act that “gives the consent authority the power to refuse to grant consent if the measures taken to avoid and minimise impacts on biodiversity values are not sufficient.”

85. To address this contention, it is necessary to evaluate the likely impact of the Proposed Development on biodiversity values, being those values assessed in the BDAR that relates to the development application: 7.13(2), BC Act.

86. I will now deal with the SAII evaluation for the Swift Parrot followed by the Squirrel Glider.

Evaluation of SAII for the Swift parrot: What are the Avoidance or minimisation measures? Step 3: Efforts to avoid and minimise impacts on biodiversity values:

87. Having identified the Swift Parrot as a threatened species, the next step is to evaluate the likely significance of the impacts that would remain after the measures proposed to avoid or minimise the impact on the Swift Parrot have been taken followed by the assessment of the seriousness and irreversibility of the residual impacts that remain after taking the measures to avoid or mitigate the impacts of the proposed development: Pla**nners North from [171]

88. Contention 1(i) of the ASOFAC provides:

“(i) Additional Swift Parrot foraging habitat is required to be avoided, to maximise the use suitability of the avoided habitat for the species and minimise edge effects.”

89. Unnumbered Contention particular (h) similarly provides that:

“The proposal does not adequately avoid and minimise impacts to mapped important habitat for the Swift Parrot. The proposed subdivision would require clearing of at least 2.14 ha of mapped important habitat for the species.”

90. Mr Benson explains that the efforts to avoid and minimise the impacts of the Proposed Development on the Swift Parrot and the Squirrel Glider are evident from the iterative design process to strategically locate the development to avoid potential impact on higher-value habitats (pp 103-104 BDAR), consistent with 7.1.1 of the BAM. See also JER Ecology at par 17 where Dr McLean agrees that the development has undergone an iterative process.

91. In relation to the foraging habitat for the Swift Parrot, Mr Benson concedes in cross examination that the subdivision development will have a negative impact as it presently exists on the Site (Transcript 27 August 2025, p 112 at par 16)

92. Firstly, in relation to avoidance, at the outset, I accept the Respondent’s submission that the portion of Lot 150 Public Reserve that is within the C2 Environmental Conservation zone cannot be taken into account as avoidance of the impact of the Proposed Development because development cannot be carried out on that portion in any event: Planners North at [173]. (RWS, par 42). In that regard, I have referred to Table 33 of the BDAR which provides as follows:

“The total Study Area (both lots) comprise approx. 3.9ha of Swift Parrot Important Habitat Areas (SPIA). The proposal will impact approx. 2.29ha of this. … The SPIA within the designated avoidance within the BMP land comprises 0.51ha of that on C2-zoned lands, and the remaining 1.06ha iz zoned as R2, totalling 1.61 ha of avoided SPIA mapping. It is noted that while C2 zoned lands have been excluded from the calculation of avoidance, the development will enable the protection and improvement of the BMP lands. Without the proposed BMP, the C2 lands would otherwise continue to be subject to ongoing public trespass, dumping, grazing and impacts. As such, AEP believes there is merit for the consideration of site-wide avoidance which is at 42%, compared to a 33% avoidance excluding the C2 lands.”

93. I come back to the concept of improvement of the land at [104].

94. Unlike Planners North, the Proposed Development avoids the portion of the Lot 150 Public Reserve (or BMP land) that is within the R2 Low Density Residential zone land, being 33% of the SPIA: Table 33 BDAR (Ex H). In addition, the Proposed Development proposes to manage the whole of Lot 150, including the portion within the C2 Environmental Management zone, in accordance with the BMP.

95. In relation to minimising the impact of the Proposed Development, it is not disputed the BMP identifies areas within the BMP lands, including within the C2 Environmental Management zone, to be severely degraded and that in response to the varying quality of existing vegetation, the Proposed Development minimises impacts by adopting a bespoke vegetation management plan implementing Natural Regeneration, Facilitated Regeneration and Reconstruction: (Fig 3, BMP, Ex E, Tab 2)

96. I have undertaken the analysis set out in Planners North from [185] and in accordance with the principles prescribed by cl 6.7(2) of the BC Regulation, assisted by the Guidance Document (Ex O, p 10) published by the DPIE. Clause 6.7(2) of the BC Regulation provides four principles as follows:

An impact is to be regarded as serious and irreversible if it is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct because—

(a) it will cause a further decline of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to be in a rapid rate of decline, or

(b) it will further reduce the population size of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very small population size, or

(c) it is an impact on the habitat of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very limited geographic distribution, or

(d) the impacted species or ecological community is unlikely to respond to measures to improve its habitat and vegetation integrity and therefore its members are not replaceable.

97. It is not disputed that the Swift Parrot has been in rapid rate of decline and that relatively speaking the species consists of a very small population (principles 1 and 2). The experts were unable to agree on the actual estimated numbers of the species and a question for consideration by the Court is whether the impacts of the Proposed Development will result in further decline or reduce the population size of the Swift Parrot. It is agreed that any impact of the Proposed Development on the Swift Parrit is on the foraging habitat not the breeding habitat, so I turn to principle 3 to assist with answering principles 1 and 2.

98. The agreed evidence is that although the Swift Parrot only breeds in Tasmania, the geographic distribution of its foraging habitat is extensive as shown in the indicative map of the National Recovery Plan (Principle 3).

99. Principle 4 begs the question of whether the Swift Parrot is likely to respond to measures to improve their foraging habitat and vegetation integrity. I note that Dr McLean did not make any express reference in the JER Ecology to an analysis of principle 4 (s 6.7(2)(d) BC Regulation) and that he agrees that the Court is required to take principle 4 into account.

100. Dr McLean seems to explain that his concerns are grounded on uncertainty, or “insufficient knowledge as to how Swift Parrots may utilise local habitat and the importance of local habitat” and for that reason he does “not consider that an accurate SAII assessment can be made.” (JER Ecology at par 280).

101. Dr McLean agrees that his concern expressed in the JER Ecology at par 155 is with respect to tree species that would be for foraging purposes of the Swift Parrot. (Transcript 27 August 2025, p 96 at par 30) Dr McLean seems to reluctantly agree that the concessions he makes during cross examination, listed below, could be one way to address the uncertainty identified of what might be happening on this particular Site, and offsetting any particular impact of the Proposed Development from this particular Site (Transcript 27 August 2025, p 98 at par 24). This is relevant when considering the precautionary principle which I address elsewhere in this judgment at [126].

