Joint Venture Pty Ltd v Mid-Coast Council - [2021] NSWLEC 1138 - NSWLEC 2020 case summary — Zoe

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Joint Venture Pty Ltd v Mid-Coast Council

[2021] NSWLEC 1138

Land and Environment Court (NSW)|2020-10-13

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-10-13

Catchwords

[2004] NSWLEC 399 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116
[2018] NSWLEC 118 Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146 Parkes v Byron Shire Council (2003) 129 LGERA 156
[2003] NSWLEC 237 Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340
[2006] NSWCA 122 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80

Source

Original judgment source is linked above.

Catchwords

[2004] NSWLEC 399 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116[2018] NSWLEC 118 Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146 Parkes v Byron Shire Council (2003) 129 LGERA 156[2003] NSWLEC 237 Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340[2006] NSWCA 122 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80[2005] NSWLEC 191 Shellharbour City Council v Minister for Planning (2012) 187 LGERA 427[2001] NSWCA 480 Weal v Bathurst City Council (2000) 111 LGERA 181

Judgment (34 paragraphs)

[1]

Parkes v Byron Shire Council (2003) 129 LGERA 156; [2003] NSWLEC 237 Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340; [2006] NSWCA 122 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Shellharbour City Council v Minister for Planning (2012) 187 LGERA 427; [2012] NSWLEC 29 Site Plus Pty Ltd v Wollongong City Council [2014] NSWLEC 125 Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106 Wakefield Planning Pty Ltd v Yass Valley Council [2014] NSWLEC 1131 Warringah Shire Council v Punnett and Associates Pty Ltd (2001) 122 LGERA 1; [2001] NSWCA 480 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 Zhiva Living Dural Pty Ltd v Hornsby Shire Council (2020) 242 LGERA 280; [2020] NSWCA 180 Texts Cited: 'Managing Land Contamination: Planning Guidelines SEPP 55- Remediation of Land', NSW Department of Urban Affairs and Planning & Environmental Protection Authority Biodiversity Assessment Method Operational Manual 2017, NSW Department of Planning, Industry and Environment Greater Taree Development Control Plan 2010 Macquarie Dictionary, 8th edition Category: Principal judgment Parties: Joint Venture Pty Ltd (Applicant) Mid-Coast Council (Respondent) Representation: Counsel: T Robertson SC (Applicant) H Irish (Respondent)

[3]

Judgment

COMMISSIONER: The Applicant, Joint Venture Pty Ltd, appeals to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) following the refusal of its development application (DA99/2019) by Mid-Coast Council. The development application seeks consent for the development of Lot 3 DP 242332, 303 Blackhead Road, Tallwoods for the purpose of a manufactured home estate (MHE) and ancillary buildings and works.
At the time of the hearing the development application had been amended, by leave of the Court, on a number of occasions. The amendments sought to address the Respondent's contentions and the evidence of the various experts. During the course of the hearing the Applicant was further granted leave to amend their development to reduce the number of MHE sites, with a subsequent increase in the number of trees retained on the subject site.
The development for which consent is now sought by the Applicant in the proceedings is as follows:

Demolition of existing dwelling;
Clearing and stripping of the property and tree removal;
Cut and fill and bulk earthworks (Exhibit D);
Construction of 176 long term residential MHE sites;
Site landscaping;
Internal access roads;
Car parking/ caravan storage;
Community centre containing games room, library, theatre, dining area, office and lounge;
Outdoor swimming pool;
Bowling green;
Water quality ponds;
A men's shed; and
A manager's residence.

The development is proposed to be undertaken in four stages: Stage 1 (i) Site numbers 2 to 48 including (the) Community Centre, bowling green, pool, men's shed and office/ mangers (sic) residence; and (ii) Partially complete earthworks and construct water quality ponds; (iii) Complete open space and perimeter landscaping prior to approval to operate Stage 2 Stage 2 (i) site numbers 51 to 103 (ii) complete water quality ponds Stage 3 (i) site numbers 104-161 Stage 4 (i) site numbers 162-197.
I note that due to the amendments to the proposed development, including the deletion of sites, the site numbers do not run concurrently.
Notwithstanding the amendments to the development application, the Respondent maintains that the development warrants refusal on the following grounds: 1. Permissibility: The proposed development, as amended is on land that is partly within the RE1 - Public Recreation zone under the Greater Taree Local Environmental Plan 2010 (LEP 2010). The proposed development within the RE1 zoned land forms part of the MHE and is not permissible under LEP 2010 in that zone. Further, the development is contrary to cl 6 and Schedule 2 (6) of State Environmental Planning Policy No 36 -Manufactured Home Estates (SEPP 36); 2. Biodiversity Assessment: The Biodiversity Development Assessment Report (BDAR) does not comply with the requirements of the Biodiversity Conservation Act 2016 (BC Act); 3. SEPP 36: That having regard to the provisions of cl 9 (1)(b) and (c) and 9(2)(c) of SEPP 36, the Court would not be satisfied that the proposed development warrants approval; 4. Character: The proposed intensification of residential development is out of character with adjoining development; 5. Design: The design and layout of the MHE will result in a poor quality of urban setting for the future occupants; 6. Visual Impact: The proposed development will have an adverse visual impact on the adjoining and proximate properties who overlook the subject site; 7. Public Transport: The subject site is poorly serviced by public transport services; 8. Flora and Fauna Impacts: The proposed development will have an unacceptable impact on significant vegetation and wildlife habitat on the subject site, including that of threatened species; 9. Overdevelopment: The density of the proposed development is an overdevelopment of the subject site and will result in poor planning, social and environmental outcomes; 10. Future sports fields: The proposed utilisation of the RE 1 zoned land within the subject site for facilities, infrastructure and purposes associated with the MHE will frustrate the development of the proposed public recreation facilities to serve the community of Tallwoods; 11. Draft LEP: That Mid-Coast Council has a draft Local Environmental Plan (Greater Taree LEP 2010) which would (if made) have the effect of prohibiting the proposal. The Court should give weight to the draft LEP in the determination of the application; 12. Public Interest: That having regard to the matters raised by the significant number of objections that have been received in regard to the proposed development, the grant of consent would be contrary to the public interest.

[7]

Public Submissions

In determining the development application, the Court is to take into consideration any submissions made. The submissions received by Mid Coast Council since the lodgement of the development application were tendered in the proceedings as part of the Respondent's evidence. I have read and considered those submissions.
The development application, in its original form was notified in accordance with the provisions of Greater Taree Development Control Plan 2010 (DCP 2010) in 2018. The notification period resulted in 112 submissions. These submissions are included in the evidence before the Court. These objections can be summarised as follows:

The zoning for the subject site does not allow for MHE's;
The proposed development is and overdevelopment and excessive in density;
The form of proposed development is out of character with the area;
The proposed development will increase traffic, traffic congestion and provides inadequate parking;
There is insufficient public transport in the locality to support the development;
Tallwoods already has adequate affordable housing. There is no demonstrated need for the development;
The proposed development is not in the public interest;
The requirements of SEPP 36 are not met by the development;
The density of the development is not in accordance with the earlier Voluntary Planning Agreement (VPA);
The area has inadequate medical facilities to service the proposed development;
The proposed development will: - have social impacts; - have inappropriate visual impacts; - impact on wildlife; - create noise impacts for the Tallwoods Village; - destroy the amenity of the area; - negatively affect water and sewer infrastructure; - set a negative precedent for the area; - increase the velocity of stormwater which flows into the adjacent creek and wetland; and - reduce the tourism appeal of the area.
The proposed development has inadequate bushfire protection measures and emergency management measures;
The proposed development is a "retirement village by stealth".

On 5 February 2020 the Applicant was granted leave by the Court to amend their development application. These amended plans were notified in accordance with DCP 2010. This period of notification resulted in 42 submissions. These submissions are included in the evidence before the Court. Many of the issues raised mirror those summarised at paragraph [17]. The additional concerns raised by the objections can be summarised as follows:

The amendments are insufficient to address the concerns of the community.
The staging of the development will result in the site being a construction zone for ten years.
The existing public infrastructure in the locality is 'struggling to keep pace' and does not have capacity for this development.
The MFE will degrade the quality and prestige of the area.
The proposal does not make adequate provision for Koala movement.
Having witnessed the 2019/2020 bushfire season the density and close spacing of the dwellings, the limited fire protection proposed and the limited routes for evacuation make the development a potential disaster.
Having a bowling green in the community will take away from the community facility at Hallidays Point.
A standard residential subdivision should be pursued.
The residents of the MFE will, unfairly, not pay their proportion of the Council rate burden.
That the developers of the MFE are not bound by the building/design code that covers Tallwoods Village. The objector argues that this will impact on the overall quality and presentation of the existing village and its relative prestige.
There has been no assessment of construction noise and its impact on adjoining residents.
The development will result in a 40% increase in population in Tallwoods Village over a small footprint.
The layout of the development fails to retain adequate significant trees.
The applicant's reliance on MHE's being an innominate use in the R1 General Residential zone should not be accepted.
The feasibility, and development potential, of the redevelopment of 323 Blackhead Rd (adjacent property to the east of the subject site) would be detrimentally affected by the approval of the proposed development. This is because the design of the development of 323 Blackhead Rd, and the VPA, was done in concert with the subject site. The development of the two sites rely on a common road network. The submission argues that the owner of 323 Backhead Road would be financially impacted by the approval of the subject development application.

On 31 July 2020 the Applicant was granted leave by the Court to amend their development application. These amended plans were notified in accordance with DCP 2010. This period of notification resulted in 8 submissions. These submissions are included in the evidence before the Court. These further objections can be summarised as follows:

The amendments to the development do not address the concerns raised by the community in their earlier submissions.
The cumulative effect of this development, along with the approved development and those in construction is unwanted by the community.
Approval of the development, in the proposed location, would 'grossly disrespect the commitment, investment and pride shown by the existing Tallwoods Village residents in the appearance of their homes and the Tallwoods Village environment'. (Exhibit 3)

During the hearing provision was made for a number of objectors to address the Court directly and give evidence of their concerns in relation to the proposed development. A collation of their written notes was tendered by the Respondent as Exhibit 1. These objections emphasised many of the submissions summarised in the proceeding. In addition, the following objections were made:

That if the subject site was approved as a conventional subdivision of approximately 80 lots the income to Mid Coast Council arising from the development would be substantially more (developer contributions and rates) than that which will follow an approval of the site for an MFE.
That the proposal provides a deficiency in parking, which will result in parking demand overflowing into the adjacent streets.
That there is no demand for the development. The residents opined that there are currently 526 MFE sites approved within proximity of the subject site. An additional 184 sites on the subject site would result in 710 sites in total. The residents argue that there is no demand for further MFE development.
That despite over four years of resident's objection to the development of the site as an MFE, the Applicant has not sought to consult with, or respond to, the concerns of the residents.
That the community's concerns cannot be addressed by minor changes or 'tweaks' to the development. The site is unsuitable for the development proposed and will negatively impact on the character of the area.
The Applicant's innominate use interpretation of LEP 2010 is incorrect, the development is prohibited in the R1 General Residential zone.
There is a heightened risk of COVID-19 in a densely populated environment such as an MHE.
That the draft Local Environmental Plan: Greater Taree LEP 2010, which makes MHE prohibited, represents the strategic intent of the Council and the community and should be given significant weight by the Court.

[9]

Permissibility of the development in the land zoned RE1 Public Recreation

The zoning table for the RE1 -Public Recreation zone is as follows: 2 Permitted without consent Environmental protection works; Extensive agriculture; Flood mitigation works 3 Permitted with consent Biosolids treatment facilities; Boat building and repair facilities; Boat launching ramps; Boat sheds; Building identification signs; Camping grounds; Car parks; Caravan parks; Cemeteries; Charter and tourism boating facilities; Child care centres; Community facilities; Crematoria; Depots; Eco-tourist facilities; Educational establishments; Electricity generating works; Emergency services facilities; Entertainment facilities; Environmental facilities; Extractive industries; Helipads; Information and education facilities; Jetties; Kiosks; Marinas; Markets; Mooring pens; Passenger transport facilities; Public administration buildings; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Research stations; Respite day care centres; Restaurants or cafes; Roads; Sewage treatment plants; Waste or resource management facilities; Water recreation structures; Water recycling facilities; Water supply systems; Wharf or boating facilities 4 Prohibited Any development not specified in item 2 or 3
In this form the zoning table provides that any nominate uses, not listed under 2 or 3, are prohibited. The RE1 -Public Recreation zoning table has the effect of prohibiting innominate uses.
The particulars of the Respondent's contention state that the part of the proposed development located within the RE1-Public Recreation zone is prohibited under LEP 2010 as it forms part of the MHE which is not a permissible use under the land use table. The contention further argues that the use of the RE1 -Public Recreation zone land for the purposes of a MHE is inconsistent with the objectives of the RE1 Public Recreation zone.
The Respondent argues that the following components of the proposed development with the RE1 -Public Recreation zone land, being infrastructure directly associated with the proposed MHE, are prohibited development:

An asset protection zone (APZ) for the purpose of the Community Centre;
Part of Roads No.2, 6, 7 and 8;
Outdoor bowling green;
Men's shed;
Twenty-two (22) parking spaces; and
Five Water Quality Detention Basins and related infrastructure associated with stormwater management of the whole manufactured home estate. (Respondent's written submissions 10 December 2020)

The Respondent argues that the community amenities, roads, car parking spaces and Water Quality Detention Basins and related infrastructure associated with the proposed manufactured home estate are required to be wholly located within the part of the subject site zoned R1-General Residential to be permissible. On this basis the Respondent argues the development is prohibited and cannot be granted consent by the Court.
In the Applicant's written submissions Mr Robertson argues that the development proposed on the RE1 -Public Recreation zone land relies on three sources of power. Firstly, that the development is permissible under LEP 2010; secondly, that the stormwater ponds are permissible under State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) and finally that the totality of the development is permissible under SEPP 36.
Mr Robertson's arguments on the first ground are as follows: '… the land use table for the RE1- Public Recreation zone in LEP 2010 permits with consent car parks, roads, recreation facilities (indoor) and (outdoor) and environmental facilities, and environmental protection works without consent.' He argues that the works within the RE1 - Public Recreation zone for which consent is sought can be defined as the following uses under LEP 2010:

Car parking spaces adjacent Road 2 - 'car parks';
Road 2, part Road 6, part Road 7, Part Road 8 - 'roads';
Bowling Green - 'recreation facility (outdoor)';
Men's Shed - 'recreation facility (indoor)';
Water quality basins - 'environmental facilities'; and
Rehabilitation works in the south - west corner of the site - 'environmental protection works'. (Applicants Written Submissions dated 28 August 2020).

