IRM Property Group (No. 2) Pty Ltd v Blacktown City Council - [2021] NSWLEC 1306 - NSWLEC 2021 case summary — Zoe

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IRM Property Group (No. 2) Pty Ltd v Blacktown City Council

[2021] NSWLEC 1306

Land and Environment Court (NSW)|2021-02-18

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-02-18

Source

Original judgment source is linked above.

Judgment (11 paragraphs)

[1]

Judgment

COMMISSIONERS: This is an appeal against deemed refusal of Development Application (DA) 19-01184 by the Blacktown City Council (hereafter the Council) which, as amended, seeks construction of a new road, Torrens title subdivision into eight lots, removal of vegetation and associated earth/civil works on Lots 1, 2 and 3 DP 1145808, also known as 1 Kangaroo Avenue, Eastern Creek (hereafter the site).

[2]

Background

The DA was submitted to Council on 16 August 2019, and after notification, made consistent with the relevant planning controls, one submission in objection was received.
The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
On 24 November 2020, the applicant was granted leave by the Court (Registrar) to amend the DA, which essentially sought to change the number and dimensions of the proposed lots for subdivision. The respondent subsequently amended its Statement of Facts and Contentions (SoFC), dated 15 December 2020.
The amended DA before the Court under appeal, as described to the Court seeks: 1. construction of a 560m new sealed (precinct) road on proposed Lot 18, 2. Torrens title subdivision of three lots into eight lots, described as, 1. four lots for future development (proposed lots 11, 12, 13 and 17), 2. one lot for the existing asphalt batching plant (in proposed lot 14), 3. one lot for a detention basin (in proposed Lot 15), 4. one lot as future biodiversity stewardship (proposed Lot 16), and 5. one lot for the new precinct road (in proposed Lot 18), 1. removal of native vegetation primarily from proposed Lots 13, 15 and 17, and retirement of assessed biodiversity offset credits to address the loss of native vegetation with biodiversity values; 2. construction of a bioretention/detention basin on proposed Lot 15; 3. (native) re-vegetation of land as a future biodiversity stewardship site or with other appropriate strategy on proposed Lot 16; and 4. associated civil and landscaping works, including cut/fill and retaining walls on proposed Lots 13, 15 and 17.

[4]