102. The concessions made by Dr McLean regarding the concern about tree species for foraging purposes of the Swift Parrot are as follows:

103. There are tree species that are suitable for foraging of the Swift Parrot located within the C2 corridor (Transcript 27 August 2025, p 96 at par 30);

104. Foraging tree species could be supplanted with additional planting in cleared areas and within areas managed by the Council in the area broader than Wadalba (Transcript 27 August 2025, p 96 at par 46 and p 97 at par 1); and

105. As a common owner of the C2 land (being the entire corridor within the WSURA) and potentially the conservation reserve like the one proposed, there are opportunities to manage and plant preferred foraging habitat of the Swift Parrot as a result of an express objective of requirement (b) of Section 5.9.2.7 of the CCDCP which provides as follows:

“All land zoned C2 in this locality must be retained in common ownership and subject to a permanent “in perpetuity” conservation arrangement. This may include a single development allotment, unless other arrangements are made.” (Transcript 27 August 2025, p 98 at par 9 and 17)

103. Conditions of consent (Ex Q) include at condition 1.1 the Letter of Offer to enter into a Voluntary Planning Agreement dated 3 June 2025 and prior to the release of a subdivision works certificate, a requirement to reach agreement via a VPA in relation to the dedication of land included on the BMP and the VPA must include completion of required works for a period of no less than 5 years or longer if regeneration targets are not reached and the stated purpose of the VPA is “to ensure the proper management of important Swift Parrot and Squirrel Glider habitat to allow for the persistence of these species in the Wadalba area.” (Condition 1.1(a), Ex Q) Condition 6.28(c) also requires the inclusion of the dedication of Proposed Lot 150 to Council and at no costs to Council on the Deposited Plan of subdivision.

104. Although I accept that avoidance is the first consideration and that removal of existing vegetation is not an improvement, I also accept that portions of the existing C2 land are not in ideal condition (as mapped in Fig 3 of the BMP) and I accept that the Proposed Development will improve the existing condition of the existing C2 zone land and will improve the avoided R2 zoned land within the Lot 150 proposed Public Reserve by added planting and other measures set out in the BMP, Ex E, Tab 2.

105. I find that the BMP is consistent with or rather addresses the concern expressed by Dr Ross Crates in his BDAR review annexed at Tab 8 of the JER Ecology (Ex 5). In relation to a nearby proposed development on 125-135 Johns Road Wadalba in 2020, Dr Crates states that “The Wadalba Wildlife Corridor and the VMP will not provide ‘future potential foraging’ because the corridor is already present, and the VMP focuses primarily on the understorey and is largely irrelevant for Swift Parrots.” Dr Crates also acknowledges that “given the highly mobile nature of Swift Parrots, risk of population or fragmentation is much less than it would be for many other threatened species” and “connectivity less of an issue for Swift Parrots than for many other threatened species.”

106. On the other hand, the BMP for the Proposed Development is relevant to the Swift Parrot because it:

107. addresses trees, shrubs and ground covers (Appendix A to BMP);

108. it includes a bespoke response to the existing conditions including facilitating regeneration and reconstruction of the BMP Land;

109. of the four preferred feed species, only Corymbia m**aculata, commonly known as spotted gum, was identified existing on the Site (BDAR, p 132) whereas the tree species listed for revegetation in the BMP include the spotted gum as well as another one of the four preferred feed species, Eucalyptus siderophloia, commonly known as the northern grey ironbark; and

110. the BDAR expressly states at p 132

“It is noted that, while future development of the Wadalba Urban Release Area may reduce the amount of locally available Swift Parrot foraging habitat, this development has taken the following steps to mitigate impacts to Swift Parrot:

1. Increase of area of SPIA avoidance to 1.61 ha, including both the established wildlife corridor zoned C2 and developable R2 land.
2. The BMP will be managed to improve biodiversity value, mitigate edge effects, and reduce Noisy Miner incursion.

…

Taking into account the extent of habitat removal, the retention and management measures proposed and the broader habitat context, it is considered unlikely that the development will result in Serious and Irreversible Impacts (SAII) to Swift Parrot”

107. I find that the evidence supports a conclusion that the consideration of Principle 4 for the Swift Parrot results in an answer in the negative to the proposition that the Swift Parrot is “unlikely to respond to measures to improve its habitat and vegetation integrity and therefore its members are not replaceable.”

108. The Proposed Development, by increasing the size of Lot 150 and expanding into the R2 zone, provides land which avoids impacts, the sensitive road design attempts to minimise impacts and the BMP also minimises and mitigates the impacts of the Proposed Development on the Site. Although I find that the Proposed Development will reduce the foraging area of the Swift Parrot, such impacts may not exacerbate the current threats to the species. By reference to three of the principles in cl 6.7(2) of the BC Regulation, I am satisfied that the impacts of the Proposed Development on the Swift Parrot’s foraging habitat on the Site are not to be regarded as serious and irreversible.

Evaluation of SAII for the Squirrel Glider: What are the Avoidance or minimisation measures? Step 3: Efforts to avoid and minimise impacts on biodiversity values

109. The BDAR includes at p 123, an assessment for the Squirrel Glider notwithstanding that it is not a candidate SAII species. Having identified the threatened species, the Squirrel Glider, the next step is to evaluate the likely significance of the impacts that would remain after the measures proposed to avoid or minimise the impact on the Swift Parrot have been taken followed by the assessment of the seriousness and irreversibility of the residual impacts that remain after taking the measures to avoid or mitigate the impacts of the proposed development: Pla**nners North from [171].

110. The BDAR SAII assessment for the Squirrel Glider is what Mr Benson describes as “the first part of the assessment to determine whether the species meets any of the four principles” (Transcript 27 August 2025, p 117 at par 48).

111. I have undertaken the analysis set out in Planners North from [185] and the principles prescribed by cl 6.7 of the BC Regulation, assisted by the Guidance Document published by the DPIE for the Squirrel Glider.

112. Dr McLean’s opinion is that:

“there has been insufficient avoidance of impacts to the Squirrel Glider, in that the proposal will result in the fragmentation of habitat to the west, potentially impacting resident individuals offsite. In addition, there is insufficient avoidance on the site where it is unlikely that a resident population will be able to persist within retained habitat.”: JER Ecology at par 123.