Mr Robertson provides the following additional explanation of the source of permissibility for the Men's shed use: "Both the bowling green and the men's shed are typical examples of recreational activities that are permissible in an RE1 [Public Recreation] zone. There is nothing in the land use table (putting aside the objectives, which are irrelevant to the question of permissibility) that suggests that these activities must be 'public' or 'community'. They may be, but neither is a condition for permissibility. A recreation facility (indoor) is defined to mean, relevantly: 'A building or place used predominately for indoor recreation, whether or not operated for the purpose of gain, …' There follows a list of inclusive but not exhaustive examples, largely of a sporting kind. However, the exhaustive part of the definition describes the use 'predominately for indoor recreation'. This kind of definition is not constrained by the types of recreation; [citations omitted], and hence is not restricted to sporting type uses. Recreation may be a pastime, a diversion or other resource affording relaxation and enjoyment: Macquarie Dictionary, meaning 2; [citations omitted]. "Men's shed" is defined in the Macquarie Dictionary as: "A place in which men can congregate, usually to engage in community activities involving skills which traditionally men had acquired, such as woodwork, metal work, repairs and restoration". These activities are pastimes or diversions affording relaxation and enjoyment, and the men's shed is therefore permissible in the RE1 [Public Recreation] zone." (Applicants Written Submissions dated 28 August 2020)
The RE1 -Public Recreation zoning table is formatted in such a way that uses not contained in the categories of 'permitted without consent' and 'permitted with consent' form innominate prohibited uses. It is Mr Robertson's submission that as each of these uses are permissible with consent in the zone, they cannot be prohibited: Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [50] (Botany v Pet Carriers). He also relies on the reasoning of the Court in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [66] (Ballina v Palm Lakes).
In addition to the preceding, Mr Robertson argues that the water quality basins (sediment ponds and detention basins) are permissible pursuant to cl 111A of ISEPP. That provision states: 'Development for the purpose of a stormwater management system may be carried out by any person with consent on any land'. A stormwater management system is defined by ISEPP as: stormwater management system means - (a) works for the collection, detention, harvesting, distribution or discharge of stormwater (such as channels, aqueducts, pipes, drainage works, embankments, detention basins and pumping stations), and (b) stormwater quality control systems (such as waste entrapment facilities, artificial wetlands, sediment ponds and riparian management), and (c) stormwater reuse schemes.
Mr Robertson submits that the water quality basins proposed in the RE1- Public Recreation zone are therefore permissible as they fall within the definition of stormwater management system, which pursuant to cl 111A of ISEPP, are works permissible in any zone. He notes that as a result of cl 8(1) of ISEPP, and cl 1.9(1) of LEP 2010, the provisions of ISEPP override the provisions of LEP 2010.

Road Nos. 2,6,7 and 8 are on both sides of the zone boundary but serve the same purpose, and the car parking spaces are for that purpose (the MHE).
The bowling green and men's shed are facilities required to be provided by the LG Regulation. They are an integral part of the MHE.
The south west corner of the site is being rehabilitated for the purpose the provision of recreational areas within the MHE, along with the bowling green and men's shed.
That the community facilities are not intended for general public usage, and in fact access is to be controlled through the POM and signage indicating access is restricted and available only to village residents.
That the water quality basins and related infrastructure are identified in the Applicant's Water Sensitive Design Strategy as 'for a proposed manufactured home estate' encompassing the whole 10.12ha of the subject site. (Respondents written submissions 10 December 2020)

Ms Irish submits that the activities on the RE1-Public Recreation zoned land are not proposed to be carried out regardless of the development of the remaining works on the R1 General Residential zoned, or independent of them. Rather, she argues, the subject site has the single use of an MHE, straddling the two zones. On this reasoning Ms Irish concludes that the use of the RE1- Public Recreation is a subset of the broader use of the subject site for an MHE. As an MHE is an innominate prohibited use in the RE1- Public Recreation zone, the works proposed on the RE1 Public Recreation zoned land, are prohibited. On this reasoning Ms Irish concludes that the works in the RE1 Public Recreation zoned land are not permissible under LEP 2010 and the Applicant's first source of power fails.
Further, Ms Irish submits that the precedent relied on by the Applicant in Argyopoulos v Canterbury Municipal Council (1988) 66 LGERA 202 (Argyropoulos v Canterbury Council), cited in Ballina v Palm Lakes, is distinguished from the current application on the facts of the case and on the basis that the works on the RE1-Public Recreation zone land are not a 'mere accessway that can be characterised as being for the nominate permissible purpose of a road..'. (Respondents written submissions 10 December 2020)
In response to the Applicant's argument that the water quality basins are works on the RE1-Public Recreation zoned land that are permissible under the provisions of ISEPP, Ms Irish submits that ISEPP does not 'override' other environmental planning instruments. She references cl 8(1) of ISEPP, namely: 8 Relationship to other environmental planning instruments Note - This clause is subject to section 3.28(4) of the Act. (1) Except as provided by subclause (2), if there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. Note - Subclause (1) does not prevent a local environmental plan from making provision about development of a kind specified in Part 3 in a particular zone if the provisions of this Policy dealing with development of that kind do not apply in that zone. (2) Except as provided by subclauses (3) and (4), if there is an inconsistency between a provision of this Policy and any of the following provisions of another environmental planning instrument, the provision of the other instrument prevails to the extent of the inconsistency - (a) clauses 10, 11 and 19 of State Environmental Planning Policy (Coastal Management) 2018, (b) all of the provisions of State Environmental Planning Policy (State Significant Precincts) 2005.
It is Ms Irish's submission that: firstly, an inconsistency between LEP 2010 and ISEPP is required; and secondly that ISEPP would only prevail for the extent of the inconsistency. She concludes that the Applicant has not established such an inconsistency and that the Applicant's second source of power fails.
In relation to the Applicant's third source of permissibility, the Respondent argues that the RE1-Public Recreation zone land is excluded from land where development for the purposes of an MHE may be carried out pursuant to SEPP 36. The Council argues that the effect of cl 6 of SEPP 36, and Schedule 2 - Categories of Excluded Land, is that the proposed location of facilities associated with and for the use of residents of the MHE are specifically excluded from operation of SEPP 36.

[10]

Findings

The task of correctly categorising the purpose, or purposes, of a particular use or development application is a threshold question in determining whether a particular development application is capable of lawful determination. If the Court accepts the submission of the Respondent, that the proposed uses listed at [27] are prohibited, the current development application is an ineffective application and the Court would have no power to approve the development sought (s 4.13 of the EPA Act).
In addition to the cases referenced by the parties, Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160 ('Friends of Pryor Park') is relevant. The approach outlined in Friends of Pryor Park is that once a determination of permissibility is made by categorising a purpose, the fact that it may also fall within another purpose is legally irrelevant. The relevant passage of the decision is extracted below (at page 5): "The respondent's competing argument is that, where as in the present case, the proposed development falls within the permissible purpose of community facilities, development consent may be legally granted to the proposed development of that purpose and the fact that the development also falls within another purpose, namely childcare centre, is legally irrelevant to the validity of the development consent granted for the permissible purpose. … In my judgement the Respondent's argument is correct and is clearly to be preferred to the Applicant's competing argument."
The decision of Preston CJ in Pet Carriers at [32] adopts this approach and states: "In this situation, the question of characterisation is to be answered by reference to the particular terms of the environmental planning instrument and the land use table for the zone in which the development is to be carried out. The inquiry is whether the development can be characterised as being for a purpose that the instrument identifies as being permissible with consent and not for a purpose that the instrument identifies as being permissible without consent or as being prohibited. The focus of this inquiry is whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument. It is not to determine, at large, the category of purpose into which the development should be seen as falling and to formulate a description of that category. The latter task may be required when determining whether a development is an existing use under the EPA Act: see C B Investments Pty Ltd v Colo Shire Council at 280. But it is not the task to be undertaken when determining whether development is for a purpose that may be carried out with consent."
Further in Ballina v Palm Lake Preston CJ states at [66]: "66 I find that the Council has not established that the Commissioner erred in characterising the access way as being a road in either of the two ways alleged. The Commissioner's approach to determine first whether the access way could be characterised as being for the nominate permissible development of road (a development specified in item 3 of the land use table for the RU2 Zone) was correct. If the accessway could be characterised as being for the nominate permissible development of road, it would be permissible, irrespective of whether it could also be characterised as being a seniors housing development."
I have adopted the approach detailed in the preceding judgments in these proceedings.
The definition of 'road' in LEP 2010 is: 'road means a public road or a private road within the meaning of the Roads Act 1993, and includes a classified road'.
Consistent with the decision of the Court in Argyropoulos v Canterbury Council and Ballina v Palm Lake at [58] - [68] I am satisfied that the extent of Road 2, 6, 7, and 8 contained with the land zoned RE1 Public Recreation are characterised as being for the purpose of 'roads', a nominate permissible use in the zone under LEP 2010.
On the same reasoning, I adopt Mr Robertson's submissions at [29] that the car parking adjacent Road 2 is characterised as being for the permissible purpose of 'car parks', a nominate permissible use in the RE 1 Public Recreation zone under LEP 2010.
I am satisfied that the rehabilitation works proposed in the south west corner of the site are for the purpose of rehabilitation of that land and fall within the definition of environmental protection works contained in LEP 2010. That definition is: environmental protection works means works associated with the rehabilitation of land towards its natural state or any work to protect land from environmental degradation, and includes bush regeneration works, wetland protection works, erosion protection works, dune restoration works and the like, but does not include coastal protection works.
I find the rehabilitation works proposed on the RE1 Public Recreation land are characterised as being for the purpose of 'environmental protection works', a nominate use, permitted without consent, in the RE 1 Public Recreation zone under LEP 2010.
Further, by reference to the Vegetation Management Plan (VMP) (Exhibit L), I am satisfied that the section of land proposed to be managed as an Inner Protection Area (IPA) adjacent road 2 is for the purpose of rehabilitation and protection of that land. Figure 2.1 of the VMP nominates this area as: Wildlife Corridor and Vegetation Rehabilitation Area. I am satisfied these works are characterised as being for the purpose of 'environmental protection works', a nominate use, permitted without consent, in the RE 1 Public Recreation zone under LEP 2010.
I accept Mr Robertson's submission that both the bowling green and men's shed are examples of uses for the purpose of recreation facility. In interpreting the definition of recreation facility outdoor I note it states that it 'means a place used for predominately for outdoor recreation' after which the definition provides a list of examples that are illustrative of that use, but not exhaustive (illustrated by the use of the words 'or any other building or place of a like character used for outdoor recreation' in the definition): Parkes v Byron Shire Council (2003) 129 LGERA 156 [2003] NSWLEC 237 at [11]. Given the form of the definition I am satisfied that a bowling green is a place used predominately for outdoor recreation and is of a character consistent with the examples provided within the definition (in particular 'lawn bowling green'). I find that the bowling green proposed on the RE1 Public Recreation land is characterised as being for the permissible purpose of 'recreation facility (outdoor)', a nominate permissible use in the RE 1 Public Recreation zone under LEP 2010.
On the same reasoning, I am satisfied that the men's shed is a building or place of a like character to the illustrative list of uses contained in the definition of 'recreation facility (indoor)' under LEP 2010. That definition is as follows: recreation facility (indoor) means a building or place used predominantly for indoor recreation, whether or not operated for the purposes of gain, including a squash court, indoor swimming pool, gymnasium, table tennis centre, health studio, bowling alley, ice rink or any other building or place of a like character used for indoor recreation, but does not include an entertainment facility, a recreation facility (major) or a registered club.
I am satisfied that the phase 'of a like character' has its ordinary meaning; being things which are similar. I adopt Mr Robertson's submissions at [30] that the men's shed is a form of indoor recreational activity of a similar character to those listed in the definition. I find that men's shed is characterised as being for the permissible purpose of 'recreation facility (indoor)', a nominate permissible use in the zone under LEP 2010.
However, I do not accept Mr Robertson's submission that the Water quality detention basins proposed in the RE1 Public Recreation land fall within the definition of Environmental Facility under LEP 2010 or are for that purpose. Environmental Facility is defined in LEP 2010 as follows: environmental facility means a building or place that provides for the recreational use or scientific study of natural systems, and includes walking tracks, seating, shelters, board walks, observation decks, bird hides or the like, and associated display structures.
I am not persuaded that the five water quality basins proposed to be constructed on the RE1 Public Recreation Land are for the purpose of providing for the recreational use or scientific study of natural systems. Rather, as described in the Water Sensitive Design Strategy reports (Exhibit J and V), they are required to address changes to stormwater quantity and quality from the development of the proposed MHE. The objective of these water quality basins is nominated in these reports as: "The objective for water quality adopted is: - Post development loads of Gross Pollutants are to be reduced to 90% and TSS, TN and TP are to be reduced to less than or equal to pre-developed pollutant loads (ie. Neutral or beneficial effect on water quality) Additionally, the objectives for water quantity are: - Attenuate post development peak discharges to maintain existing flows for all storm events up to and including the 100 year ARI rainfall event." (Exhibit J)
Given this finding it is necessary to consider the submissions of the Applicant that the water quality basins are permissible pursuant to cl 111A of ISEPP. Relevantly, cl 8(1) of ISEPP provides: 8 Relationship to other environmental planning instruments (1) Except as provided by subclause (2), if there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. Note - Subclause (1) does not prevent a local environmental plan from making provision about development of a kind specified in Part 3 in a particular zone if the provisions of this Policy dealing with development of that kind do not apply in that zone.
The EPA Act, at s 3.28(1), provides that: 3.28 Inconsistency between instruments (cf previous s 36) (1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided - (a) there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy, and (b) (Repealed) (c) the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind.
I note that Mr Robertson asserts that ISEPP overrides the provisions of LEP 2010 'to the extent of any inconsistency'. As noted in Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106 at [6] it is important to identify with precision the nature and scope of any inconsistency between environmental planning instruments.
In this matter I am satisfied that there is inconsistency between the provisions of LEP 2010 and ISEPP on the following reasoning: 1. As a result of the zoning table for the RE1 Public Recreation Zone work for the purpose of stormwater management systems (an innominate use) is prohibited as it is a use or purpose not nominated under 'Permitted without consent' nor 'permitted with consent'. 2. A stormwater management system is permissible under ISEPP: cl 111A. 3. Therefore, under LEP 2010 the works are prohibited, but are permissible under ISEPP: the instruments are inconsistent.
Applying cl 8(1) of ISEPP, its provisions prevail over LEP 2010 to the extent of the inconsistency. As such I am satisfied that the water quality basins are for the purpose of a stormwater management system and are permissible with consent pursuant to cl 111A of ISEPP.
In conclusion I find that the works proposed by the Applicant, on the portion of the subject land which is zoned RE 1 Public Recreation, are permissible and capable of approval, subject to assessment under s 4.15 of the EPA Act.