Relevant Planning Controls

The requirements of the EPA Act are relevant for the Court's consideration to grant consent to the DA under appeal, and particularly the matters of consideration described in s 4.15(1) below: 4.15 Evaluation(cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
The provisions of the Biodiversity Conservation Act 2016 (BC Act) are also relevant for the Courts consideration. Section 1.3 of the BC Act explains the purpose of the Act, as described below, and that which is relevant to the Courts consideration of this appeal is shown in bold italics: 1.3 Purpose of Act The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular - (a) to conserve biodiversity at bioregional and State scales, and (b) to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and (c) to improve, share and use knowledge, including local and traditional Aboriginal ecological knowledge, about biodiversity conservation, and (d) to support biodiversity conservation in the context of a changing climate, and (e) to support collating and sharing data, and monitoring and reporting on the status of biodiversity and the effectiveness of conservation actions, and (f) to assess the extinction risk of species and ecological communities, and identify key threatening processes, through an independent and rigorous scientific process, and (g) to regulate human interactions with wildlife by applying a risk-based approach, and (h) to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and (i) to support and guide prioritised and strategic investment in biodiversity conservation, and (j) to encourage and enable landholders to enter into voluntary agreements over land for the conservation of biodiversity, and (k) to establish a framework to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity, and (l) to establish a scientific method for assessing the likely impacts on biodiversity values of proposed development and land use change, for calculating measures to offset those impacts and for assessing improvements in biodiversity values, and (m) to establish market-based conservation mechanisms through which the biodiversity impacts of development and land use change can be offset at landscape and site scales, and (n) to support public consultation and participation in biodiversity conservation and decision-making about biodiversity conservation, and (o) to make expert advice and knowledge available to assist the Minister in the administration of this Act.
The Biodiversity Conservation Regulation 2017 (BC Reg) supports the BC Act. The Biodiversity Values Map, in cl 7.1(b) of the BC Reg forms part of the Biodiversity Offsets Scheme Threshold assessment, and is one of the triggers for determining whether the Biodiversity Offset Scheme (BOS) will apply, as described in cl 7.1 below: 7.1 Biodiversity offsets scheme threshold (section 7.4) (1) Proposed development exceeds the biodiversity offsets scheme threshold for the purposes of Part 7 of the Act if it is or involves - (a) the clearing of native vegetation of an area declared by clause 7.2 as exceeding the threshold, or (b) the clearing of native vegetation, or other action prescribed by clause 6.1, on land included on the Biodiversity Values Map published under clause 7.3. (2) Proposed development that is or involves the clearing of native vegetation on Lord Howe Island does not exceed the biodiversity scheme threshold, despite anything to the contrary in subclause (1). (3) If proposed development is or involves the subdivision of land, the subdivision is taken to involve the clearing of native vegetation that, in the opinion of the relevant consent authority or other planning approval body, is required or likely to be required for the purposes for which the land is to be subdivided. Once that clearing has been taken into account, the clearing for the purposes of the subsequent development of the land for which it was subdivided is not to be taken into account when determining whether the subsequent development exceeds the threshold.
The site is mapped in the Biodiversity Values Map as being partially covered (in the southern portion) by native vegetation with identified/mapped biodiversity value.
Native vegetation mapped on the site is identified as being part of the Cumberland Shale Hills Woodland (CSHW), Cumberland Shale Plains Woodland (CSPW) and Cumberland River Flat Forest, also described in the BDAR as Woodland on alluvial flats (WAF). The CSPW is listed as a Critically Endangered Community (EEC) in Schedule 2 of the BC Act, pursuant to s 4.2(2)(a).
Pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the applicant has satisfied the Court with the provision of written consent from all landowners for works proposed by the DA, which resolves the relevant contention as originally posed by Council.
Pursuant to cl 7 of the State Environmental Planning Policy 55 - Remediation of Land (SEPP 55), the site must be deemed suitable for the proposed use by the consent authority. The Court is satisfied that the applicant has provided evidence of the relevant contamination assessment reports and a remedial action plan (RAP) which together with the agreed conditions of consent, would address the requirement of cl 7 that the site can be made suitable for the proposed use.
The site is predominantly zoned IN1 General Industrial, with a small portion of the site (north west corner), zoned as E2 Environmental Conservation, pursuant to cl 10 of the SEPP WSEA. The proposed works are focused on and permissible in the IN1 zone, pursuant to cl 11, and the objectives of the relevant zones are satisfied by the proposed development, as described below: Zone IN1 General Industrial 1 Objectives of zone • To facilitate a wide range of employment-generating development including industrial, manufacturing, warehousing, storage and research uses and ancillary office space. • To encourage employment opportunities along motorway corridors, including the M7 and M4. • To minimise any adverse effect of industry on other land uses. • To facilitate road network links to the M7 and M4 Motorways. • To encourage a high standard of development that does not prejudice the sustainability of other enterprises or the environment. • To provide for small-scale local services such as commercial, retail and community facilities (including child care facilities) that service or support the needs of employment-generating uses in the zone. … Zone E2 Environmental Conservation 1 Objectives of zone • To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values.
Pursuant to cl 19(2) of the SEPP WSEA, the relevant precinct plan must be considered by the Court to grant consent to the DA under appeal. The site, pursuant to cl 19(3)(b), is identified as being within the Eastern Creek Precinct Plan (Blacktown LGA).
Pursuant to cl 29 of the SEPP WSEA, the site is located on an industrial release area (IRA), and therefore satisfactory arrangements must be made to contribute to the provision of regional transport infrastructure and services. The amended DA was referred by the applicant to the relevant authority for the SAC in May 2020, and it is acknowledged that the SAC has not yet been received to the applicant or available for consideration of the Court.
In consideration of the DA under appeal, and specifically the drainage design, the parties draw the Court's attention to the Blacktown City Council Engineering Guide for Development 2005 (BCC Guide).

[6]

Does the proposed development sufficiently avoid or minimise impacts on biodiversity values?