113. Mr Benson describes the current connectivity for the Squirrel Glider to the west of the Site as “extremely poor connectivity” and explains that there will be improvement as a result of the rehabilitation of the BMP lands as follows:

“Rehabilitating the BMP lands will provide, I thinks it’s in the order of 41 metres on our side of the fence, with a C2 corridor of 20 metres on the property to the north, providing a corridor of 60 metres.”

114. Mr Benson accurately notes that “What happens to the west of our site is beyond our control, but that is the constraint to connectivity at the moment, and we are not removing that connection as a result of this proposed development.” (Transcript 27 August 2025, p 113 at par 40).

115. Dr McLean agrees that the concern expressed at par 123 of the JER Ecology is a reference to the possibility of fragmentation of Squirrel Glider habitat to the west, that is, not on the Site, to resident individuals of the Squirrel Glider offsite. These two concerns are the potential impact offsite (Transcript 27 August 2025, p 96 at par 13).

116. The Applicant submits at par 12 of the AWS that the CCDCP “envisaged ecological outcomes for the C2 Environmental Conservation zoned land … with enhanced controls applying to the C2 zoned land in order to enhance the connectivity of its corridors for the Squirrel Glider”: CCDCP Section 5.9.2.7. The Applicant goes further to submit at par 13 of the AWS that:

“it was, in part, by achieving the envisaged retained vegetation corridor of the C2 zoned land that then allowed for the strategically desired residential development to occur on adjoining land. That development was to be designed to ensure no significant direct or indirect detrimental impact to that retained vegetation, being that within the C2 zoned “corridor”, and this was the desired means to bring about the strategic end of long-term conservation of the local Squirrel Glider population (section 5.9.2.7(c), CCDCP). Other vegetation was envisaged to be retained by the subdivision design – though expressly stated to be permissibly incorporated in road reserves, private or communal open spaces: section 5.9.2.7(f), CCDCP. The Application promotes a greater degree of dedicated land, rather than incorporating retained vegetation in reserves or private or communal open space, that will ensure such objectives are met.”

117. I find that connectivity for the Squirrel Glider is provided by the Proposed Development as avoidance and minimisation measures, as envisaged and in accordance with the ecological outcomes for the C2 Environmental Conservation zoned land.

118. In relation to the impact on the Squirrel Glider’s habitat, Mr Benson’s evidence identifies the existing hollow-bearing trees on the Site as having ‘suboptimal ecological values.’ Dr McLean, does not have any basis to disagree with that opinion in relation to those specific trees (Transcript 27 August 2025, p 92 at par 31).

119. In response to Contention 1(i) of the ASOFAC, regarding the Squirrel Glider Mr Benson said “I do not know what is meant by significant decline within the Wyong IBRA sub-region.”: JER Ecology at par 292. In cross examination he explains that his concern was in terms of quantification of “significant” but that in a qualitative sense he agreed (Transcript 27 August 2025, p 123 at par 40).

120. In addition to the avoidance or minimisation measures proposed by the Proposed Development referred to above in relation to the Swift Parrot, the Proposed Development seeks to improve the denning habitat of the Squirrel Glider over time. This is relevant to the consideration of Principle 4 for the Squirrel Glider and understanding what is proposed regarding the management nest boxes.

121. Mr Benson explains further in cross examination that the “improvement of denning and foraging habitat over time” is a reference firstly to denning habitat for the Squirrel Glider by:

122. the replacement of the 4 existing suboptimal hollow-bearing trees with 48 nest boxes and carved hollows in accordance with the Squirrel Glider Management Plan (BDAR, section 7.2.2.8); and

123. the planting of the shrub layer, which is currently absent (Transcript 27 August 2025, p 111 at par 45) and that elements of the Site will continue to degrade over time “which has been the case in that area for a long time” (Transcript 27 August 2025, p 112 at par 3).

124. Condition 2.12 of the Draft/Proposed Conditions of Consent (Ex Q) provides for the installation of no less than 48 nest boxes within the BMP lands at least 28 days prior to the commencement of any clearing. Condition 7.2 includes a requirement to include nest box/artificial hollow fauna occupation measured twice a year via a hole camera in the annual BMP implementation report. Condition 7.3 provides that the:

“Biodiversity Management Plan prepared under this consent must be implemented in perpetuity. The BMP area must be kept clear of refuse on a regular basis. Any nest box or artificial hollow that requires maintenance must be maintained or replaced on a regular basis.”

123. Dr McLean agrees that nest boxes, in conjunction with management and revegetation, under the supervision of suitably trained people, can mitigate the impact of the Proposed Development on the Squirrel Glider (Transcript 27 August 2025, p 93 at par 50)

124. In conclusion, I find that the Proposed Development by ensuring that the connectivity remains on Site for the Squirrel Glider by enhancing the C2 corridor, together with the installation of the nest boxes and artificial hollows, in conjunction with management and revegetation, under the supervision of suitably trained people, can mitigate the impact of the Proposed Development on the Squirrel Glider. I conclude that the impacts of the Proposed Development will not exacerbate the current threats to the Squirrel Glider. By reference to three of the principles in cl 6.7(2) of the BC Regulation, the impacts of the Proposed Development on the Squirrel Glider and their habitat on the Site are not to be regarded as serious and irreversible.

125. Accordingly, I determine, in accordance with s 6.5 of the BC Act and cl 6.7 of the BC Regulation, that the Proposed Development is not likely to have serious and irreversible impacts on the two threatened species (Swift Parrot) and (Squirrel Glider) that occur on the development site.

The precautionary principle: discretionary contention (s 7.13(2) BC Act)

126. Coming back to the precautionary principle, from [58] above, the case in the alternative for Contention 1(h) of the ASOFAC, by the Respondent, essentially is that even if there is no finding of an SAII on either the Swift Parrot or the Squirrel Glider, the Court should apply the precautionary principle and exercise its discretion and determine the appeal by refusing consent.

127. The Respondent submits that “there is uncertainty as to whether there is an SAII [sic] impact or not. There is scientific uncertainty in relation to this matter. This scientific uncertainty should not be used as a reason for failing to take action that would otherwise be taken should an SAII [sic] impact have been found, namely, refusal of the present Development Application.” (RWS at par 119). The evidence regarding uncertainty has been addressed above at [101].

128. Preston CJ in Planners North at [104]:

“In the event a development application is required to be accompanied by a BDAR, a second requirement under Part 7 of the BC Act, in s 7.13, is triggered: s 7.13(1) of the BC Act. Section 7.13(2) requires a consent authority, when determining a development application that is required to be accompanied by a BDAR, to take into consideration under the EPA Act the likely impact of the proposed development on biodiversity values as assessed in the BDAR that relates to that application. Apart from this consideration that is required by s 7.13(2), the consent authority may (but is not required to) further consider under the EPA Acy the likely impact of the proposed development on biodiversity values: s 7.13(2) of the BC Act.”