[11]

Permissibility of the development in the land zoned R1 General Residential

The zoning table for the R1 - General Residential Zone is as follows: 2 Permitted without consent Home occupations 3 Permitted with consent Attached dwellings; Boarding houses; Centre-based child care facilities; Community facilities; Dwelling houses; Group homes; Home businesses; Home industries; Hostels; Multi dwelling housing; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Residential flat buildings; Respite day care centres; Restaurants or cafes; Roads; Semi-detached dwellings; Seniors housing; Shop top housing; Tank-based aquaculture; Any other development not specified in item 2 or 4 4 Prohibited Air transport facilities; Airstrips; Agriculture; Amusement centres; Animal boarding or training establishments; Boat building and repair facilities; Boat sheds; Camping grounds; Caravan parks; Charter and tourism boating facilities; Commercial premises; Correctional centres; Depots; Eco-tourist facilities; Electricity generating works; Entertainment facilities; Farm buildings; Forestry; Freight transport facilities; Function centres; Heavy industrial storage establishments; Helipads; Home occupations (sex services); Industrial training facilities; Industries; Liquid fuel depots; Marinas; Mooring pens; Mortuaries; Passenger transport facilities; Public administration buildings; Recreation facilities (major); Registered clubs; Rural industries; Rural workers' dwellings; Sex services premises; Storage premises; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Warehouse or distribution centres; Waste disposal facilities; Waste or resource management facilities; Wharf or boating facilities
In relation to permissibility of the proposed development on the R1 General Residential Land the Applicant's Statement of Environmental Effects (SEE) argues that MFE's are not defined in LEP 2010, and are therefore:

Firstly, an innominate use, which given the framing of the zoning table is a permitted use as the list of uses permitted with consent includes 'Any other development not specified in item 2 [Permitted with consent] or 4 [Prohibited]'; or
Secondly, characterised as 'multi dwelling housing' which is defined in LEP 2010 as: multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building; or
Finally, permissible by virtue of SEPP 36.

In relation to the permissibility of the proposed development under SEPP 36 the SEE states: "Manufactured home estates are defined in SEPP 36 - Manufactured Home Estates to mean 'land on which manufactured homes are, or are to be, erected'. A 'manufactured home' is defined in the same SEPP to mean: - 'a self-contained dwelling (that is a dwelling that includes at least 1 kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling: a) that comprises 1 or more major sections that are each constructed, and assembled away from the manufactured home estate and transported to the estate for installation on the estate, and b) that is not capable of being registered under the Traffic Act 1909, and includes any associated structure that form part of the dwelling' A Manufactured Home Estate is permissible development with the consent of Council in accordance with the provisions of the relevant zoning table and (sic) in the R1- General Residential zone." (Exhibit P, original emphasis)
Ms Irish submits that cl 6 of SEPP 36 (see [36]) operates to make MFE's permissible on any land where caravan parks are permissible. However, in the subject proceedings 'Caravan Parks' are a prohibited use in the R1 General Residential zone under LEP 2010. She argues that therefore SEPP 36 does not permit the proposed development to be carried out on the subject land.
A plain reading of cl 6 of SEPP 36 is that its provisions operate only where development for the purposes of a caravan park can be carried out. However, in the current proceedings caravan parks are a listed prohibited use in the R1 General Residential zone. I accept Ms Irish's submission that SEPP 36 does not provide permissibility for the proposed development on the R1 zoned land as a result of the exclusion under cl 6 of SEPP 36.
Despite this finding the first and second bases advanced for permissibility remain.

[13]

Findings

In Botany Bay City Council v Pet Carriers International Pty Limited [2013] NSWLEC 147 at [30] Preston CJ defines innominate uses as: 'An innominate purpose is one which the environmental planning instrument does not nominate by name as being within one of the three classifications, but rather identifies as falling within a particular classification by reason of it not being nominated in other classifications; it is development other than development in the other classifications. To be an innominate use, it must fall outside the scope of the uses defined within the relevant the land use table'.
It is plain from a view of the zoning table for the R1 General Residential zone that MHE, as a specific use, is not nominated in any classification (see [77]).
Applying Abret v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [67] and [68] the use must not be for a purpose that is prohibited. In the current proceedings I must therefore be satisfied that the use for which consent is sought is not for the purpose of caravan park, or another listed prohibited use.
LEP 2010 defines a caravan park, a prohibited use, as follows: caravan park means land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, installed or placed.
Relevantly, moveable dwellings are also defined in LEP 2010 as follows: moveable dwelling has the same meaning as in the Local Government Act 1993. Note - The term is defined as follows - moveable dwelling means - (a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or (b) a manufactured home, or (c) any conveyance, structure or thing of a class or description prescribed by the regulations (under the Local Government Act 1993) for the purposes of this definition.
I note that there are two State Environmental Planning Policies directed, separately, at the uses of land for the purpose of a caravan park and manufactured home estates, State Environmental Planning Policy No 21 - Caravan Parks (SEPP 21) and SEPP 36 respectively. At cl 6 of SEPP 21 a caravan park is defined as "… land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, installed or placed", consistent with the definition in LEP 2010. SEPP 36 defines a 'manufactured home estate' as "land on which manufactured homes are, or are to be, erected" and manufactured homes as: manufactured home means a self-contained dwelling (that is, a dwelling that includes at least 1 kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling - (a) that comprises 1 or more major sections that are each constructed, and assembled, away from the manufactured home estate and transported to the estate for installation on the estate, and (b) that is not capable of being registered under the Traffic Act 1909, and includes any associated structures that form part of the dwelling.
Inherent in these definitions is the distinction between a caravan as a moveable dwelling, that may be placed on a site (land) on a temporary basis, and a manufactured home which is a self-contained dwelling. This separation is strengthened by the operation and definitions contained in SEPP 21 and SEPP 36: Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106 at [12].
The use of the site for the placing of caravans is not proposed by the Applicant. Applying Wakefield Planning Pty Ltd v Yass Valley Council [2014] NSWLEC 1131 at [34]-[35] it is clear that if caravans are (by consent condition) not to be placed on the site, the proposed development does not fall within the definition of a caravan park. Such a condition is proposed in the conditions.
By reference to the development application form and the SEE the development application seeks consent for a 'manufactured home estate'. I accept that such a use is not defined under (or nominated by) the R1 General Residential zone land use table. I accept the position advanced by the SEE that a manufactured home estate allows for the provision of long term manufactured housing supported by internal community facilities. (Exhibit P) Further, I accept that none of the nominated uses in the zoning table are analogous to a manufactured home estate.
Applying Botany Bay v Pet Carriers at [33], the relevant question is 'whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument'. In answering this question, I find that the part of the development contained within the land zoned R1 General Residential is permissible for the innominate purpose of: manufactured home estate.

[15]

Site Contamination

Pursuant to cl 7 of SEPP 55 a consent authority must not consent to the carrying out of development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
Clause 7 of SEPP 55 is precondition to consent. Despite the issue of contamination not being raised in the issues in contention between the parties it is necessary for the Court, in exercising the functions of the consent authority on appeal, to be satisfied the precondition is met: HP Subsidiary Pty Ltd v City of Parramatta [2020] NSWLEC 135 at [16].
Recognising this the Court wrote to the parties in late January 2021 seeking further information and submissions in relation to: "- the provisions of State Environmental Planning Policy No 55- Remediation of Land. In particular, s7 and in particular whether the sub cl (4) applies to the subject development. In particular how to the precondition to consent is satisfied by the proposed development and the Exhibits before the Court."
The Court granted the parties an opportunity to provide any additional information or submissions by 3 February 2021 and noted that if the parties wished to appear in relation to request, they were approach the Registrar to allocate dates for the same.
Following receipt of submissions from the Applicant, which is in part extracted below, the Respondent provided their consent to the Applicant being granted leave to prepare a Preliminary Site Investigation (PSI) for the subject site and to rely on such a report in the proceedings.
Mr Robertson, for the Applicant made the following submissions in response to the Court's request: "91. Coffey Geosciences Pty Ltd undertook a comprehensive geotechnical assessment of the site: Ex W. In thirteen locations it excavated soils and later tested them including for potential acid sulphate soil. In the course of excavation, Coffey reported on the nature of the soils including their origin. One of the categories to be reported is whether the soils are fill or derived naturally: Appendix A 'Soil Description', Geological Origin. None of the thirteen engineering logs shows the presence of any fill on the site, that is, the soils including the topsoil were derived naturally and not from potentially contaminating activities. Nor is there any observation in the final column of the log indicating discolouration, the presence of human-made structures, contaminating particles such as asbestos or anything else that might suggest that the land has been contaminated by historic activities. The report describes both surface and subsurface conditions: pp 2-4 and Table 45 which reports the results of acid sulfate soil testing shows that there are no acid sulphate soils on the site: p 5.9. Although not labelled a contamination report, any contaminants discovered in the course of site testing would have been reported, as their presence was likely to impede site regrading works and the construction of platforms and road surfaces. Indeed, there would have been an obligation to stop work to ensure that the contamination was removed. No contamination was reported. 92. It is unsurprising there than neither Council (which must be assumed to have historic knowledge about the uses of the site) at the rezoning stage nor the applicant and the Council at the stage of decision-making about the site development have considered whether the site was contaminated. On one view, that discharges the obligation under cl 7(1) of SEPP 55. However, consistently with the views we have otherwise expressed in the submissions, the Court is entitled to raise any matter relevant to s 4.15 itself, even though the parties have not done so. We accept that, on one view, cl 7(4) and Table 1 of the Guidelines suggest a precautionary approach where land has previously been used for agriculture, would encourage the preparation of a preliminary site investigation (PSI) to examine site history together with the outcomes of the geotechnical assessment to form an opinion about whether the site was likely to be contaminated. 93. In those circumstances, the applicant seeks leave to prepare and tender a PSI, which we are advised can be completed within 2 weeks, given the existing data on the site. As this is a matter raised latterly by the Court, we respectfully submit that procedural fairness requires that an opportunity be given to the applicant to address the issue with appropriate evidence. Where the issues are expanded beyond those joined between the parties, the parties must be given the opportunity to address and be heard on the issue: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256 at [129] citing Pet Carriers." (Applicant's written submissions 4 February 2021)
The PSI was filed with the Court on 22 February 2021.
Although the issue of compliance with cl 7 of SEPP 55 was raised by the Court in these proceedings, the need for procedural fairness to the parties, in my view, is met as follows. Firstly, bringing the need for the precondition to be satisfied to the attention of the parties and enquiring how such a precondition is satisfied. It is plain that as cl 7 of SEPP 55 is a precondition, failure to satisfy it would lead to refusal. Secondly, the Applicant sought to address the precondition by submission of the PSI, to which it was granted time to prepare and leave to rely on the report by the Court. The Court's concerns were brought to the attention of the parties and they were provided an opportunity to address those concerns prior to the determination of the development application: Zhiva Living Dural Pty Ltd v Hornsby Shire Council (2020) 242 LGERA 280; [2020] NSWCA 180 at [29]; Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [129].
Consistent with the submissions of Mr Robertson, the PSI notes that it is to be read in conjunction with the Geotechnical assessment of the site prepared by Coffey Geosciences Pty Ltd (the Geotech report). The Geotech report included the excavation and sampling of soils on the site. (Exhibit W) I have read and considered the Geotech report and accept the summary of its results extracted from Mr Robertson's submissions at [101]. The PSI relies on the findings of the Geotech report, a study of historical aerial photography, record searches, a walkover of the site and interviews. Based on this information the PSI summarises the history of the site as follows [emphasis added]: "The history information suggests that the site was initially partially cleared and probably had a grazing use from circa 1970. The existing residence and additional bushland clearing was probably completed circa 1980 and then the out buildings in the locality of the residence and dams were probably constructed circa 1990. Part of the site (the area adjacent to the western boundary) was used for a market garden purpose and included selling vegetables at a roadside stall (north -west corner of the site) between 2009 and 2018. The majority of the site appears to have maintained a semi-rural (grazing) use since 1970." PSI, Douglas Partners Pty Ltd Feb 2021
The conclusion of the PSI Report is extracted below: "Based on review of the site history information and the walkover, the site appears to generally have a low potential for contamination and would generally be compatible with the proposed manufactured home estate (residential) development (from a site contamination standpoint), subject to completion of the following assessments: - Existing structures: A pre-demolition hazardous material survey in accordance with SafeWork NSW requirements is conducted by an appropriately qualified occupation hygienist prior to the demolition of the existing structures. All demolition work should be undertaken by a licensed demolition contractor and a clearance certificate provided by an occupational hygienist for the ground surface post demolition, - Soil: An intrusive soil investigation with associated contamination sampling to be conducted to confirm the assessed low potential for contamination. It would be appropriate to undertake the further intrusive works following the demolition of the existing structures. - Ground water: Should the results of the soil investigation indicate signs of contamination, then groundwater testing may be recommended." (PSI, Douglas Partners Pty Ltd Feb 2021)
Clause 7 of SEPP 55 at sub cl (4) references the publication titled 'Managing Land Contamination: Planning Guidelines SEPP 55- Remediation of Land' (the Contaminated Land Guidelines). I note that the Contaminated Land Guidelines list at Table 1 'agricultural/ horticultural activities' as activities that may cause contamination. I note that Table 1 lists the uses referred to in sub cl (4) of clause 7 of SEPP 55. The effect of the historic use of the site being in Table 1 of the Contaminated Land Guidelines and the fact that the development application seeks a change of use is that pursuant to sub cl (2) the Court must consider a PSI.
The common usage of the term agriculture is captured in the Macquarie Dictionary as: 'the cultivation of land, including crop-raising, forestry, stock raising etc. farming'. I am satisfied the previous use of the land falls within agricultural/ horticultural activities in Table 1 of the Contaminated Land Guidelines.
As such the Court is obligated, before determining the application for consent to change the use of the subject land (from agricultural/ horticultural use to residential) to consider a report 'specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the Contaminated Land Guidelines: cl 7 (4) of SEPP 55. I note that at s 3.5.2 of the Contaminated Land Guidelines it describes a PSI as follows: 3.5.2 Stage 1 - Preliminary Investigation The preliminary investigation contains a detailed appraisal of the site's history and a report based on a visual inspection and assessment. It is important that all relevant information about the site is assessed to determine the potential for site contamination. Where contaminating activities are suspected to have had an impact on the land, sampling and analysis will be required to confirm and support any conclusion reached from the site history appraisal. Through the assessment of sampling results an assessment of contamination can be established. A preliminary investigation is an important step in deciding whether a more detailed investigation is needed. Where the results of a preliminary sampling program demonstrate the potential for, or the existence of contamination, a detailed investigation should be undertaken; not necessarily immediately after the preliminary investigation but before the new use commences.
I have considered the PSI as required by cl (7)(2) of SEPP 55. I find that I cannot be satisfied, on the basis of the information before the Court, firstly whether the land of the subject site is actually contaminated and secondly if it is contaminated whether the land is either suitable for the proposed use in that state or able to be (and will be) made suitable prior to the commencement of the use. My reasoning is as follows: 1. The conclusion of the PSI is indeterminate. The language used prevaricates and is equivocal, for example: 'the site appears to generally have a low potential for contamination … would generally be compatible for the proposed use.' Such language is difficult to give significant weight when the text at cl 7 requires the Court to reach a state of satisfaction. 2. Further, the conclusion of the PSI is contingent on the completion of further assessment, refer paragraph [105]. Those further assessments have not been completed. 3. The Contaminated Land Guidelines note that 'where contaminating activities are suspected to have had an impact on the land, sampling and analysis will be required to confirm and support any conclusion reached from the site history appraisal'. On the information before the Court it is not possible to reconcile any sampling undertaken by the Geotech Report and the location of the market garden use, the grazing use or the areas identified as containing fill. It is not possible, in my view, to form a proper understanding of the nature or extent of any contamination of the site and/or the steps required to deal with any contamination. 4. The preceding conclusions are reinforced, in my view, by the extent of earthworks and site disturbance proposed by the development application. On the Applicant's estimate some 4000m³ of cut and the same of fill will occur as a result of the proposed development. (Exhibit P) 5. It is not appropriate to defer, by condition, further investigation of the site to resolve these uncertainties as to do so would impermissibly defer the assessment of the impacts of the proposed development : Weal v Bathurst City Council 111 LGERA 181.
In conclusion, I cannot be satisfied that the land is suitable for the proposed use, particularly in circumstances where the development for which consent is sought clearly involves the significant disturbance of the site. The precondition at cl 7 of SEPP 55 is not met and as a result consent cannot be granted to the development application.
Despite the finding that the Court does not have power to grant consent to the development, given the time invested by the Court and the parties in this matter, I have provided findings on the key issues remaining in dispute between the parties.