The Council contends that the proposed development has not sufficiently avoided or minimised impacts to native vegetation with mapped biodiversity values, and specifically because of the proposed clearing and filling to create proposed Lot 13 and 17.
Further to this, Council asserts that the future Biodiversity Stewardship Site (BSS) is not an appropriate avoidance strategy to offset the loss of biodiversity values that will result from clearing on the site. The applicant seeks, in the future and by a separate application, to enter into a Biodiversity Stewardship Agreement (BSA), which will be dedicated over proposed Lot 16.
The applicant submits that it has taken all sufficient measures to avoid and/or minimise the removal of native vegetation from the site, and that where native vegetation with identified biodiversity values are sought to be removed, this has been appropriately offset (mitigated) through the retirement of calculated biodiversity offset credits, and the future BSS.
Based on the explanation given to the Court, we understand that the applicant seeks to mitigate impact to biodiversity values by the re-establishment and protection of native vegetation on the site in two possible ways, being: ideally, establish a BSS on proposed Lot 16 through a BSA, as part of a separate application; and if that is not possible, to manage existing and any newly established native vegetation on proposed Lot 16, through a Vegetation Management Plan (VMP).
The BC Act establishes the regulatory framework for assessing and where required, compensating/addressing biodiversity related impacts resulting from a development.
The Court must consider whether the appropriate steps have been taken for the application under appeal, pursuant to s 6.4 of the BC Act, and to 'avoid, minimise and offset the impacts of proposed development and land use change on biodiversity', which is a required purpose in s 1.3 of the BC Act.
It is accepted that the amended DA proposes physical earthworks within areas of the site that have been mapped as native vegetation belonging to the CSPW and WAF, and that some vegetation that is proposed to be cleared is mapped with biodiversity values, specifically on proposed Lot 13 and 17, as shown on the Biodiversity Values Map.
We understand that the proposed development seeks to clear areas of native and exotic vegetation, to enable physical works such as road construction, dams and retaining walls, and major earthworks, such as the cut/fill to level land surfaces.
As directed by the parties, the focus of the Court's assessment relates to the loss of native vegetation with biodiversity values within proposed Lots 13 and 17. The experts agree, and the Court accepts that the native vegetation mapped within proposed Lot 12, which also has biodiversity values, will not be significantly impacted by the proposed development, and is therefore not of concern for the Court in consideration of this appeal.
The parties in their evidence primarily focus on the loss of biodiversity values from proposed Lot 17, because it is disputed whether there are possible alternative lot designs that could protect some or all of this native vegetation.
Pursuant to s 4.31 of the BC Act, the clearing of native vegetation is listed as a key threatening process in Schedule 4. The experts disagree as to whether the proposed development has sufficiently avoided or minimised impact to biodiversity values on the site by the clearing required to subdivide the land, particularly to create proposed Lots 13 and 17.
Parts 6 and 7 of the BC Reg provide the threshold determinants for requiring a BOS. The experts agree that because the proposed physical works exceed the biodiversity offsets scheme threshold, pursuant to cl 7.1(1) of the BC Reg, a biodiversity development assessment report (BDAR) is required to support the application before the Court.
The experts also agree that due to the proposed location of the clearing on the site of vegetation with mapped biodiversity values, a BOS is required to support the proposed development, and which should identify measures to offset or compensate impacts on biodiversity values, pursuant to s 6.4 of the BC Act.
Section 6.4 of the BC Act sets out the purpose of the BOS, as relied on in this application. This clause establishes a requirement to identify appropriate biodiversity conservation measures to offset or compensate for impacts on biodiversity values, after steps are taken to avoid or minimise those impacts. It is the established requirement to 'avoid or minimise' impacts on biodiversity values that separates the experts.
The experts agree that if the Court was satisfied that the proposed development by design, sufficiently avoids or minimises this impact, then the reliance on the BOS is applicable for consideration. If not satisfied, then the consideration of a BOS for this application is not relevant.
Pursuant to s 6.4(1) of the BC Act, we consider that the applicant must firstly demonstrate appropriate and sufficient steps have been taken to avoid or minimise impact to areas with vegetation mapped with biodiversity values, and only then if satisfied that this is achieved, the relevant biodiversity conservation measures should be considered to offset or compensate any impacts such as from clearing, as described below: 6.4 Biodiversity conservation offsets under scheme (1) For the purposes of the biodiversity offsets scheme, the biodiversity conservation measures to offset or compensate for impacts on biodiversity values after any steps taken to avoid or minimise those impacts are as follows - (a) the retirement of biodiversity credits, (b) other actions that benefit the biodiversity values of the impacted land or other biodiversity values. (2) The regulations may make provision with respect to the following (offset rules) - (a) the class of biodiversity credits to be retired, (b) the other actions that qualify or do not qualify as biodiversity conservation measures, (c) the circumstances in which biodiversity conservation measures may include a combination of the retirement of biodiversity credits and other actions. Any such regulation may apply, adopt or incorporate a publication of the Environment Agency Head as in force from time to time. (3) The other actions that benefit biodiversity values include - (a) actions to conserve or enhance biodiversity (including threatened species and ecological communities), and (b) actions for the purposes of research or education in relation to biodiversity, and (c) actions under the Biodiversity Conservation Program under Part 4 or other government programs or policies for the conservation or enhancement of biodiversity. (4) The regulations may set out the circumstances in which the ordinary rules for the determination of the number and class of biodiversity credits required as biodiversity offsets may be varied.
The BDAR (Exhibit Y) relied on by the application before the Court describes the steps the applicant has taken to avoid and/or minimise impact to native vegetation with mapped biodiversity values on the site. The oral evidence of the experts was also considered by the Court.
The concept of avoidance, minimisation and offsets to address impacts to biodiversity values is consistent with a key purpose to maintain a healthy, productive and resilient environments, as provided for in s 1.3(k) of the BC Act. The requirement for the proposed development to first seek to avoid or minimise impact, and then if required, offset the loss of native vegetation that has biodiversity values is a hierarchical approach, as explained by Preston CJ in Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102 (Denoci judgement) at [27].
As explained in the Denoci judgement, s 4.15(1)(b) of the EPA Act also requires the Court to consider the likely impacts of the proposed development, including likely environmental impacts on the natural environment.