And at [110]:

“These other requirements in Part 7 of the BC Act, under s 7.7(2) and s 7.13(2), although distinct from the precondition in s 7.16(2), nevertheless overlap with that precondition.”

129. Before looking at the legal principles of the precautionary principle, I note that in submissions, the Applicant relied on the decision of Dixon SC in Vigor Masters Pty Ltd v Northern Beaches [2020] NSWLEC 1407*.* The Applicant’s submissions have since been addressed by Preston CJ in Northern Beaches Council v Vigor Master Pty Ltd [2025] NSWLEC 136 (Northern Beaches v Vigor Masters) when he upheld the appeal and, consistent with the position in Planners North quoted above, Preston CJ at [70]-[71] held as follows:

“70. Section s 7.13(2) of the BC Act provides for both a relevant consideration and a permissible consideration to be taken into account in determining a development application. The relevant consideration is specified in the first sentence of s 7.13(2). This identifies the matter to be considered as “the likely impact of the proposed development on biodiversity values.” That likely impact could be assessed by different methods. One method is the biodiversity assessment method (BAM) prescribed by order of the Minister under s 6.7(1) of the BC Act. A BDAR, which must accompany a development application in certain circumstances, is required to assess the biodiversity values of the land subject to the proposed development in accordance with the BAM and the impact of the proposed development on the biodiversity values of that land, also in accordance with the BAM: s 6.12(a) and (b) of the BC Act. The first sentence of s 7.13(2) of the BC Act requires the consent authority to consider the matter of the likely impact of the proposed development on biodiversity values “as assessed in the biodiversity assessment report that relates to the application.” The matter remains the likely impact of the of the proposed development on biodiversity values, but the consideration of this matter that is required is by considering how that matter is assessed in the BDAR that relates to the development application.

71. The permissible consideration is specified in the second sentence of s 7.13(2) of the BC Act. The matter that may be considered (but it is not required to be considered) is the same matter as is specified in the first sentence of the likely impact of the proposed development on biodiversity values. The difference between the two sentences is that whilst the first sentence requires consideration of that matter to be as assessed in the BDAR, the second sentence permits consideration of that matter otherwise than as assessed in the BDAR. This explains why the first sentence provides a relevant consideration that must be taken into account while the second sentence provides a permissible matter that may be taken into account. The assessment of the matter in the BDAR needs to be considered to give effect to the biodiversity offsets scheme’s prescription of use of the BAM to assess the biodiversity values of the land and the likely impact of the development on those biodiversity values, but any other assessment of the matter is not prescribed and may be, but need not be, considered in determining the development application.

130. Section 7.13(2) of the BC Act provides:

(2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.

131. The precautionary principle “is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious.” Pepper J quoting Stein J in Leatch v National Parks & Wildlife Service (1993) 81 LGERA 270 (at [282]) at [84] of Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 2) (2016) 215 LGERA 157; [2016] NSWLEC 16. Pepper J at [85] explains further as follows:

“85 In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256, Preston J analysed in comprehensive and careful detail the principles of ecologically sustainable development, including the precautionary principle. As elaborated upon by his Honour in that case, the precautionary principle may be summarised as follows:

(a) the application of the precautionary principle and the concomitant need to take appropriate measures, is triggered by the satisfaction of two conditions precedent: first, a threat of serious or irreversible environmental damage; and second, a lack of scientific certainty as to that damage (at [128]). These conditions are cumulative. Once both of these conditions or thresholds are satisfied, precautionary measures should be taken to avert the anticipated threat of environmental damage, but they should be proportionate (at [128]);

(b) it is not necessary that serious or irreversible environmental damage has actually occurred, it is the threat of such damage that is required. Moreover, the threatened environmental damage must attain the threshold of being serious or irreversible (at [129]). If there is no threat of serious or irreversible environmental damage, or if there is no (or no considerable) scientific uncertainty, the precautionary principle does not apply (at [130]-[149]);

(c) if the two conditions precedent or thresholds are satisfied, the precautionary principle will be activated. At this point there is a shifting of the evidentiary burden of proof and a decision maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist, or is negligible, effectively reverts to the proponent of the development (at [150]-[155]);

(d) the precautionary principle permits the taking of preventative measures without having to wait until the reality and seriousness of the threats become fully known (the concept of preventative anticipation) (at [156]);

(e) the precautionary principle should not be used to try to avoid all risks. A zero risk precautionary standard is inappropriate. Similarly, the precautionary principle cannot be based on a purely hypothetical approach to the risk founded on mere conjecture which has not been scientifically verified (at [157]-[160]);

(f) the type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness and irreversibility of the threat and the degree of uncertainty. The more significant and more uncertain the threat, the greater the degree of precaution required. Some margin for error should be retained until all of the consequences of the decision to proceed with a development are known. One means of retaining a margin for error is to implement a step-wise or adaptive management approach, whereby uncertainties are acknowledged and the area affected by the development is expanded as the extent of the uncertainty is reduced (at [161]-[165]);

(g) the precautionary principle embraces a concept of proportionality. That is to say, measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question. Where there is a choice between several appropriate measures, recourse should be had to the least onerous measure. A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated financial, livelihood and opportunity costs, and the seriousness and irreversibility of the potential threat (at [166]-[178]); and

(h) the precautionary principle, where triggered, does not necessarily prohibit the carrying out of development until full scientific certainty is attained. Were it otherwise, it would result in a “paralysing bias” in favour of the status quo and would ban “the very steps that it requires” (at [179]-[181]).”

132. I have set out above the measures taken in the Proposed Development to avoid, minimise or mitigate the impacts on the Swift Parrot and the Squirrel Glider.

133. In relation to the Squirrel Glider, I am not satisfied that the evidence supports a finding that there is scientific uncertainty. It seems that Dr McLean’s concerns regarding uncertainty and his reliance on the precautionary principle is limited to the Swift Parrot.

134. The Applicant submits that the raising of the precautionary principle by the Respondent represents a misunderstanding of that principle in fundamental terms (AWS, par 133). The Applicant submits that the principle cannot be used to avoid all risk and “cannot be applied on the basis of hypothetical (or probabilistic) conjecture: Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 at [157]-[160].”