[16]

Is the land potential or core koala habitat?

State Environmental Planning Policy- Koala Habitat Protection 2020 (SEPP Koala) applies to the Mid Coast Council Local Government Area: Schedule 1. Whilst SEPP Koala commenced following the lodgement of the development application, the instrument applies: Part 5 SEPP Koala.
The updated BDAR, Exhibit K, addressed the relevant matters under the previous instrument: State Environmental Planning Policy 44 (Koala Protection) 2019. The parties submissions accept that the effect of cl 20 of SEPP Koala is that, in the absence of a savings provision, SEPP Koala applies to the proposed development.
Pursuant to cl 8 of SEPP Koala, prior to the grant of consent to a development application the consent authority must be satisfied as to 'whether or not land is a potential koala habitat only on information obtained by it, or by the applicant, from a person who is qualified and experienced in tree identification.' If the land is found to be potential koala habitat the Consent authority must then make a determination whether the land is core koala habitat in accordance with cl 9 of SEPP Koala. If it is held that the land is core koala habitat, consent cannot be granted without a POM: cl 10 SEPP Koala.
In the joint report the ecologists, Mr Conacher (for the Applicant) and Mr Bell (for the Respondent), note their agreement that there are recorded sightings of Koalas on the subject site. This is supported by anecdotal evidence provided by residents through their submissions, and the tendered 'Koala Sighting Report' of a Koala on Coastal View Drive in proximity to the site in September 2020. (Exhibit 28) Further, the subject site contains evidence of koala presence through scratch marks on the trunk of a tree on site. However, the BDAR notes that no koala scats were observed on the site during the survey work undertaken and concludes that this indicates a low level of use of the site by Koalas. No koalas were observed on site during the surveys undertaken in the preparation of the BDAR. (Exhibit K)
To meet the definition of 'potential koala habitat' under SEPP Koala the site must contain areas of native vegetation where trees of the types listed in Schedule 2 (extracted below) constitute at least 15% of the total number of trees in the upper or lower strata of the tree component. The relevant koala feed tree types, listed in SEPP Koala, are: Eucalyptus tereticornis (Forest red gum) Eucalyptus microcorys (Tallowwood) Eucalyptus punctata (Grey Gum) Eucalyptus viminalis (Ribbon or manna gum) Eucalyptus camaldulensis (River red gum) Eucalyptus haemastoma (Broad leaved scribbly gum) Eucalyptus signata (Scribbly gum) Eucalyptus albens (White box) Eucalyptus populnea (Bimble box or poplar box) Eucalyptus robusta (Swamp mahogany)
The subject site contains both Eucalyptus microcorys and Eucalyptus punctata (Exhibit C). The VMP includes proposed replanting of the following species: Eucalyptus microcorys, Eucalyptus robusta and Eucalyptus tereticornis as part of the development.
Potential koala habitat is defined by SEPP Koala as: potential koala habitat means areas of native vegetation where trees of the types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component.
By reference to Exhibit M the following trees on the site are relevant tree species in Schedule 2 of SEPP Koala: 79, 80, 104, 106, 110, 111, 112, 125, 126, 118, 117, 129, 130, 133, 134, 135, 137, 138, 143, 147, 149, 182, 183, 185, 186, 187, 188, 189, 197, 308, 315, 318, 329 and 330. A total of 35 trees of the 103 trees surveyed. I note that the oral evidence of Mr Kingdom that not all of the trees on the subject site were assessed in his Arboricultural Impact Assessment report.
On the face of the Arboricultural Impact Assessment report completed by the Applicant the subject site could meet the definition of potential koala habitat. Further, the BDAR states that 'the site contains area where this species [Eucalyptus microcorys] constitutes greater than 15% of the total number of trees in the upper and lower strata of the tree component'. (Exhibit K) Therefore, taking a conservative approach, the site may be potential koala habitat as defined by SEPP Koala.
Given the above, prior to the grant of consent I must satisfy myself whether the land is core koala habitat: s 8(3)(b) of SEPP Koala.
Core koala habitat is defined by SEPP Koala as: core koala habitat means an area of land with a resident population of koalas, evidenced by attributes such as breeding females, being females with young, and recent sightings of and historical records of a population.
The BDAR states that: 'It is considered that the site does not contain an area of land with a resident population of koalas, evidenced by attributes such as breeding females (that is, females with young) within the site and recent sightings of koalas within the site and historical records of a population within the site'. (Exhibit K)
Neither the Respondent or the Applicant, nor the experts, contend that the subject site meets the criteria to be defined as 'core koala habitat' under the Koala SEPP.
On the basis of the evidence before the Court I am satisfied that there is no resident koala population on the land subject of the proposed development application, within the meaning of SEPP Koala. Therefore, the site does not meet the definition of core koala habitat and SEPP Koala does not prevent the grant of consent to the application.

[17]

Other Jurisdictional preconditions to consent

Before dealing with the remaining of Council's contentions, which are merit issues pertaining to whether consent ought to be granted, it is necessary to demonstrate that the other applicable jurisdictional preconditions have been met.
The proposed development is situated on land which is classified as Bushfire Prone Land and as such requires a bushfire safety authority pursuant to s 100B of the Rural Fires Act 1997. The development application was referred by the Council to the NSW Rural Fire Service, who provided general terms of approval, subject to conditions, on 10 April 2019.
Under s 68 of the Local Government Act 1993 (LG Act), an approval is required to operate a manufactured home estate and for the installation of a manufactured home, moveable dwelling or associated structure on land. The obtaining of such an approval is included in the conditions of consent.
The installation of manufactured homes in an MHE attracts the provisions of Part 2 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwelling) Regulation 2005 (LG Regulation). Among others, cl 6 (1) provides that Council must not grant an approval to operate a manufactured home estate unless it is satisfied that the manufactured home estate will be designed, constructed, maintained and operated in accordance with the relevant requirements of Division 3. Part 2 of the LG Regulation applies to the operation of manufactured home estates, and to the installation of manufactured homes in manufactured home estate.
The development application does not include a request to operate a manufactured home estate: s 6(1) of the LG Regulation. If consent was granted, the requirement to gain approval to operate would be a condition of consent.
By reference to Schedule 3 of ISEPP the subject development is not traffic generating development.
LEP 2010 applies to the subject development. Consistent with cl 2.7 of LEP 2010, consent for the demolition of the existing improvements is sought as part of the application.
The objectives of the zone are a matter for consideration in the determination of the development application (cl. 2.3(2) LEP 2010). The objectives of the R1 - General Residential Zone are as follows: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The objectives of the RE1 Public Recreation Zone are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
In determining the development application, I have given consideration to the objectives of the two applicable land use zones.
Clause 4.3 of LEP 2010 provides a maximum building height for the site of 8.5m. The maximum height of the community building is 6.5m, the development is compliant with this provision.
Clause 4.4 of LEP 2010 provides a maximum floor space ratio (FSR) for the site of 0.6:1. The proposed development has an FSR of 0.009:1 (Exhibit P) and complies with the standard.
Pursuant to cl 7.1 Acid Sulphate Soils part of the site is mapped as Class 5. The subject site is not within 500 m of soils of other classes: Acid Sulfate Soils Map - Sheet ASS_016A and thus the works are not works specified under sub cl 2 of 7.1 of LEP 2010. Further, the Preliminary Geotechnical Report prepared by the Applicant, concludes that the 'soils to be excavated on the site are not acid sulfate soils'. (Exhibit W)
Clause 7.2: Flood Planning applies to land at or below the flood planning level. The subject site is not identified as being with the flood planning area mapped under LEP 2010. The Applicant's Water Sensitive Design Strategy addresses the impacts of the 1% AEP flood event and shows that the proposal attenuates post-development peak discharges to maintain existing flows for all storm events up to and including the 100-year ARI rainfall event. (Exhibit P) I am satisfied that the proposed development satisfies the requirements of cl 7.2(3) of LEP 2010.
Clause 7.3 of LEP 2010 requires development consent to be obtained before carrying out earthworks (cl 7.3(2)) and specifies the matters that the consent authority must consider before granting consent for earthworks (cl 7.3(3)). Those matters for consideration are: (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.
The development application seeks consent to carry out earthworks after the subject site had been cleared of vegetation. The mandatory consideration of cl 7.3(3) of LEP 2010 was raised by the Court at the commencement of the hearing. Those works are detailed in the Statement of Environmental Effects as follows: "Cut and fill will be limited to the construction of roads, drainage, utilities and services together with the construction of the community facilities. Full details will be provided as part of the Engineering Construction Certificate process and subject to appropriate conditions of consent. Preliminary bulk quantities would indicate total cut of approximately 4,000m3 and fill of approximately 4,000m3 giving a balance of earthworks and thus reduce unnecessary hauling of material to external locations. … …the revised Masterplan prepared by Lidbury Summers & Whiteman (Consulting Surveyors , Planners and Engineers) shows the extent of cut and fill together with various longitudinal sections at critical points through points through the proposed development that demonstrates the general pattern of benching and retaining across the site in relation to the proposed roads and MHE sites. The sections demonstrate that site profiling can be reasonably profiling can be reasonably achieved with similar outcomes expected should the property be developed for standard residential subdivision development." (Exhibit P)
The Respondent raises concern in relation to the extent of cut and fill in the statement of facts and contentions at Contention 2(d), 2(e).
The proposed extent of cut and fill is detailed in the engineering plans, Exhibit D. These works were considered by Mr Nash (planning) and Mr Pollard (urban design) as well as Mr Kingdom and Mr Duncome (arboricultural experts). My consideration of the merit of the earthworks proposed by the application and the evidence of the experts in relation to the impacts arising from the proposed cut and fill or benching works is detailed at [316]. In determining the application, I have taken into consideration the factors listed at cl 7.3(3) of LEP 2010. I note the test in this clause is that the factors are considered, not that the earthworks are meritorious.
On the basis of the plans for which development is sought (Exhibit A, B, G, V) and the Applicant's Water Sensitive Design Strategy (Exhibit J) I am satisfied that for the services that are essential for the development are available or that adequate arrangements have been made to make them available when required.
A preliminary 'Site walkover report' was prepared by the Forster Local Aboriginal Land Council for the purpose of undertaking a preliminary assessment of the potential for indigenous heritage to be present on the site. The report concludes that the subject site has high levels of disturbance as a result of previous farming practices and no evidence of indigenous artefacts or relics were identified.

[18]

Does the BDAR meet the requirements of 6.12(a) and (c) of the BC Act 2016?