[7]

Sufficiency of steps to avoid or minimise impact to biodiversity values on the site

The BDAR (Exhibit Y) explains that the proposed precinct road construction (Lot 18) will result in the removal of CSPW species (identified as PCT850), and CSPW species (identified as PCT849). The proposed dam and bulk earthworks to create lots (Lots 13, 15 and 17) will result in removal of vegetation species from the PCT849, PCT850 and WAF species (identified as PCT835), which is partially mapped as having biodiversity value across proposed Lots 13 and 17.
The BDAR describes two 'patches' of native(/remnant) vegetation that are impacted by the physical works associated with the DA under appeal. Firstly, is 0.24Ha of predominantly PCT850, which will be impacted by the proposed road construction on Lot 18. Secondly, is 4.6Ha of PCT849, PCT850 and PCT835, which is impacted by the proposed dams and bulk (filling) earthworks within proposed Lots 13, 15 and 17.
The area of native vegetation proposed to be removed is assessed as 2.47Ha, 0.7Ha, and 0.24Ha for the PCT835, PCT849 and PCT850, respectively. The total area of native vegetation to be removed is 3.41Ha. The BDAR also recognises that the proposed clearing of native vegetation potentially impacts threatened fauna species, and as assessed for this site affects two areas potentially hosting, and previously observed, associated with the southern myotis.
This assessment in the BDAR is agreed as accurate by the ecological experts.
The experts also agree that the site has a history of disturbance, which has impacted the presence and quality of native vegetation found on the site. They generally agree that the patches of PCT849, PCT850 and PCT835 to be removed by the proposed physical works are in moderate condition.
The biodiversity credit report in the BDAR calculates the following credits relating to the proposed works as: 41, 13, 6 and 49 for impacts to PCT835, PCT849, PCT850, and southern myotis, respectively. The experts agree that the biodiversity credits are accurately calculated in the BDAR, which is based on the proposed development under assessment, a biodiversity survey and the calculation method described in the BAM.
However, the ecological experts do not agree as to whether the proposed development has sufficiently avoided or minimised impact to areas mapped as having biodiversity values on the site, specifically associated with proposed Lot 17. Therefore, they disagree on whether the reliance on the proposed retirement of the calculated credits (in the BDAR) is consistent with the relevant provisions of the BC Act.
Dr MacDonald considers that sufficient effort has been taken to avoid and/or minimise impact to native vegetation with biodiversity values on the site by: locating the majority of the major earthworks in areas not mapped as being native vegetation and focusing on areas with lower value threatened species habitat; understanding that the existing native vegetation patches are not contiguous across the site; and by protecting the largest area of high value native vegetation on proposed Lot 12.
Dr MacDonald therefore concludes that the potential loss of and impact to assessed biodiversity values on the site, is unavoidable and necessary to not constrain development that is zoned permissible on the site.
Dr Henderson, however, considers that there are better alternative lot design options that would protect vegetation mapped with biodiversity values, particularly associated with proposed Lot 17. She explains that her proposed design option three (3) and modified option three, explored in the expert report (Exhibit 6), suggests that a reduction in area of proposed Lot 17, would result in less filling that preserves a greater area of native vegetation with biodiversity values. These alternative design options consequentially avoid and minimise impact on biodiversity values on the site, and which would not necessarily constrain future development on the site. She presented and described to the Court three possible alternative design options for proposed Lot 17, which seek to minimise impact on biodiversity values.
She does not accept that sufficient consideration has been given to effectively minimise or avoid impact to biodiversity values on proposed Lot 17, particularly because the proposal seeks to substantially fill almost the entire area of proposed Lot 17, which will be retained by a high wall for almost the full width of the proposed lot.
Dr MacDonald accepted in oral evidence that modified option three (Exhibit 6), as suggested by Dr Henderson, would retain a greater area of native vegetation with mapped biodiversity value on proposed Lot 17. He provided no evidence to support his assessment that a smaller surface area of proposed Lot 17 would not be economically viable, and to his knowledge an alternative design of Lot 17 was not explored in any detail in the creation of the subdivision plan.