135. Mr Benson acknowledges that he does not refer to the precautionary principle in the JER Ecology however when he was asked whether he would disagree with Dr McLean’s underlying proposition that there may be some uncertainty as to whether there is an SAII impact on the Swift Parrot on the Site he gave the following answer:

“I think, given the scale of the development, the avoidance proposed, the habitat available for the species in New South Wales, I think it is difficult to draw a conclusion that this development will impact the species such that it is likely to go extinct.” (Transcript 27 August 2025, p 144 at par 21)

136. Mr Benson concedes in cross examination that he did not pay adequate regard to the cumulative impact in his analysis in the BDAR or the JER Ecology when he makes the point in the BDAR that the area of Swift Parrot habitat being removed as part of the Proposed Development represents a low percentage and that this is part of the reason for not concluding that there is an SAII impact on the Swift Parrot (Transcript 27 August 2025, p 129). Notwithstanding this concession, Mr Benson does respond to and relies on the Swift Parrot Expert Advice by Dr Ross Crates dated 19 May 2025 (Tab 7, JER Ecology, Ex 5). In that Swift Parrot Expert Advice, Dr Crates makes the observation that:

“Swift Parrot habitat is at risk of loss through cumulative impacts, defined as the ongoing but small-scale loss of potential foraging habitat from multiple developments in the broader area (Crates et al. 2025). Balancing the need for increased housing in the area against the need to minimise cumulative impacts on Swift Parrot habitat in an important aim.”

137. I accept that this is the context within which Dr Crates gives his expert advice consisting of six comments. The comments have been considered and implemented where possible and appropriate by Mr Benson in the BDAR in accordance with the responses from AEP provided in italics within the copy of Swift Parrot Expert Advice at Tab 7 of JER Ecology. Accordingly, I find that Mr Benson, by virtue of seeking and incorporating the expert advice of Dr Crates, did in fact pay regard to cumulative impacts. Accordingly, I find that the measures taken to avoid and minimise impacts on biodiversity values are sufficient.

138. To apply the precautionary principle to the present issue of uncertainty of population numbers in Australia or even uncertainty as to the use of or presence of the Swift Parrot on the Site, the Applicant submits that “the Court would still apply the principles to a species with a very significant geographic distribution and the fact that there is no evidence that the species is unresponsive to measures to improve habitat (indeed, the very existence of the Federal Government’s Recovery Plan speaks against there being no positive measures that can be taken). That does not provide a proper basis for the Court to form any positive opinion of an SAII for the Swift Parrot.” (ASW par 133). I agree Dr McLean made appropriate concessions regarding his concerns and the provision of additional foraging trees as I have set out in detail above.

139. Accordingly, on the basis of the incorporation of the Swift Parrot Expert Advice in the BDAR and the various concessions made by Dr McLean including Principle 4 regarding the measures to improve its foraging habitat and vegetation integrity, I have formed the view that it is not appropriate in this instance to refuse the Proposed Development on the basis of applying the precautionary principle as summarised out by Pepper J quoted above.

Planning Contentions 2 and 3: Urban design and residential amenity and consistency with the CCDCP regarding lot layout and orientation

140. The two primary contentions that raise planning issues in the ASOFAC are contentions 2 and 3. I will set out the contentions, address the evidence and submissions and set out my findings and conclusions.

141. The first planning contention is Contention 2 titled “Management of edge effects” and contends that the location of proposed earthworks and roads within site does not minimise potential edge effects to retained bushland within and surrounding the site and is inconsistent with the Urban Interface Area (UIA requirements in Section 2.4.2.7 of the CCDCP. The first particular (a) repeats Contention 3(d) which relates to lot orientation and Sections 2.4.3.6(c) and (d) of the CCDCP and I will come back to lot orientation below in response to Contention 3 of the ASOFAC. The second particular (b) of Contention 2 reads as follows:

“(b) The proposed collector road traverses the eastern portion of the site containing native vegetation that is of high biodiversity value. Future extension of the proposed collector road will also impact native vegetation on adjacent land (including 90 Jensen Road to the east of the site). Positioning the Collector Road in this location despite knowledge of the biodiversity values contained within 90 Jensen Road will make future development of 90 Jensen Road difficult if biodiversity impacts from the collector road are determined to be unacceptable.”

142. The second planning contention is Contention 3 titled “Urban Design and residential amenity” and contends that “The Applicant has failed to demonstrate that the proposed residential lots are capable of accommodating an appropriate building envelope on each of those lots and that will achieve acceptable future residential amenity.” The four particulars (a) to (d) refer to controls in the CCDCP in Section 2.4.3 Residential Subdivision.

143. As detailed above, the Site is located with the Wadalba South – Urban Release Area (WSURA) pursuant to Chapter 5.9 of the CCDCP. Chapter 5.9 is titled “Wadalba South – Urban Release Area” and the stated purpose of this Chapter is “to provide guidance in the preparation of proposals to develop the land to which this Chapter applies”: Section 5.9.1, CCDCP.

Contention 2 – Management of edge effects

144. The Respondent submits that the UIA will not be consistent with Section 2.4.2.7 of the CCDCP and the vegetated buffer zone adjoining the roads are not wide enough.

145. The proposed roads provide for generally a 4.5 m or 3.5 m verge. The Respondent identifies the deficiencies to be the lack of Water Sensitive Urban Design (WSUD) or vegetated buffer elements of the UIA as prescribed in the CCDCP.

146. The vegetated buffer is required to be 5-10 m, being a bush regeneration zone to mitigate abiotic and biotic edge effects, the WSUD are also required to be a minimum of 5 m, and these widths are not part of the road design. The Respondent submits that the Applicant has elected a higher yield over compliance with the CCDCP, “to an extent that results in a failure to achieve the objects of these controls taking this case outside the remit of s 4.15(3A) [of the EPA Act]” (RWS, par 141).

147. Contrary to that submission by the Respondent, the expert ecologists, when addressing Contention 1(d) relating to edge effects, reached agreement in the JER Ecology at par 26 and Mr Benson clarified at par 46 as follows:

“26 The BMP should be updated to include the provision of three rows of Lilly Pilly trees (or other suitable species such as Elaeocarpus reticulatus) to be planted within the first 5m of the road reserve to provide a dense planting screen between the development and the retained lands. The planting screen will reduce the suitability of the retained lands for Noisy Miner as well as reduce the light spill from the development and vehicles. The BMP is required to be finalised to be included within the final Court Bundle.”