The BC Act applies to the proposed development. Part 6 of the BC Act details the biodiversity offset scheme. Clause 6.4 states that the offset scheme applies following steps taken to avoid or minimise an impact: (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. (emphasis added)
Section 6.3 of the BC Act confirms that the impacts arising from the clearing of native vegetation and the loss of habitat are impacts to which the biodiversity offset scheme applies. The scheme does not apply where a finding of serious and irreversible impacts on biodiversity values is made: 6.2(i) of the BC Act.
The requirements of the BDAR are contained at cl 6.12, as follows: 6.12 Biodiversity development assessment report For the purposes of the biodiversity offsets scheme, a biodiversity development assessment report is a report prepared by an accredited person in relation to proposed development or activity that would be authorised by a planning approval, or proposed clearing that would be authorised by a vegetation clearing approval, that - (a) assesses in accordance with the biodiversity assessment method the biodiversity values of the land subject to the proposed development, activity or clearing, and (b) assesses in accordance with that method the impact of proposed development, activity or clearing on the biodiversity values of that land, and (c) sets out the measures that the proponent of the proposed development, activity or clearing proposes to take to avoid or minimise the impact of the proposed development, activity or clearing, and (d) specifies in accordance with that method the number and class of biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values of the actions to which the biodiversity offsets scheme applies.
At contention seven the Council asserts that the BDAR does not comply with the requirements of the BC Act and does not allow a proper consideration of the application under s 4.15(1)(b) and (c) of the EPA Act.
A BDAR has been prepared by Conacher Consulting Pty Ltd: s 7.7 of the BC Act. The BDAR provides an assessment of the proposed impacts to biodiversity arising from the development in accordance with the requirements of the BC Act and the Biodiversity Assessment Method detailed at Part 6, Division 2 of the BC Act.
The BDAR concludes that 'the proposal is not likely to have a Serious and Irreversible Impact, as no potential Serious and Irreversible Impact Entities were observed during surveys' and that the avoidance and minimisation measures detailed in the BDAR should be implemented.(Exhibit K) Further, the BDAR concludes that: "- A total of 59 ecosystem credits are required for PCT 1150 Small -fruited Grey gum - Turpentine - Tallowwood Moist Open Forest on Foothills of the Lower North Coast; - A total of 79 species credits are required for the Southern Myotis; - A total of 25 species credits are required for the Masked Owl; - A total of 79 species credits are required for the Koala." (Exhibit K)
Pursuant to s 6.23 of the BC Act, the Applicant has opted to utilise payment to retire these biodiversity credits, details of which are included in the BDAR. (Exhibit K)
There is agreement between the ecology experts that the 'construction and operation of the proposed development will directly or indirectly remove, modify, isolate and/or disturb and a large proportion of the native vegetation and habitat values of the subject site'. (Exhibit 12)
However, the experts disagree whether these impacts are the residue impacts following appropriate avoidance of or consideration/ action to mitigate impacts.
The ecology experts, Mr Bell for the Respondent and Mr Conacher for the Applicant, agree that the subject site contains habitat known to be utilised by threatened fauna species, including the koala, southern myotis, eastern false pipstrelle, little bentwing-bat, and masked owl. Mr Conacher states that whilst other species may occur, extensive field surveys over several years have not identified other threatened species. In contrast Mr Bell argues that fauna field surveys do not guarantee the detection of species and so a 'precautionary consideration of additional threatened fauna species is important'. (Exhibit 12) Mr Bell notes that a further five threatened species 'are reasonably expected on the site'. (Exhibit 12)
The experts disagree about the connectivity values of the subject site for fauna movement, and the preferred location within the site for a corridor. Mr Bell says that the areas proposed for retention and rehabilitation on the western boundary of the subject site are 'narrow, linear, confined to the periphery of the subject site, susceptible to edge effects and do not provide for adequate connectivity values'. (Exhibit 15) As part of his evidence Mr Bell identified an alternative approach to the subject site retaining a central corridor for connectivity of fauna species to land north of the site across Coastal View Drive and south of the site across Blackhead Road. This was not embraced by the Applicant. As this is not the application before the Court, I make no assessment or comment on the merit of such an alternative approach.
However, the thrust of Mr Bell's evidence is that 'there is a requirement [for the development] to maintain and improve connectivity for biodiversity between Darawank Nature Reserve in the south and Khappinghat National and Kiwarrak State Forest in the North'. (Exhibit 3) It is Mr Bell's view that such a 'preferred ecological connectivity outcome' arises from firstly identifying the locations of connecting habitat on adjoining land that can link with the subject site and secondly by identifying the ecological opportunities and constraints of the site to avoid impacts from the proposed development on ecological values.(Exhibit 3) He proposes that the Applicant can better achieve such connectivity by retention and rehabilitation of a central corridor within the site, in addition to the corridor proposed to be retained to adjacent the western boundary.
It is Mr Bell's evidence that this approach would 'permit and facilitate koala and other wildlife movements along the watercourse and roadside habitats on the southern side of Blackhead Road, through the site, and into the corridor within the approved tourist development (not constructed) north of Coastal View Drive.' (Exhibit 3) Further, Mr Bell notes that there is a koala record from this location on the BioNet database.
Finally, Mr Bell argues that such an approach (identify and design to avoid) is demonstrative of the approach required by the BC Act to avoid impact, prior to consideration of minimisation and offset of impacts.
Mr Bell also notes that nine hollow bearing trees currently exist on the subject site, containing a total of 42 hollows and that none of these trees are proposed to be retained in the development. I note that the BDAR, at Table 6.2, suggests mitigation of this impact through the installation of nest boxes. (Exhibit K)
Mr Conacher disagrees with Mr Bell and argues that the 'amended site layout plans, landscape plans, updated Arborists Report have identified where and how additional trees can be retained and where landscape plantings will be undertaken'. (Exhibit 15) Further, he argues that: "The preparation and implementation of the Vegetation Management Plan (Conacher Consulting 2020) will also increase the identified biodiversity impact mitigation measures for the proposal. These types of habitat restoration and revegetation measures are recognised impact mitigation measures within the provisions of the Biodiversity Conservation Act." (Exhibit 15)
In response to Mr Bell's critique of the adequacy of the provision of connectivity through the site, I note that the BDAR includes the following summary of the connectivity characteristics of the site: "Connectivity through the site The site is dominated by paddock areas dominated by exotic grasses with low levels of scattered remnant trees and small patches of native vegetation. Terrestrial species traversing through the site would need to be capable of moving across cleared areas of exotic grasses. Connectivity to the North To the north the site is bordered by Coastal View Drive and the cleared back yards of existing dwellings. Directly across Coastal View Drive there is a patch of native vegetation of approximately 1.9ha in size. The majority of this vegetation has been approved for removal under Development Application No. 330/2015, with only a small area identified for selective tree retention through the central part of this approved development. There are also several small patches of remnant vegetation within the golf course to the north which have potential to provide stepping-stone type connectivity to a large area of remnant forest to the north of the Tallwoods estate. Connectivity to the East The property to the east of the site is cleared with remnant trees and provides similar disturbed habitat to that within the site. This area is part of an approved residential subdivision approved under Development Application No.567/2011 and it is likely that future tree removal and dwelling construction will occur where this allotment adjoins the subject site. Connectivity to the South The site adjoins Blackhead Road to the south. There is a line of tall remnant trees along the southern boundary of the site which are proposed for retention. On the southern side of Blackhead Road, the vegetation consists of an area dominated by Casuarina glauca in the wetter parts and a small area of Eucalyptus pilularis in the drier parts. The watercourse which flows around the Hallidays Point Caravan Park on the southern side of Blackhead Road is dominated by Casuarina glauca. Connectivity between the site and lands to the south is primarily across Blackhead Road this area can only be achieved across Hallidays Point road. Connectivity to the West The site to the west is predominantly cleared and does not provide suitable areas of forested vegetation connectivity. A predominantly cleared watercourse and dam area are present within this adjoining allotment and is fed by waters to the north of Coastal View Road." (Exhibit K)
The extent of proposed clearing and vegetation retention is demonstrated by Figure 1.1 of the BDAR:
Mr Conacher concludes that the vegetation proposed to be retained on the western boundary (with the proposed revegetation works) will provide connectivity and fauna movements to and from the site across Coastal View Drive (to the north) and Blackhead Road (to the South). Further, he argues that the retention of the existing larger trees along the southern site boundary will enable east-west wildlife movements. (Exhibit K)
Both ecology experts agree that the 'proposed removal and destruction of vegetation and wildlife habitat will impact on the habitat available to the threatened species that utilise the area. The experts disagree as to the reasonableness of that impact.
In summary Mr Conacher, relying on the BDAR assessment, concludes that:

The threatened species surveyed are highly mobile and occur throughout the local and regional area.
The habitat available on site is fragmented and highly disturbed.
The BDAR assessment has been completed in accordance with the BC Act and the BAM Manual.
That the reason for the proposed clearing is to provide for the proposed development, so it is unfounded to say the impacts are 'unreasonable' (ie without reason).
That the proposed contributions of some $393,636 to the Biodiversity Conservation Trust are an offset for the residue impacts arising from the development. Such contributions result in a no net loss standard being achieved.
The proposed impacts are reasonable.

In the alternative Mr Bell argues that in addition to an assessment under the BC Act it is necessary for any impact arising from the development to also be assessed under s 4.15 of the EPA Act, in particular: s 4.15(1)(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'. In undertaking this assessment, he highlights the following:

That the subject site has important environmental values that can be identified and located on a plan of the subject site. Mr Bell summarises those values as: 'the occurrences of the dry forest vegetation type, the mature native trees (particularly Eucalyptus microcorys and Eucalytus propinqua being preferred koala feed trees), the hollow bearing trees, the habitat in the vicinity of known threatened species recorded on the subject site and the habitat that provides valuable local connecting habitats' (Exhibit 12).
That the proposed development: "Removes 100% of all hollow bearing trees, and Noting that the updated report of Advanced Treescape Consulting identifies that 57 trees will be removed, and 46 retained, it is Mr Bell's evidence that the development directly removes, or harms through cut and fill, 75% of all current native trees, and Removes most of the native vegetation communities, and Removes important threatened species habitats, and Reduces local connectivity for species that need to move through the wider landscape, including the koala."
Despite the changes proposed in the amended plans the impact arising from the extent of vegetation proposed to be removed is excessive and unreasonable.
Further, a number of trees which the Applicant asserts will be retained are likely to be detrimentally impacted by the proposed cut and fill in their tree protection zones (TPZ).
In relation to the VMP: - It is constrained by the use of non prescriptive language in defining actions (for example 'should') which will limit the enforceability of implementation. - It is limited in the breadth of action it proposes and broadly focusses on fencing, weed control, revegetation efforts (without detail as to replanting numbers), preclearing survey and hollow bearing tree and nest box removal to address fauna relocation, rubbish management, sediment and erosion control and monitoring/ reporting. - it does not incorporate details of all biodiversity measures relied on in the BDAR. - Whilst the BDAR relies on east - west fauna movement along the southern boundary of the subject site the area to be retained contains only a small number of trees. No additional trees are proposed to be planted under the VMP. 'The development thus relies on the trees within the road reserve (to which the proponent has no control) for east-west fauna movement in the south. This is not appropriate or effective for secure and reliable east-west movement along the southern boundary in the developed landscape. Faunal movement through the site will be compromised by the development.' (Exhibit 20) - No additional planting is proposed along the northern boundary of the subject site.
That the development proposed results in the removal of the majority of the environmental values and environmental assets on the subject site.
In Mr Bell's opinion the development should be sited in a manner that is both sensitive of and responsive to the important natural features. In his view this is not the approach of the current application.

In response to Mr Bell's criticism, Mr Conacher argues that the following amendments have been made to the development application to minimise impacts:

A reduction in the development footprint to allow greater tree retention, including the deletion of a number of sites in the final iteration of the development plans. (Exhibit D)
Deletion of the proposed path/cycleway along the area adjacent the southern site boundary to allow for greater tree retention.
Removal of the proposed sporting area from the land to the west of the site.
Retention of vegetation and supplementary plantings of suitable species in the setback area along the northern boundary (fronting Coastal View Drive).
The implementation of the VMP will improve the environmental values of the site through replanting of species and habitat restoration. (Exhibit 12, 15 and 20)

Finally, the ecology experts disagree on the application of the hierarchy of avoidance, minimisation and offsetting of impacts to the proposed development.
Mr Conacher concludes that the BDAR satisfies the statutory requirements, in particular s 6.12(a) and (c) of the BC Act. His evidence and reasoning can be summarised as follows:

Consistent with the requirements of s 6.12(a) of the BC Act the biodiversity values of the site are comprehensively documented in: firstly Section 2: Native Features and Site Context; secondly in Section 3: Native Vegetation and Vegetation Integrity Assessment; and finally, in Section 4: Threatened Species Details.
The measures that the proponent has identified to avoid and minimise the impact of the proposal are documented in the BDAR at Section 5.1. A total of 10 appropriate mitigation and management measures to minimise and mitigate impacts are proposed: s 6.12 (c) of the BC Act.

Mr Conacher disagrees with the contention of the Respondent that the BDAR does not meet the requirements of s 6.12 of the BC Act.
Mr Conacher further relies on the table within the BDAR summarising the mitigation and management measures proposed is extracted below. (Exhibit K)
In the alternative, a key element of Mr Bell's evidence is his view that the Applicant places insufficient emphasis on the hierarchy within the legislation which requires firstly avoidance, then minimisation and finally offsetting of any impacts on biodiversity arising from the proposed development. He references the Biodiversity Assessment Method Operational Manual 2017 (BAM Manual) which states: 'inadequate consideration of avoiding and/ or minimising biodiversity impacts can compromise the approval of a development application'. (Exhibit 12) Mr Bell concludes that: "…the Biodiversity Assessment Report (and the development overall) does not: - recognise the subject site[s] biodiversity constraints and outline a suitable/responsive development location and design that is responsive to these constraints, and - outline a development that is focussed away from threatened species habitat or important native vegetation, and - outline a development that makes the best use of space" (Exhibit 12)
In conclusion, Mr Bell argues that the proposed development fails to avoid important biodiversity values, is not sensitive to their preservation, and does not reflect adherence to the matters detailed in chapter 8, Avoiding and minimising impacts on biodiversity values, of the BAM Manual. He states: 'A argue that the required process of identifying, acknowledging and defining the constraints and opportunities of the subject site with regards to important amenity and ecological values has not been incorporated in the planning of the current development layout and density. The development layout and density does not avoid and then minimise impacts on important amenity and ecological values'. (Exhibit 11)
During the proceedings the BDAR was updated to reflect the amended development plans. In relation to the amendments Mr Bell's evidence is that the amended development still fails to adequately avoid impacts on the site biodiversity values. (Exhibit 20)

[19]

Submissions

Mr Robertson submits that the number of tallowwoods (Eucalyptus microcorys) proposed to be retained on site will provide a better outcome for the retention of Koala feed trees, and native vegetation as a whole, than would be able to be preserved in a traditional subdivision. Further, he argues that the proposed development will facilitate the enhancement of the corridor along the site's western boundary which, in conjunction with the adjoining land (not owned by the Applicant), will provide a corridor of between 75-100m.
Mr Robertson also argues that the fact that the MHE is a managed estate provides additional benefits for the purposes of the conservation of the land. Namely, that a number of the trees retained will be in communal land, and that the implementation of the VMP will be managed centrally.
In response to Mr Bell's evidence on the merits of a central corridor, Mr Robertson argues that:

The trees retained by such a corridor are of varied quality;
There is no current connectivity within the existing trees in the centre of the site;
To be successful such a corridor requires mid and upper storey vegetation, which would introduce a fire risk;
That such a corridor fails to link to an existing corridor adjacent the subject site; and
It would increase the risk to koalas by attracting them to the centre of a residential development.