Upon questioning from the Court, the applicant's engineering and ecological experts both agreed that they did not consider in any detail an amended areal dimension of proposed Lot 17. They agree a smaller area of Lot 17 would result in retaining a greater area of native vegetation, and reduce impact on biodiversity values. They also agree, as explained in the BDAR, that the constraint on the dimensions of proposed Lot 17 is primarily related to its potential developable area, consistent with the industrial use, as zoned.
During the onsite view at the start of the hearing, we observed that the slope of the land adjacent to Ropes Creek is steep to the north and gentler to the south. This area forms part of what is described in the BDAR as watercourse vegetation. The area of proposed Lot 17, on the northern slope from the Creek appears to encroach substantially into the vegetated watercourse area, and due to the significant gradient, will require a substantial retaining wall. The southern area from the Creek is intended to essentially remain and be revegetated to form proposed Lot 16.
Based on assessment of the evidence of the experts, together with the description in the BDAR, other supporting documents/plans and the Court's observations made on the site visit, it appears that the applicant has not put sufficient effort to first address the loss of and impact on biodiversity values, particularly due to the proposed filling to create Lot 17. The approach adopted by the applicant does not reasonably consider the environmental constraints of the site, presence of native vegetation with biodiversity values, and is therefore inconsistent with s 6.4 of the BC Act. The applicant has not first sought to avoid or minimise the impact to biodiversity values, and instead has placed too much emphasis on offsetting the impact.
When directly asked by the Court, Mr Tweedie explained that there are no engineering constraints that would limit the adoption of a modified areal dimension of proposed Lot 17. He explained that there are however likely economic constraints to adopting this option as it severely constrains the area and potential use as an industrial area of proposed Lot 17.
Based on the evidence before the Court, we accept that the options explored by Ms Henderson, among other possible scenarios, to reconfigure the dimensions of proposed Lot 17 are reasonable considerations that have not been sufficiently explored in the BDAR to avoid or minimise the impact on biodiversity values at this site. Without sufficient detail in the BDAR or evidence provided to the Court, we are unable to be satisfied that the application under appeal has addressed s 6.4 of the BC Act.
Mr Galasso offered to the Court, if so minded, the option to amend the proposed development to adjust the dimensional area of proposed Lot 17, consistent with modified option three. He accepts there are no plans or documents (including in the BDAR) before the Court in evidence to support an amended subdivision plan showing areal changes to proposed Lot 17.
Whilst the Court acknowledges that the applicant has offered this opportunity to further avoid and/or minimise impact on biodiversity values within proposed Lot 17 by the consideration of modified option 3, it must be recognised that this is not the application before the Court under appeal. It is incumbent on the Court to assess the DA based on the evidence that supports the application, pursuant to s 4.15 of the EPA Act and Schedule 2 of the EPA Reg.
The Court is required to assess the evidence relating to the application under appeal, rather than a hypothetical better outcome. This was also considered in Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397 by Adam AC, whom at [161], affirms that it is correct to assess the proposal before the Court and not whether it could be improved.
Pursuant to cl 50 of the EPA Reg, the application must be accompanied by relevant information and documents. For the amended DA under appeal, the relevant documents must address the biodiversity requirements of the BC Act, which are specified in Part 1 of Schedule 1 to satisfy the Court in granting consent. We therefore rely on the information and documents that support the application before the Court.
We accept the expert evidence that the BDAR has accurately calculated the biodiversity offset credits that would be required to be retired by the proposed loss of native vegetation on the site. It is also accepted that in addition to the proposed retirement of credits, as calculated in the BDAR, the applicant proposes to separately apply for a BSA or rely on a VMP over proposed Lot 16, which would effectively create an area that is vegetated with native species lost from the proposed creation of the proposed subdivided lots. We also accept that there is no loss of native vegetation from proposed on Lot 12, which is zoned E2.