“46 To allow for the potential for planting of the Lilly Pilly (or other approved species) hedge to occur within the retained lot identified as Lot 150 … to mitigate edge effects, the BDAR will be updated to include a 5m buffer that will incur biodiversity offset credits. This area will be described in the report as the Urban Interface Area (UIA).”

148. The planning experts agree that although they are of the opinion that Contention 2 should be addressed principally by the Ecological Experts (JER Planning, par 6), the UIA requirements in Section 2.4.2.7 of the CCDCP “are relevant planning considerations for the overall layout of the subdivision.” (JER Planning, par 7). Mr McDonald’s opinion at par 11 is that “[t]he actual dimensions and design of the UIA necessary for this specific development will be a function of the analysis undertaken by the Ecology experts in providing their opinions to the Court, as agreed by CS and me above”

149. The Applicant relies on the Biodiversity Management Plan for 60-70 Jensen Road, Wadalba NSW (BMP) prepared by AEP Ref 3533 Rev 02 dated 20 August 2025 (Ex E, Tab 2) which at 3.2.4 provides that ‘edge effects will be managed through a designated 10m landscape buffer within the BMP from the development edge … to reduce impacts associated with the proposed development including light spill, weed incursion, noise, dust, and altered hydrology” and specifies the details of the 5 m native planning screen within the UIA consisting of 3 rows of Lilly Pilly, or suitable alternative, and as shown in Figure 3 of the BMP.

150. I have already found at [41] above that the light spill concerns have been addressed in BDAR (Ex H) at p 109 and in the conditions (Ex Q)

151. On this evidence, and in the context of my findings on the ecology issues, I am satisfied that Contention 2 is sufficiently resolved so as to not warrant the refusal of the Proposed Development.

Contention 3 – Urban design and residential amenity

152. This contention raises the concern whether the proposed residential lots are capable of accommodating an appropriate building envelope suitable for acceptable future residential amenity.

153. The Applicant submits that the particulars of this contention only identify matters arising under specific controls of the CCDCP “without reference to the full context of those specific controls in the broader planning context” (ASW, par 41)

154. The Applicant submits that the proposed residential lots meet the minimum lot size requirements under cl 4.1 of the CCLEP and that each lot is sufficient to provide for erection of a dwelling under the provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). I note the agreement reached between the expert town planners regarding Contention 3 in JER Planning at pars 19 to 20 (Ex 4) where Mr McDonald, at par 20 states as follows:

“I agree that, post any subdivision approval, future housing development could occur under the provisions of the Exempt and Complying Development SEPP Part 3C Greenfield Housing Code and that, under that Code, the front setback to a primary road is 4.5m, other than for a garage or carport. The only requirement is that the lot is a minimum width of 6m at the front building line. These circumstances highlight the desire/need to achieve minimum subdivision urban design outcomes, in terms of lot widths, capacity to achieve minimum width at the building line, and lot orientation at the subdivision DA stage. These design parameters under CCDCP are in place in order to try set up future development to achieve desired living standards such access to sunlight to living areas and private open space. The siting and orientation of lots influences relationships to adjoining lots and future buildings. The provisions of the Exempt and Complying Development SEPP Part 3C do not have that function.”

155. The Applicant submits at par 43 AWS, that the effect of cl 1.9(1) of the Codes SEPP is to ensure the provision of it supersede any “standard” plan and the effect of cl 1.9(11) is to extend that field of operation to any “development control plan adopted for the purposes” of any standard local environmental plan:

“The CCLEP is a “standard” plan and the CCDCP is a development control plan adopted for the purposes of the CCLEP. Accordingly, the provisions of the Codes SEPP – in respect of dwellings – are intended to supersede those of both the CCLEP and CCDCP. This means that the lots provided by the present development are capable of allowing for an appropriate building envelope for the very reason that such dwellings are then able to be built under the Codes SEPP.”

156. In response to Mr McDonald’s opinion about the function of the Codes SEPP to provide for amenity as compared with the CCDCP the Applicant submits:

“These design parameters under CCDCP are in place in order to try set up future development to achieve desired living standards such access to sunlight to living areas and private open space. The siting and orientation of lots influences relationships to adjoining lots and future buildings.”

157. The Applicant submits that Mr McDonald is wrong and I agree with the submission that:

“What other purpose can there be for provisions relating to:

Setbacks (clause 3C.11(1), (2), (7) Codes SEPP);

Height (clause 3C.11(5) Codes SEPP);

Landscaping (clause 3C.15 Codes SEPP); and

The entirety of subdivision 4 Codes SEPP which is titled “Amenity development standards for dwelling houses…”

158. Now, to address the following specific contentions regarding lot orientation and the subdivision layout design:

159. 15 m lot width at 4.5 m front setback: Contention 3(a), ASOFAC; and

160. Street orientation and lot design for solar access (sun wheel): Contention 3(b), (c) and (d), ASOFAC.

161. The Respondent submits that “this will produce more overshadowing of the rear POS of the lots immediately to the south.” (RWS par 142)

162. Regarding Lot width and setback, Mr McDonald at par 25 and 26 of JER Planning states as follows:

“25. I also agree that the environmental performance of individual houses, i.e. the buildings, will be required to meet the BASIX provisions but this is different and separate to the desired passive design outcomes from the CCDP subdivision provisions – which seek, in a holistic way, to set up the lots, including the future internal living areas and external private open space areas for future quality outcomes, separate from the BASIX focus on the environmental performance of individual buildings.

26. I acknowledge that lot widths for lots fronting a cul-de-sac are sometimes narrower at the road frontage and that this outcome may be acceptable depending on other matters such as lot orientation and lot depth. For example proposed lots 124 and 125 have narrow frontages less than 15m and in order to meet the width of 15m will have buildings set deeper into the lot. The orientation of these same lots is at a substantially greater angle than the CCDCP solar access wheel, as are the lots immediately adjoining to the north and west. The applicant has not indicated a building footprint on these lots consistent with the CCDCP provisions or the anticipated overshadowing associated with the siting of dwellings on these lots. The Applicant, in departing from the CCDCP provisions, has not demonstrated whether minimum solar access can be achieved both to the lots and the neighbouring lots, noting the CCDCP requirement (see above) that the midpoint of each lot shall have access to a minimum of 3 hours sunshine between 9 am and 3 pm on June 21 (the winter solstice) (CCDCP Section 2.4.3.6 b iv).”