Mr Robertson submits that the site is not of high biodiversity significance and the BAM Manual does not prevent the removal of the vegetation, but rather, in accordance with the BC Act, requires the payment of a funds to offset the residual impact. He notes that the conditions of consent require such a payment. He argues that the making of that payment 'will achieve a no net loss standard for impacts on biodiversity values'. (Applicant's written submissions 24 November 2020)
Mr Robertson notes that the Respondent does not advance an argument that the BAM system 'is not appropriate to be applied to the site' or that the assessed payment will not meet the objective of offsetting impacts.
Mr Robertson notes that the BDAR concludes that any impact from the development on biodiversity values is either mitigated, or minimised by, firstly the regeneration plans (VMP) or by the payment of a funds. He further asserts that the BDAR concludes that the development is sited in an area of low biodiversity value where the vegetation and habitats are in poor or disturbed condition. Mr Robertson concludes that, applying s 7.13(2) of the BC Act the likely impact of the proposed development on biodiversity values, as assessed in the BDAR, is minor. He submits that there is no reliable evidence beyond the BDAR that concludes that a greater impact will occur. (Applicant's written submissions 24 November 2020)
In relation to the interaction between s 4.15 of the EPA Act and s 7.13 of the BC Act, Mr Robertson makes the following submission: "In the first instance, a Court must consider the impact on biodiversity values 'as assessed in the' BDAR. It is not required to consider any further impact on biodiversity values, although it may do so: s7.13(6)(a). It is no longer a mandatory consideration under s 4.15 of the EPA Act to consider the impact of the development on biodiversity values beyond those assessed in the BDAR." (Applicant's written submissions 24 November 2020)
In response to the Respondent's, and Mr Bell's, criticism of the steps taken to avoid or mitigate impacts, Mr Robertson argues:

The measures are outlined in the BDAR in considerable detail: s 5.1 of the BDAR (Exhibit K).
The Applicant's VMP details the mitigation measures. These include the planting at a rate of 1 per 5sqm of tallowwood, grey gum and other species in the northern portion of the corridor shown at paragraph [164], and swamp mahogany, forest redgum and other species in the southern portion of the corridor.
Plan changes have been made to more clearly protect the western part of the subject site, including regeneration of the EEC and the retention of many more trees.
Mr Bell misunderstands the cut and fill measures proposed in the north west of the site where trees will be retained, not removed. Further, he is incorrect in his assumption that no plantings are proposed on the sites northern boundary.
Mr Bell misunderstands the role of ecologists in completing BDAR's. Mr Robertson argues, and he submits Mr Bell accepted in cross examination, that s 6.12 of the BC Act does not require the author of the BDAR to design the development to avoid impacts, but rather to assess the measures proposed by the Applicant to avoid or minimise those impacts. Mr Robertson submits that '(t)he author of the BDAR takes the development as he or she finds it. If there is a residual impact on biodiversity, the developer is required to buy out the impact. Where there is a serious or irreversible impact on biodiversity values the development cannot proceed: s 6.5, BC Act.' (Applicant's written submissions 24 November 2020)

In the alternative, Ms Irish argues that it is relevant that Mr Conacher's evidence states that 'the reason for clearing the trees and vegetation and resultant disturbances to fauna habitat is to provide for a proposed development of the site' (Exhibit 12 cited in Respondent's written submissions 10 December 2020) Ms Irish also notes the Applicant's concession that both the land size, project yield and viability informed the project. She submits the approach by the Applicant is not consistent with the intent of the BC Act to avoid impacts prior to the consideration of their mitigation or offsets. She argues that the Court should prefer the evidence of Mr Bell that an appropriate development could be sited in a manner that is sensitive and responsive to the important natural environmental assets and features comprising its biodiversity values. (Exhibit 12)
Ms Irish submits firstly that the evidence of Mr Bell should be preferred by the Court, secondly that the BDAR submitted and relied on by the Applicant does not comply with the requirements of s 6.12 of the BC Act and finally that it is appropriate that the Court consider the impacts on biodiversity arising from the application under s 4.15 of the EPA Act. Ms Irish submits that applying this approach the conclusion of the Court should be that the application has an impact on significant vegetation and wildlife that is, on merit, unacceptable and that the biodiversity assessment contained in the BDAR is inadequate.
The remainder of Ms Irish's submissions on this point can be summarised as follows:

That the proposed development will have an unacceptable impact on significant vegetation and wildlife habitat on the subject site (including the habitat of threatened species) and that such impacts have not been adequately avoided or minimised by the application.
That the Court should give weight to the evidence of Mr Bell that, whilst the ecological surveys identified five threatened fauna species on the site, 'additional threatened species are reasonably expected' (Exhibit 12).
That there is an undisputed BioNet observation of a koala present on the land adjacent to the subject site and that there is evidence of recent, proximate, usage of the rear yard of 4 Coastal View Drive by a mature female koala. (Exhibit 28) Further, Mr Bell's evidence is that he has seen koala movements on both sides of Blackhead Road. (Exhibit 12)
Ms Irish notes that the BDAR assesses the impact of the development on the koala's presence and identifies credits to be retired equal to $89,492. (Exhibit 12) However, she argues that the Court should consider the evidence of Mr Bell that: 'where there is an endangered koala population and the urban matrix, the conclusion is that koalas will enter the urban matrix sometimes, and the balance is to give them sufficient resources, whether it is shelter or forage to give them the best chance of survival…'. (Respondents written submissions 10 December 2020).
Ms Irish argues that, on the evidence of Mr Bell, the proposed development has unreasonable impacts on the ecosystem types nominated as PCT 1550 (partially removed) and PCT 1235 (fully removed). In particular she notes that, on Mr Bell's evidence, PCT 1235 is a threatened ecological community of regional significance.
Ms Irish notes, that: - Mr Conacher argues that 'the reason for clearing the trees and vegetation and resultant disturbances to fauna habitat is to provide for a proposed development of the site'. (Exhibit 12) - And further that the Applicant concedes that issues such as land size, project yield and commercial viability informed the proposed development. (Exhibit P) She submits the Court would prefer the evidence of Mr Bell that the extent of proposed impacts to the site's biodiversity values could be avoided by a more sensitive and responsive development. Further, she submits that the Court should embrace Mr Bell's conclusion that the scale of environmental impact is avoidable and unreasonable.
That the BDAR prepared by the Applicant does not embrace the hierarchical order of application of the avoidance, minisuction and then offsetting of impacts on biodiversity values, as required by s 6.4(1) of the BC Act.
That the avoidance and minimisation measures detailed at Section 5.1 of the BDAR are characterised by either: a claim for credit for impacts that were not part of the proposed development (for example the deletion of playing fields (1) and the shared pathway (11)); or are elements of the proposal that will be impacted by other requirements of the proposal (for example the required cut and fill with impact on trees nominated for retention (2) and (6), and the requirement to maintain areas as APZ (3) and (10)).

[20]

Findings

The proposed development involves the impact of clearing native vegetation and loss of habitat, I am satisfied that the biodiversity offset scheme applies: s 6.3 BC Act.
By reference to s 6.4 of the BC Act, in my view, it is clear that the intent of the scheme is that offsets occur after any steps taken to avoid or minimise those impacts. Importantly, at sub cl (a) and (b), offsets to compensate for impacts on biodiversity are made either by the retirement of biodiversity credits (payment) or other actions that benefit the biodiversity values of the impacted land or other biodiversity values. Arguably, the actions detailed in the VMP fall into this second category, i.e. they are directed to benefiting the retained biodiversity values on the site, rather than being evidence of impact avoidance.
Pursuant to s 6.12 of the BC Act the BDAR is required to: (a) assess, in accordance with the biodiversity assessment method (BAM), the biodiversity values of the land subject to the proposed development; and (b) assess in accordance with that method the impact of proposed development on the biodiversity values of that land, and (c) set out the measures that the proponent of the proposed development, proposes to take to avoid or minimise the impact of the proposed development, and (d) specify in accordance with that method the number and class of biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values of the actions to which the biodiversity offsets scheme applies.
In the current proceedings, whilst the BDAR was updated in August 2020, it does not appear to align with the development for which consent is sought. In particular I note:

In Figure 1.1 of the BDAR the extent of vegetation removal nominated does not align with the extent of development shown in Exhibit D. For example, the extent of vegetation removal (indicated by yellow hatch) shown has not been updated to reflect the deletion of proposed lots 1-7 adjacent the northern boundary (proximate to Coastal View Drive). Refer to paragraph [163].
The BDAR does not reflect, or confirm, consistency with the Preliminary Civil Plan or the Tree Retention/ Removal Plan in Exhibit D. Given the extent of site benching proposed and the potential direct and indirect impacts of cut and fill this is a critical omission.
The description of the proposed development at Part 1.3 of the BDAR is sufficiently broad that it is uncertain that it reflects the most recent iteration of the development application. No reference is provided which clarifies the plans or documents on which the BDAR relies or assesses.

Arguably, the BDAR before the Court in Exhibit K is not prepared 'in relation to the proposed development or activity that would be authorised by a planning approval': s 6.12 of the BC Act.
The biodiversity assessment method referred to at s 6.12(a) of the BC Act is the BAM Manual. The BAM Manual provides operational guidance to assist applicants and accredited assessors in the application of the biodiversity assessment method. Stage 2 of the BAM Manual applies the avoid, minimise and offset hierarchy and assesses direct, indirect and prescribed biodiversity impacts associated with proposed development. The BAM Manual is referenced in the Applicant's BDAR.
Relevantly, the BAM Manual clearly states (in distinction to s 6.12(c) of the BC Act) that the proponent and the assessor must seek to avoid impacts on all biodiversity values. Of particular relevance to the current project, at 1.2.1 the BAM Manual states: "Avoidance should be demonstrated through site selection (locating the development footprint in areas away from biodiversity values), project design (adapting density, design and layout of the project), and scheduling (timing activities to account for species behaviours such as breeding, migration)." (BAM Manual, p 10)
Chapter 8 of the BAM Manual identifies the following components of, or approach to, avoiding and minimising impacts on biodiversity values:

8.1 Avoiding and minimising impacts on native vegetation and habitat during project planning - 8.1.1 Locating a project to avoid and minimise impacts on native vegetation and habitat - 8.1.2 Designing a project to avoid and minimise impacts on native vegetation and habitat
8.2 Avoiding and minimising prescribed biodiversity impacts during project planning 8.2.2 Locating a project to avoid and minimise prescribed biodiversity impacts 8.2.3 Designing a project to avoid and minimise prescribed biodiversity impacts

I accept the submissions of Mr Robertson, summarised at paragraph [183] that, consistent with s 6.12(c) of the BC Act, the BDAR documents those measures that the proponent of the proposed development proposes to take to avoid or minimise the impact of the development on the biodiversity values of the site. The fact that the BAM Manual expands this consideration, in my view, does not mean that the BDAR fails to meet the requirements of s 6.12 of the BC Act.
The BDAR, as filed, meets the minimum requirements of s6.12 of the BC Act.
However, Part 7, s 7.13 (2) of the BC Act states that 'the consent authority, when determining in accordance with the EPA Act, 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'. Further at sub cl (6) of 7.13, the BC Act states: (6) This section does not operate to limit the matters that a consent authority may take into consideration - (a) in relation to the impact of proposed development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts, or (b) in deciding whether to reduce or increase the number of biodiversity credits to be retired.
As a result of 7.13(6) of the BC Act, in my view, a consent authority is required to take into consideration the likely impacts of the proposed development, as assessed by the BDAR, and is further able to consider those impacts under s 4.15 (1) of the EPA Act decision in a broader assessment of the 'likely impacts of the development'. Such an approach, although under an earlier legislative scheme, was upheld by the Court in Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102. Such assessment is documented below.
In undertaking this merit assessment, the findings at paragraph [190] and [191] are relevant.

[22]