We, however, do not accept that the proposed development has sufficiently or firstly taken the steps to avoid or minimise the impact to biodiversity values on the site, due to the extensive clearing of native vegetation with biodiversity values to create proposed Lots 13 and 17. We have relevantly considered the avoidance and minimisation strategies described in the BDAR, and as explained in oral evidence by the ecological and engineering experts. We are not satisfied that the proposed development has sufficiently avoided or minimised the impact on biodiversity values, as required in ss 1.3 and 6.4 of the BC Act.
The BDAR appears to rely on the establishment of a BSS through a BSA or alternatively a VMP, in the southern portion of the site (proposed Lot 16), rather than appropriately and firstly considering other possible lot design options that would avoid or minimise the impact on biodiversity values.
The experts agree that the native vegetation that is proposed to be cleared on the site is of a moderate condition, and that the native vegetation cleared to create proposed Lot 13 and 17 is mapped as having biodiversity value. They also agree that a different dimensional area of proposed Lot 17 could have significantly reduced the loss of native vegetation, which would have minimised and avoided impact on biodiversity values.
Although it is accepted that there are pockets of native vegetation located across the site, the native vegetation within and adjacent to proposed Lots 13 and 17 is a relevant concern to the Court with regards to loss of biodiversity values. As shown in the BDAR, almost the entire area of proposed Lot 17 is covered by native vegetation with biodiversity values. Apart from proposed Lots 12 and 13, it is the only other area on the site where biodiversity values are mapped. There is a substantial loss of biodiversity values.
We are not satisfied by the steps set out in the BDAR, and as explained to the Court, that the proposed development has taken sufficient and appropriate steps and measures to firstly avoid or minimise the biodiversity impact on biodiversity values, pursuant to s 6.12 of the BC Act.
The requirement to protect where possible, by avoidance or minimisation the loss of existing fragments of native (remnant) vegetation, particularly that with biodiversity values is consistent with the approach of the Eastern Creek Precinct Plan, which in Section 8.1 states "Linking a fragmented landscape by establishing and protecting existing corridors between remnants of bushland is considered a high conservation priority in western Sydney."
This Plan shows areas having a medium ecological value being partially located within proposed Lot 17, and which are sought to be cleared by the application. It is accepted that the proposed development does not seek to clear vegetation that is described in the Plan as forming part of the watercourse habitat of Ropes Creek or in a 'Conservation Area'. The BDAR does however describe the vegetation to be cleared on proposed Lot 17 as being 'watercourse vegetation'.
We are not satisfied that the proposed development has taken the steps to sufficiently avoid or minimise the loss of native vegetation with biodiversity values, pursuant to s 6.4 of the BC Act. Based on this assessment, we are not required to consider further the proposed retirement of biodiversity offset credits, nor the reliance on creation of a BSS through a BSA or VMP.
The proposed development does not satisfy the purpose of the BC Act, described in s 1.3(k).
In consideration of the evidence, we also assess that there are likely environmental impacts from the proposed development on the natural environment, therefore s 4.15(1)(b) of the EPA Act is not addressed.
Further to this, we are not satisfied that the proposed development is consistent with the objects of the EPA Act described in s 1.3(b), which seeks 'to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment'. The applicant has rightly considered the economic aspects of the proposed development. However, it is apparent to the Court that there is insufficient environmental consideration, which is not consistent with facilitating ecologically sustainable development.
We also assess that the proposed development does not satisfy s 1.3(e) of the EPA Act, 'to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats.' There is an unnecessary loss of native vegetation with biodiversity value, which could be protected.