161. Regarding Lot orientation for solar access, the Applicant submits that it is ideal but not mandatory and the merit assessment should include consideration of the following Site constraints which include:

162. Frontage onto Jensen Road;

163. C2 zone land at the north; and

164. WSURA Indicative Road Layout and Structure Plan (CCDCP Fig 3 Chapter 5.9). This issue comes up again in ecology.

165. The Applicant submits that the relevant CCDCP controls in issue are contained in Section 2.4.3.6 Street Orientation and Lot Design for Solar Access (Ex 6, Tab 27 folio 349-351). “These controls cannot be read in isolation but must be read in context. The primary requirement is identified in (a) as to align streets “generally east-west and north south where possible” (emphasis added). The control is inherently ambitious rather than prescriptive (which is appropriate).”

166. It is agreed that Road 4 and Road 3 meet this street orientation criteria. The applicant relies on the traffic experts’ agreement that:

“26. … the amended subdivision masterplan drawing (P00470-SUBDIV-0006 Rev B) included in Annexure B shows that the lot to the west (50 Jensen Road) includes appropriate extensions of Road 02 and Road 04 at the subject site’s western boundary. This satisfies Contention 5(e) as it relates to road continuations toward the west. The subdivision masterplan notes that the DA for 50 Jensen Road is currently being prepared.

27. PC and DF agree that, to the east, the collector road is appropriately continued into and through 90 Jensen Road, which satisfies Contention 5(e) as it relates to road extensions through the site’s eastern boundary.” JER Traffic, paras 26 and 27)

164. The Applicant submits that “the curved geometry of Jensen Road – and need to link the central/spine road to the eastern property at the agreed masterplan location – makes any strict north-south alignment impossible or inherently impractical. The roads are “generally” in the desired alignment “where possible”” to which I agree.

165. Mr McDonald recognises that it is the placement of Road 1 that drives outcomes for the desired subdivision urban design (JER Planning at par 28) and he agrees that the location and design of Road 1 is a matter for the traffic engineers (JER Planning at par 8). The agreement of the traffic engineers is noted above at [163].

166. I have considered the requirements (a) to (d) of Section 2.4.3.6 of the CCDCP where requirement b provides as follows:

b The design shall provide for lot orientation which maximises solar access by providing:

i lots with a north - south orientation (within the range of 30 degrees east of north and 20 degrees west of north), enabling the provision of north facing living areas within the dwelling and north facing private open space;

ii lots on the south side of east - west running streets shall have increased width to prevent overshadowing, and to provide for north-east and north-west facing private open space;

iii narrower and smaller lots are best suited on the northern side of east-west running streets, with north facing private open space; and

iv the midpoint of each lot shall have access to a minimum of 3 hours sunshine between 9 am and 3 pm on June 21 (the winter solstice).

167. One looks to the objectives of a control in a DCP only when the control or requirement of a DCP is not complied with. Put another way, if the control is complied with then you assume the objectives have been achieved: s 4.15(3A) EPA Act. I set out in full s 4.15(3A) of the EPA Act as follows:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

168. Objectives of the CCDCP for 2.4.3.6 Street Orientation and Lot Design for Solar Access:

▪ To promote energy conservation principles

▪ To ensure lots are oriented to maximise their potential to receive solar access

▪ To enable lot shape and orientation which facilitates the design and construction of development which is:

- energy efficient;

- attractive and functional;

- environmentally sustainable; and

- has capacity to provide a quality lifestyle which encourages community interaction

169. The Applicant submits that Mr McDonald appears to use Fig 7 Solar Access Wheel as an end in itself and not a means to any end: see JER Planning at par 24 where Mr McDonald states as follows:

“CS has included further information in this joint report in the form of drawing P00470- SUBDIV-0001, Rev F on which the orientation of lots, relevant to the CCDCP provisions is shown. The orientation of the majority of lots are inconsistent with the solar access wheel provided as Figure 7 of CCDCP Chapter 2.4 Section 2.4.3.6, i.e. they do not sit within the desired angles of orientation.”

170. The Applicant submits that the reference to ‘desired angles of orientation’ is a misreading of the controls. “The Figure is expressly reference only in Requirement a. That is the control relating to desired alignment of streets east-west and north-south and, again, this is where possible. Though Mr McDonald fairly acknowledges that the controls are “holistic” in the desire for future quality outcomes” (see Ex 4 at [25]) there is no assessment of the Lots against the requirements listed in b, as done above, and no identification of any adverse outcome for any Lot identified to be unreasonable.” (AWS at par 55)

171. The Court acknowledges the subdivision design approved in MKY Enterprises (Aust) Pty Ltd v Central Coast (No 2) [2025] NSWLEC 1215 (Ex P) which similarly adopts angled lots along angled roads which can be inferred to similarly be consequential on factors like the curve in Jensen Road and the need to provide planned connections of internal roads consistent with the Fig 3 of Chapter 5.9 of the CCDCP (AWS par 58).

172. The Applicant also refers to the contrary rule expressed, e.g. in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [43]: “development standards are not ends in themselves but means to achieving an end.”

173. I note, relevantly, that no particular Lot of the Proposed Development is identified to have sub-optimal outcomes for solar performance for external open space.

174. Therefore, I find that the non-compliance with the relevant lot orientation CCDCP control and the 15 m lot width at 4.5 m are not sufficient to warrant the refusal of granting consent to the development application.

Satisfaction of other jurisdictional prerequisites (contentions resolved)

175. As stated above, the minimum lot size development standard of 40 ha applies to the C2 Environmental Conservation zoned portion of the Site, pursuant to the Minimum Lot Size Map referred to in cl 4.1(2) of the CCLEP. (ASOFAC, par 25) and the proposed Public Reserve Lot 150 is smaller than that at 17,607.02 m2. The CCLEP at cl 4.1F permits exceptions to minimum lot sizes for biodiversity conservation. I find that the terms of cl 4.1F(2)(a) to (c) of the CCLEP are satisfied because the Proposed Development includes a BMP (Ex E, Tab 2) which facilitates the long-term biodiversity conservation management of the lot and pursuant to the VPA referred to at [103] suitable arrangements have been made for the long-term protection, conservation and management of the lot and the Proposed Development does not propose any native vegetation clearing on the lot.