Loss of Vegetation

One of the broader impacts arising from the proposed development is the extent of tree removal proposed. The evidence in the preceding section is relevant to the consideration of the merit, or reasonableness, of the impact to vegetation and fauna habitat proposed as a result of the development.
In addition, the Applicant prepared an Arboricultural Assessment Report (Initial Arboricultural Assessment) which undertakes an assessment of the trees located within the area of the development. (Exhibit M) The trees assessed for removal (prior to the hearing) in that assessment were as follows: "Tree 79, 80, 140, 141, 142 listed in this report are of high significance. Tree 42, 43, 44, 45, 46, 47, 48, 49, 92, 93, 94, 95, 103, 104, 105, 106, 107, 108, 109, 110, 111, 114, 129, 130, 133, 134, 135, 136, 137, 138, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 182, 184, 185, 186, 187, 188, 189, 191, 193, 194, 195, 198, A, B , 308, 309, 310, 311, 312, 314, 315, 318, 319, 320, 322, 323, 324, and 328 listed in this report are of medium significance. Tree 96, 102, 112, 122, 139, 163, 183, 190, 313, 316, 317, 325, 326, 327, 329 and 330 listed in this report are of low significance. Tree groups 113, 115, 116, 117, 118, 119, 120, 123, 124, 125 and 126 are listed as being low to medium significance." (Exhibit M)
The Initial Arboricultural Assessment nominates the following trees for retention: "45, 46, 47, 48, 49, 92, 93, 94, 95, 102, 103, 104, 105, 106, 130, 133, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 149, 150, 151, 152, 153, 184, 185, 186, 187, 188, 189, 190, 191, 193, 194, 195, A, B, 328." (Exhibit M)
Further, the Initial Arboricultural Assessment recommends either retention or removal for the following trees: "113, 115, 116, 119, 120, 121, 123, 124, 114, 122, 117, 118, 125, 126" (Exhibit M)
In summary, the Initial Arboricultural Assessment recommends removal of some 43 trees and retention of 46 trees (but potentially 14 more). Not all trees on the subject site were assessed in the Initial Arboricultural Assessment.
The amended plans, Issue M, made changes to lot and road layouts to allow the retention of Trees 79, 80, 303, 305, 184, 191, 193, 194, 195, 220, 235, 237, 240, 327, 135. Further, the deletion of Lots 1-7 and 14 result in the proposed retention of Trees 42-49, 93-96, 102-104, 106 and 108. (Exhibit A1) On the basis of these amended plans it could be assumed some 76 trees are proposed to be retained.
However, the draft conditions of consent state, as an agreed condition: "36.38. Tree Retention and Management The following trees are to be retained: 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,41,42,43,44,45,46,47,48,49,50,51,53,54,55,79,80,92,93,94,95,96,97,98,99,100,101,102,103,104,105,106,120,121,122,129,130,131,132,133,135,136,137,138,139,140,141,142,143,144,145,146,150,151,152,153,182,183,184,185,186,187,188,189,190,191,193,194,195,199,200,201,202,204,220,221,222,223,224,225,226,227,228,229,230,231,232,233,234,235,236,237,240,250,251,252,253,254,255,256,257,258,259,260,261,262,263,264,265,266,267,268,269,270,271,272,273,274,275,277,278,279,280,281,282,283,284,285,286,287,288,289,290,291,292,293,294,295,296,297,298,299,300,303,304,305 and 328. • Total 172 trees. Tree numbers referred to in this condition are as those identified on the Tree Retention/Removal Plan, issue H, dated 2/09/20 and prepared by LS&W - Lidbury, Summers & Whiteman. • All works within Tree Protection Zones must be supervised, documented and certified by the qualified project arborist. Any pruning of trees to be retained must be directed by a suitably qualified and experienced Arborist and must only be in accordance with AS4373 -2007 Pruning of Amenity Trees."
There is a disconnect between the amended plans, the agreed conditions and the arboricultural evidence in relation to the identification of the trees and their status as retained or removed. The difference in these sources are discussed below.
It is unclear, from a review of the aboricultural evidence, the significance of the trees that have been surveyed and located on the Tree Retention and Removal plan (Exhibit D) but have not been assessed by the Applicant's arboriculturalist. By reference to the Tree Retention and Removal plan there are 332 trees that have been surveyed as currently occurring on the subject site, of which the preceding condition proposes the retention of 172, or 51%. However, only some 103 of the trees are marked and assessed into the initial arboricultural report. (Exhibit M)
The limited nature of the arboricultural assessment of the existing trees on the site is a limitation on the assessment of the likely impacts of the development.
A limited number of trees which are proposed to be retained are located outside the periphery of the site (adjacent the property boundaries), with the exception of the area proposed to be retained to the west of proposed Road 2. As clearly evidenced in the extracted plan at paragraph [163], and the cut and fill plan (Exhibit D), the vast majority of the site is proposed to be cleared of existing vegetation and benched to allow for the development to occur. The depth of cut and fill across the site ranges from areas in cut to a depth of 2.5m to areas in fill of 2.5m.
Outside the periphery of the development, the application proposes limited tree retention in association with 'pocket parks' adjacent Road 2, 7 and Road 8 and in the vicinity of the Community Centre. The feasibility of the retention of the 172 trees proposed to be retained was the subject of arboricultural evidence.
The Applicant submits that the removal of trees within the development site is assessed and accounted for in the BDAR and the retirement of biodiversity credits.
The arboricultural experts, Russell Kingdom (for the Applicant) and Matthew Bell (for the Respondent), joint conferenced on the proposed development with the expert ecologists and prepared a joint report that was tendered in the proceedings as Exhibit 11. The experts were also called for cross examination.
Mr Kingdom and Mr Conacher's evidence is that the proposed development retains adequate trees within the site, 'particularly at the edges'. (Exhibit 11) Further, Mr Kingdom notes that the Initial Arboricultural Assessment identifies that many trees on the site fail a visual assessment and are unsuitable for retention.
In the alternative Mr Duncombe and Mr Bell maintain the view that, firstly the retention of visually significant trees has not been appropriately considered and secondly that the extent of tree removal is unreasonable.
The assessment of Mr Bell is that 'as many as seventy-seven (77) of all current native trees of the subject site will be removed or lost through cutting and filling for the construction of the development'. (Exhibit 20)
Mr Bell argues that 'there are a number of additional ecologically significant patches on (and adjacent) to the site'. (Exhibit 3) He argues that these include the following: "- the patch of trees in the north-west corner of the site. - the band of trees through the centre of the site. - the tree protection zones for the tree on the adjoining lot to the east." (Exhibit 3)
Mr Bell concludes that the development layout in Exhibit B inappropriately removes vegetation that is ecologically and visually important. His evidence was not materially different in response to the Applicant's amended layout, for which consent is sought, in Exhibit D.
Mr Leathley agrees with the preceding identification of aesthetically/ visually significant trees by Mr Bell (see paragraph [220]). However, he argues that 'given the R1 General Residential zoning of the site, the expected outcome is clearing the centre of the site, which is already significantly cleared, for residential development, with vegetation retained around perimeter boundaries where possible'. (Exhibit 9) In relation to the trees located outside the boundaries of the site, he qualifies his statement as follows: '… while the other trees identified in the centre of the site are visually appearing (sic) as individual trees; they are not what I would consider 'iconic' trees that are particularly visible externally to the site from public places and do not warrant retention in the context of the site zoning and providing an efficient development outcome consistent with the objectives of the Act'. (Exhibit 9)
Further, Mr Leathley notes that the proposed development provides for the retention of trees in a number of pocket parks as well as in the north eastern corner of the site and adjacent the western boundary. He concludes '… it is my view that there is a better result in terms of tree retention from this form of development where there is a masterplanned outcome' and he emphasises the need for the Court to consider the role of the proposed development in the rehabilitation of sections of the subject site and the implementation of the VMP. (Exhibit 18)
Following the tender of the updated cut and fill plan (Exhibit D), Mr Kingdom prepared an addendum to his arboricultural assessment. He concludes as follows: Redesigned the adjacent building so there is now a 6.62% intrusion into the TPZ. This will be an acceptable impact from the proposed building. Tree 79 Lot 83 & 89 - cut 100 to 500mm should be ok. Save See Appendix 1a for details. Tree 80 There will be a 20% of radial TPZ) and unsustainable levels of encroachment to TPZ as a result of site cut (30%) of radial TPZ) and unsustainable levels of encroachment to TPZ as a result of site cut (20% of radial TPZ) and unsuitable levels of encroachment to TPZ as a result of retaining wall (lot 181) and road construction (No. 2)." (Exhibit 21)
In summary, on Mr Duncombe's evidence, trees 79, 80, 194, 191, 193, 194, 195, 133, 135, 149, 150, 328 and the two eucalyptus species in the south east corner and a tallowwood adjacent the water quality basin (T303), are unlikely to be retained due to the impacts to their TPZ.
Mr Duncombe's oral evidence was that there are proposed unsustainable levels of encroachment to the TPZ of Trees 79 & 80 as a result of the cut and retaining walls proposed for lots 51, 82, 83 and 85), the community centre and the construction or Road 4.
Further, Mr Duncombe's oral evidence was that Trees 184, 191, and 193-195 would suffer unsustainable levels of encroachment as a result of site cut, retaining walls for Lots 151, 153, 154, and 173, the construction of Roads 7 & 8 and the proposed foot path. To ensure the viability of Trees 184, 191, and 193-195 Mr Duncombe argues it is necessary for lots 154, 173, 151 and 2153 to be kept at natural ground levels.
I note that Mr Kingdom's oral evidence in relation to Trees 184, 191, and 193-195 was: '… if we were able to leave the adjoining lots around those trees at natural ground level, there would be practically no intrusion into the tree protection zone and it would improve the long term viability [of these trees].' …. 'I would prefer [the park] to be expanded. I tried to get that, but I was not able to achieve that. I believe it would be a better outcome.' Transcript 4 September 2020 107.11-20
The arborists also gave oral evidence in relation to Tree 328 which is located in the proposed northern pocket park. This tree is proposed for retention by condition. In his evidence Mr Duncombe expressed concern that Tree 328 would suffer significant (more than 20%) impact to its TPZ and unsustainable encroachment due to site cut for Lot 51, road construction and car parking. (Exhibit 21) In his oral evidence Mr Kingdom agreed and expressed the view that Tree 328 should be removed.
In his oral evidence Mr Kingdom also conceded that Trees 149, 150, and Tree 108 should be removed despite them being nominated for retention.

[23]

Impact of Cut and Fill on retained trees

As part of a broader concern in relation to the impacts arising from the applicants proposed cut and fill, Mr Nash also raises concern about the extent of cut, fill and or retaining in proximity to trees that have been identified for retention. These concerns were also the subject of evidence from Mr Pollard. As part of their written submissions the Respondent provides the following summary of the evidence of these two experts: Nash Pollard
The proposed open space between roads 7, 8 and 2 (T 12/10/20 at 9.44-11.50 and Ex 27, pp1-2) Northern pocket park Adjoining Road No. 7, excavation in the order of 600 to 700mm and the two car spaces would need to be amended because there would be a difference in level in the order of 400-500mm Along eastern [boundary] retaining wall in the order of 300 to 400mm (lot 151); 0.5 m to 700mm (lot 153) Along the western [boundary] retaining in the order of 300mm (lot 150); 0.5m or more (lot 154) Along the southern boundary [retaining] in the order of 1.0 to 1.5m Northern pocket park/ Southern pocket park Southern pocket park Agreed that an adjustment is beneficial and necessary (T 12/10/20 at 27.12-14 and 47-50) Figures above are the northern boundary Software that creates these levels can remodel (T 12/10/20 at 27.31-35) Lots 173, 174, 187, and 188 have no final pad levels The extent of change is relatively minor and has a very significant benefit in terms of the retention of trees in the middle park and the southern park and the relationship of those parks with the lots immediately adjacent on all sides and in relation to the two car spaces on Road No. 7 and in relation to making it very simple for disabled access to be [achieved] and the DDA to be complied with (T12/10/20 at 27.41-47). Towards [the] northern end of lot 174, cut of at least 1.5m reducing down to in the order of 0.5m. Almost at grade on the southern boundary Lot 173 will be in cut Lots 187 and 188 are showing retaining walls so cannot answer whether likely to be at grade Pathways between, linking pocket parks Not physically possible in terms of achieving access and accessibility given the changes in level
Trees Nos. 79 and 80 (T 12/10/20 12.8-13.33 and 38.50-39.15 and T 13/10/20 at 12.42-48 and Ex 27, pp 3-4) Tree No. 80 Trees Nos. 80 and 79 An excavation along the south western side of the park containing Tree No. 80 in the order of 2.0m; a 1.3-1.4m change in the levels of the road directly adjoining the parkland containing Tree No. 80 to the north; between 1.0m towards Road No. 4 down to 300-400mm at the southern end of lot 51; in the order of 1.4 -1.5m to the west (no finished pad level for the office/manager residence) Relied on his understanding of the arborists evidence and plan (T 12/10/20 at 30.6-9), on watering (30.2-3), on moving the community centre amenities and raising other floor levels (30.11-18), and on lot 82 being given a terrace at its rear (30.35-40) Tree No. 79 The extent of excavation along the north eastern boundary of the park holding Tree No. 79 in the order of 2.0m; to the southwest (lot 86) in the order of 1.0m down to about 600mm.
The park on Road No.4 between lots 54 and 55 (T 12/10/20 at 13.39-14.31 and Ex 27, p 14[sic]) The plan has parking spaces 33 to 40 as unexcavated but they would not be able to be accessed with the road level being 750mm below; there would need to be a retaining wall around the parking spaces A level of cut of >0.5m on [the] northern boundary and western boundary adjacent car space 40 being in the order of 700 to 800mm it may impact on Tree No. 328 Said that the logical thing to do with the park would be retain natural ground level around Tree No. 328 but allow the ground level to fall towards the southwest as it does currently (T 12/10/20 at 31.11.14) and some minor adjustments could be made that would reduce the level difference between the corner of lot 54 and the carparks adjacent (31.22-24) It is fill in the order of >0.5m in the southwestern corner of lot 55. That extent of fill may have an impact on the trees proposed to be retained on that portion of the park. To the south, for lot 77, an excavation probably <0.5m at the southern boundary; lot 78 an excavation in the order of 1.0m; lot 54 an excavation in the order of 1.5m at its worst adjoining car space 3.
Road No. 3 (lot 21) and Road No. 4 (lot 48) (Ex 27, p 9[sic]) Agreed that the same thing (as Ex F) be done for lot 48 in regard to that corner (T 12/10/20 at 31.21-42), and that it is possible to prepare a landscape plan that takes into account those levels (32.32-33) The extent of fall in the north eastern corner of lot 48 means the retaining wall will be in the order of 2.0m - would not offer much amenity to any future site.
Road No. 3 and lots 28-31 (T 12/10/20 at 14.50-15.37 and 39.20-26 and Ex 27,p 7 [sic]) A height difference between Road No. 3 and lots 31 and 30 if 1.7m below the road level; lot 29 in the order of 1.6m below the road level; lot 28 1.5m below the road level. There is an opportunity for Road No. 3 to be lowered slightly which would create less of a contrast between the road level and those lots. The retaining would be just on the northern side of the road; would provide less of a cut towards that northeastern corner of each of those lots. (T 12/10/20 at 34.20-26) There are two issues: amenity of the dwellings being significantly below the road level given that they are very small sites. The second issue is there may be difficulties in terms of the placement of moveable dwellings, manufactured dwellings on those sites. There is also the issue of driveways given the limited setvabacks and the like, given the demographic they are expecting is the over-55s, there may be some physical difficulties getting accessible sites.
Allotments with shallow depth (91 to 94 and 97 to 100) (T 12/10/20 at 15.45-16.12 and Ex 27, p11 [sic]) There are options that provide private open space both to the street front and the rear of the dwellings (T 12/10/20 at 33.44-47) Concern raised in three joint reports, shallow depth lots, a 1.0m difference between each of 91, 92, 93, 94 and 97 (the lot to the south) - you are going to have the potential for lots 97-100 to the south to have a poor amenity in terms of overshadowing because the dwellings on 91 to 94 are to the north of them
Road No. 3 in the north-eastern corner (T 12/10/20 at 16.14-20, see also Ex 27, p9) See response to 5. above Recommendation that where Road No. 3 does the big curve in the corner would be one area that a retaining wall could be useful and prevent the removal of a number of trees that are proposed to be retained there.

[24]

(Respondents written submissions dated 10 December 2020)

I agree that the preceding summary is a fair representation of the respective evidence of the experts.
It was Mr Nash's oral evidence that 73% of the proposed lots will require some form of retaining wall, and further that based on the relative level agreed for the floor level of the proposed community facility (RL 15.0):

The cut proposed in proximity to Tree 80 is likely to be some 2m;
That the outdoor area linked with the community centre is approximately 2m above the floor level of the proposed community centre.

In his oral evidence Mr Pollard agreed that the proposed development plans included preliminary civil design plans that may require amendment to fill and cut levels, with the qualification that Mr Nash's evidence is based on levels at the centre line of the road and fails to account for the cross fall of the road itself. Other than this qualification, in his oral evidence Dr Pollard did not argue that Mr Nash's calculations were in error, but rather focused on how the development could be (and in some cases should be) amended to address Mr Nash's concerns.
Importantly, Dr Pollard argues that between the grant of consent and the subsequent application for a construction certificate there would be inevitable refinement and changes as part of the detailed design phase. It was his view that the issues raised by Mr Nash were capable of being addressed in this process. He concludes that the cut and fill proposed on the site can be remodelled (through a change of software parameters) and the amendments are minor.
Mr Leathley, Planning expert for the Applicant, also provided evidence to the Court in relation to Mr Nash's concerns about the proposed site levels. He agreed with Mr Pollard that the level changes required to address Mr Nash's concerns are 'minor' and that they would be dealt with at the detailed design stage.
Finally, whilst Mr Nash accepts that the remodelling discussed by Mr Pollard is technically feasible, he disagrees that the Court should grant consent based on a condition requiring such changes to be made. His reasoning is:

It would be uncertain what development the Court is granting consent to.
That the proposed development, being a MHE, contains small lots which, in his view, restrict any flexibility to alter the cut and fill regime without being sure that new or different impacts would not result.
Any post consent changes will influence access to the parks, the level of cut and fill around trees proposed to be retained, the arrangements for access and levels around the Community Centre, etc. The extent of components interacting within the development increases the uncertainty.