176. Essential Services are referred to in Contentions 4 (Concurrence of the Planning Secretary), 5 (Public utility infrastructure and essential services) and 7 (Inconsistency with the site-specific controls in Chapter 5.9 of the CCDCP)

177. Contention 4 relates to a jurisdictional prerequisite applicable at the time the Proposed Development was lodged with the Respondent where cl 6.1(2) of the CCLEP provides that development consent must not be granted to development to which this clause applies unless the consent authority has obtained the concurrence of the Planning Secretary. Accordingly, this contention is resolved because at Tab 11 of Ex D, the Applicant provides a copy of the Secretary’s Concurrence dated 1 August 2025 which states “For the purpose of clause 6.1 of the Central Coast Local Environmental Plan 2022 (as was applied when DA/3426/2022 was lodged), I … grant the Planning Secretary’s concurrence to the development …” and annexes the subdivision plan reproduced above at Fig 1. I note that cl 6.1 of the CCLEP has since been repealed.

178. Contention 5 also relates to the satisfaction of a jurisdictional prerequisite in the terms of cl 6.2(1) of the CCLEP which requires satisfaction that public utility infrastructure that is essential for the proposed development is available, or that adequate arrangements have been made to make that infrastructure available when it is required. Contention 5 also includes a particular that incorporates the terms of contention 7 regarding the site specific controls of Chapter 5.9 of the CCDCP. I have been able to form the state of satisfaction because the experts confirm in the JER Waste and Wastewater their agreement that “proposed servicing arrangements are considered suitable” and that, as such, the development “is consistent with the sequence of staging for subdivision and the delivery of infrastructure and services”, being consistent with the Indicative Staging Plan in Fig 2 of Chapter 5.9 of the CCDCP. The experts also confirm in the JER Waste and Wastewater as follows:

179. The existing water mains on Jensen Road have the capacity to provide potable water service for the Proposed Development (Ex 2 at par 12). Any required 200 mm water main could be designed and delivered under a works-in-kind agreement and can be located within the project boundary and Jensen Road frontage (Ex 2 at par 13). A voluntary planning agreement (VPA) is proposed and agreed to in principle which should facility this outcome through that mechanism rather than a specific works-in-kind agreement.

180. Sewer servicing proposed is feasible as retained in the management and operational responsibility of the proponent until regional wastewater infrastructure becomes available (Ex 2 at par 14a).

181. The Landowner Agreement and Design Cost Contribution Deed (Ex D, Tab 6 and 8) are sufficient to demonstrate design co-ordination with neighbouring properties so that subdivision of the Site will not undermine orderly development in and of the WSURA (Ex 2 at par 18)

182. Accordingly, I am satisfied that adequate arrangements have been made for the provision of public utility infrastructure including the supply of water and the disposal and management of sewage available in accordance with the requirements of cl 6.2 of the CCLEP.

183. Contention 7(a)(v) of the ASOFAC provides that there is insufficient information to demonstrate that the east-west population connectivity for the Squirrel Glider will be maintained and enhanced as required in Section 5.9.2.7(b) of the CCDCP. I refer to my finding as to Squirrel Glider connectivity above at [1].

184. Traffic: cl 7.6 of the CCLEP: development consent must not be granted to development unless the consent authority is satisfied that all of the listed services that are essential for the development are available or that adequate arrangements have been made to make them available when required. Suitable vehicular access was the last remaining essential service to be resolved as contented in Contentions 5, 6, 7C, 9d and 9e of the SOFAC.

185. The experts agree in the JER Traffic (Ex 3) that the Site can hold temporary turning heads on the proposed roads pending completion of designs for neighbouring properties (JER Traffic, pars 22-23, 25, 38 and 61). The road design is compliant with the relevant controls (JER Traffic at pars 31, 55 and 58).

186. The experts also agree that the proposed roads are located at appropriate locations for connections to properties to the west (JER Traffic at par 26) and to the east (JER Traffic at par 27).

187. To the extent that a possible sub-optimal outcome was identified in contention 6i for the location of stormwater infrastructure pints, the experts identified options for resolution of the issue (JER Traffic at par 65-66)

188. The entry to the Site from Jensen Road has been appropriately designed for a Safe Intersection Sight Distance (JER Traffic at par 43) and see also above at [56] regarding strategic decisions of the Respondent and the agreement of the experts that an ad-hoc re-design would “have broader implication for the [WSURA]” (JER Traffic par 96). Similarly, any earlier termination of that road, within the Site, would involve a “redistribution of traffic on to the external road network” (JER Traffic at par 98). There is no updated traffic modelling or transport assessment that would support that change (JER Traffic pars 100 and 103.

189. Accordingly, I am satisfied that requirements for essential services, including suitable vehicular access, pursuant to cl 7.6 of the CCLEP have been satisfied.

190. The whole of the site is mapped as ‘Class 5’ on the CCLEP Acid Sulfate Soils Map referred to in cl 7.1(2) of the CCLEP

Notations:

188. The Court notes that the Respondent council as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to development application DA 3426/2022 made on 15 August 2025 to rely on the following additional information and updated reports:

189. Subdivision Lot Layout Plans (Rev F) prepared by Group Development Services 23 July 2025

190. Concept Engineering Plans (Rev E + F) prepared by Group Development Services up to 15 August 2025

191. Response to Amended SOFAC prepared by Peterson Bushfire 1 August 2025

192. Swept path drawings (Version A) prepared by McLaren Traffic Engineering 7 August 2025

193. Biodiversity Values Mapped Land Review

194. Draft Landowners Access Deed

195. Correspondence from local public transport provider Busways

196. Design Cost Contribution Deed

197. Swift Parrot Record Maps prepared by AEP August 2025

198. Solar Access Wheel

199. Concurrence of Planning Secretary

200. Supplementary Acid Sulfate Soil Advice prepared by Douglas Partners 14 July 2025

201. Biodiversity Assessment Report (BDAR) prepared by AEP, Ref 3533, Rev 2 dated 20 August 2025

202. Biodiversity Management Plan (BMP) prepared by AEP Ref 3533, Rev 2 dated 20 August 2025

Orders:

189. The Court orders:

190. The appeal is upheld.

191. Development consent is granted to development application DA/3426/2022 for residential subdivision (69 lots) comprising 68 residential lots and 1 public reserve lot for environmental purposes (Lot 150) in 5 stages and associated on-site works including demolition (integrated development) at 60-70 Jensen Road, Wadalba, Lots A and B in DP 33 5321 subject to the conditions of consent in Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A (444 KB, pdf)

Amendments

06 May 2026

Catchwords amended.