Given the breadth of changes it is Mr Nash's view that any amendment should occur prior to the grant of consent.

[25]

Visual Impact and impact on existing and future character of the Tallwoods area

The Respondent's contentions argue that the proposed development will have a detrimental visual impact for adjoining residential dwellings and from the public domain.
In relation to the impacts arising from the proposed tree removal, Mr Kingdom's evidence is that the existing visible roadside vegetation bounding the north and south of the site screens much of the site from view. It is his evidence that 'suitable replacement trees in a landscape plan will address the issue [of visual impact]'. (Exhibit 11)
Mr Conacher maintains his view that any impacts are offset via the BDAR and the resultant purchase of biodiversity credits. He concludes that the development 'is a positive environmental outcome for a highly disturbed site'. (Exhibit 11)
In the alternative, Mr Duncombe argues that 'the removal of large trees will impact the visual outcomes for the wider visual character of the village'. Similarly, Mr Bell argues that the extent of tree removal will detrimentally impact the visual outcomes for the wider visual catchment. (Exhibit 11)
In collaboration with Mr Nash, the planning expert for the Respondent, Mr Bell argues that the following comprise the visual/ aesthetically significant trees (or groups of trees) on the site: - The patch of trees in the north-east corner, - The patch of trees around the dam in the central north, including a large tallowwood, - The patch of trees on the north-west side of the existing dwelling. - The two (2) large tallowwoods in front of the community centre, - the trees in a zone 10-metres wide along the western part of the northern boundary of the site fronting Coastal View Drive, and - The masked owl nest tree. (Exhibit 13)
Further, Mr Bell notes that '(t)here is a band of existing native trees along the southern boundary of the site which occur in an existing RE1 - Public Recreation zone of approximate width of 13-metres and area of 0.33 hectares. This is an important green buffer/ visual screen which is proposed to be retained.' (Exhibit 3)
Mr Leathley and Mr Nash joint conferenced in relation to the Respondent's contention that the development will have a detrimental visual impact which is exacerbated by the proposed vegetation removal. Evidence on visual impact was also given by Dr Pollard who prepared a series of photomontages of the proposed development, Exhibit G, reflecting the amended plans.
Mr Nash's evidence is that the detrimental visual impact will arise through the intended removal of existing vegetation and through the density and character of the proposed development. Specifically, he argues that:

The new entry and Lots 1-7 will necessitate removal of most of the trees in this area of the site, which, in combination with the proximity of Lots 1-4 to Coastal View Drive provides a poor setting for the MHE. (I note that since this evidence Lot 1 has been deleted in the amended plans).
That the grid layout adopted by the proposal emphasises it urbanity.
That the retention of Tree 79 and 80 is a priority from a visual amenity perspective. He argues that given their significant height (some 30m) they should be retained and incorporated into the public domain for the MHE to provide a positive visual benefit and 'to break up the negative cumulative visual impacts arising from the seemingly continuous strips of housing laid out on a narrow grid street system'. (Exhibit 8)
That the density of the built form, which is more akin to that of medium density residential, is not consistent with the character of Tallwoods. (Exhibit 8)

Mr Nash concludes that the proposed vegetation removal and the density and character of the proposed development could not be considered to be compatible with the existing or likely future character of Tallwoods. He argues the removal of the existing vegetation will exacerbate the visual impact of the development. (Exhibit 8) He describes the detrimental visual impact as follows: "In my opinion, the combination of small allotment sizes, site coverage and minimal building setbacks will result in a significantly uncharacteristic visual outcome when viewed from elevated locations overlooking the subject site, in particular from 3, 5, 7 and 11 The Bridle Path and 16 Lake View Way [and] potentially from 1 and 2 The Sand Tap (sic) and from the elevated portion of Coastal View Drive,… Such an outlook could not, in KN's view, be considered to be consistent with or compatible with the existing and likely future character of Tallwoods. It would be seen as a 'sea of roofs' unpunctuated by any meaningful vegetation. In KN's view the removal of much of the vegetation within the site will exacerbate the visual impact of the development when viewed from the adjoining elevated locations." (Exhibit 9)
In his oral evidence Mr Nash accepted that the deletion of lots fronting Coastal View Drive, and the subsequent ability to retain existing vegetation in this area, is a positive amendment to the application and will improve the visual impact of the development from streets proximate to its northern end. However, in the supplementary joint report following the amended plans, Mr Nash concludes that 'the reduction in sites is minor and will not diminish the visual impacts of the proposed development when viewed from Coastal View Drive, The Bridle Path, The Sand Trap and Lakes View Way'. (Exhibit 14)
In response to Mr Leathley's evidence Mr Nash argues that whilst the retention of existing vegetation in the 15m wide RE1 Public Recreation zoned land will screen views of the MHE from Blackhead Road, its density and effectiveness will be impacted by the need for it to function as an outer protection area as identified in the Bushfire Assessment Report (Exhibit N).
Mr Nash concludes that the outlook from these affected properties, and views from the public domain, could not be considered compatible with the existing or likely future character of Tallwoods. Further, he argues the removal of existing vegetation will exacerbate the visual impact of the development, an impact Mr Nash is not persuaded will be offset by the revegetation and other actions proposed under the VMP. (Exhibit 7)
Mr Leathley also provided evidence to the Court on the visual impact of the proposed development. He emphasises that in assessing the potential visual impact the following are relevant considerations:

The fact that the R1 General Residential zone permits a broad range of housing forms, including multi dwelling housing, residential flat buildings, and seniors housing with lot sizes of some 450m², FSR of 0.6:1 and a maximum height of 8.5m;
Residential allotments adjoining the subject site at 2A Coastal View Drive and 1, 3, 5, 7, 9 and 11 The Bridle Path could have new dwellings constructed on the subject site within one metre of the boundary under the NSW Complying Development Code (CDC). This is relevant when compared with the proposed MHE which has seven sites proposed in this area of the site, set back five metres from the boundary. (I note that the effect of the amended plans which were prepared subsequent to the joint report have deleted these seven sites, increasing the proposed setback);
That the landscaping, and the site overall, will be managed centrally. (Exhibit 7)

On the above reasoning Mr Leathley's evidence is that the MHE proposal will deliver a better outcome in terms of setback and buffer to the adjoining residential properties than a conventional residential subdivision. (Exhibit 9)
However, Mr Leathley agrees with Mr Nash that there will be a loss of visual amenity for the nominated properties. He argues however that the reasonableness of the proposed impact should be considered in the context of the R1 General Residential zoning and the inevitability that the site will change from a rural grazing paddock to a residential use. Further, his analysis of the views impacted is that the views are expansive (to the east and south over the coast and the coastal hinterland) and the subject site represents only a portion of the foreground of the view. He concludes: "The MHE is a planned community with planned landscaping and housing forms. The outcome is smaller buildings interspersed with trees, green space and road network. The likely outcome of a conventional subdivision is larger two storey buildings with no control on landscaping, housing form or colours, material reflectivity and no green space as is the case with the existing residential pattern of Tallwoods." (Exhibit 9)
Mr Leathley also provided evidence to the Court on the amended plans which included a set of typical architectural details for the seven dwelling types proposed to occupy the MHE sites in the future. Mr Leathley concludes that the provision of this information allows for a better assessment of the visual impact arising from the proposed development. He maintains his conclusion that any impact is acceptable. In addition to his previous evidence Mr Leathley states: "- In regard to The Sand Trap - the development site can only be partially seen from Number 2 and Number 30, and the dwelling at Number 320 has its dwelling orientation and view lines into the site blocked by the heavy vegetation on the adjoining property. The proposed development will appear as an extension of the existing residential form to these properties and with the retention of the vegetation along Coastal View Drive (CVD), there will be no significant loss of visual amenity. - In regard to The Bridle Path - the dwellings on the southern side of the road have direct views across the site, but the development site is obscured to a large extent by the dwellings on the southern side for the dwellings on the northern side. Again, the development will appear as an extension of the existing residential form to these properties and with the retention of the vegetation along the northern boundary, there will be also no [more] significant loss of visual amenity for this proposal than any other form of residential development permitted with consent in the R1 zoning. - Lake View Way- the site is only directly visible from No. 16. There are no direct view lines into the development site from the lots on the eastern side, and other sites on the wester side are obscured by existing or future dwellings located on 10 & 11 The Bridal Path (see photo 1 above). This area is hight with the primary views to the west. Further, the development site is located at the foothill below existing residential development along The Bridal (sic) Path. Consequently, the proposed development will appear as an extension to this existing residential development. - In regard to the residential properties located along CVD- direct unobstructed views away from the site frontage are not available, they are filtered by the existing residential development and vegetation. The development will appear as an extension of the existing residential development that exists below these sites. Based on the above the visual catchment is relatively limited. Within a landscape context, the site lies at the foothill of a ridge on which these dwellings are located so is less visually sensitive - higher elevations, ridge tops and hills are more visually sensitive. This is a foot hill which is not typically a sensitive visual element, and is visually enclosed. The development in my view will appear as an extension to the existing residential development, albeit with more site vegetation, side setbacks and smaller building forms." (Exhibit 14)

There will be approximately 10% less area under roof on the subject site than could be expected from a conventional residential subdivision.
There will be more green space, particularly around the perimeter of the site and between buildings.
All the significant trees can be retained in contrast to the likely outcome of a conventional subdivision.
The establishment of a native vegetation corridor along the western boundary of the site will increase the natural setting of the site, compared with the potential sports fields proposed by the Council.
The VMP provides for native planting and revegetation which will provide better visual amenity for any residential property overlooking the subject site.
There is a greater ability under an MHE development to control the scale and materials of the subject dwelling than is possible for development which falls under CDC, such as standard forms of residential dwellings. Any consent should include a condition for roof materials to be non-reflective. (Exhibit 14)

Mr Nash and Mr Pollard also provided evidence to the Court on the likely impact of the development on the character of the locality. The Respondent's contentions argue that the intensification of residential development proposed by the development application is out of character with adjoining development.
The following aerial photograph shows the pattern of existing development in proximity to the subject site. It is appropriate to consider this extract in conjunction with the plan at paragraph [15] which seeks to demonstrate the extent of approved development in proximity to the subject site.
Mr Nash's view is that the existing and desired future character (DFC) of residential development in Tallwoods is, and will be, predicated in part on the minimum lot size control in LEP 2010. For the subject site the relevant minimum lot size is 450m². Mr Nash also notes that the applicable FSR control (0.6:1) will be influential in determining the character of future development.
Mr Nash notes that the FSR and lot size standards under LEP 2010 are consistent for the subject site and for the existing residential development of Tallwoods. He identifies the following prevailing characteristics of the existing character of the Tallwoods locality:

The subdivision and development pattern are atypical in that they focus development around the 18-hole golf course.
The dwellings are predominately detached single storey homes on relatively large allotments.
There is a significant amount of retained vegetation that exists in the residential streets and the golf course.

Mr Nash asserts that if the preceding characteristics were applied to the development of the portion of the subject site zoned R1 General Residential, it would yield 60-80 torrens title lots in a standard residential subdivision. (Exhibit 8)
In contrast to the existing character of Tallwoods Mr Nash concludes that the combination of small allotment sizes, the extent of proposed site coverage and the minimal building setbacks of the proposed development create an uncharacteristic form of development. (Exhibit 8). Further he argues that the layout of the development, in particular the length of the proposed roadways, their narrow width and minimal landscaping will, in his view, create a 'built form that is largely continuous to the eye when viewed from the public domain'. (Exhibit 8)
In the supplementary joint report, following the grant of leave to the amended plans, Mr Nash notes the reduction of proposed home sites to 184 and the retention of trees 79 and 80. However, he maintains his concerns about the compatibility of the development of with the existing character of Tallwoods and concludes the proposed development, even as amended, is not compatible with the character of Tallwoods.
In acknowledging the amendments to the development fronting Coastal View Drive and Blackhead Road Mr Nash states: "… it is acknowledged that the view of the proposed MHE will largely be screened by vegetation within the RE1 zone[d] area along the northern side of Blackhead Road, subject to the existing vegetation not [being] required to be thinned out to comply with Rural Fire Service requirement as it is identified as an 'Outer Protection area' under Figure 5- APZ and BAL Rating Site Plan prepared by Clarke Dowdle and Associates. … In respect to the view from Coastal View Drive the substantial loss of mature trees within the site adjacent to the frontage of Coastal View Drive … and the proximity of dwellings in Lot 1-12 inclusive will ensure that the view from Coastal View Drive will be dominated by the built form of manufacture[d] homes at a density not compatible with the character of Tallwoods." (Exhibit B)
I note that subsequent to the joint report the Applicant was granted leave for a further set of amended plans, which deleted lots 1 and 7-12. The experts undertook further joint conferencing. Despite these further amendments, Mr Nash did not resile from his concerns about the lack of compatibility of the proposed development with the existing and DFC of Tallwoods but maintained them in his oral evidence and in response to the photomontages produced by Dr Pollard.
In summation, Mr Nash argues that his assessment that the proposed development is out of character with adjoining development, and not compatible with it, arises from a combination of: the proposed small allotment sizes, the site coverage and minimal building setbacks, the lack of pockets of vegetation within the proposed MHE to create visual separation and the impact of the loss of mature vegetation. (Exhibit 8)
In response to Mr Nash's evidence Dr Pollard argues that lot size is a poor approximation for residential densities. He argues that this is particularly the case where the zoning allows for a range of residential forms, including residential flat buildings, boarding houses, multi-dwelling housing, semi-detached dwellings and seniors housing. Further, he argues that the minimum lot size control only applies to an application where subdivision is sought, which is not part of the current application. He argues that the same reasoning supports a conclusion that FSR is not a useful indicator of the character of an area.

All the proposed dwellings are single storey and are relatively smaller in area than typical dwellings (by which he means standard detached residential houses);
There are substantial areas of retained trees in areas around the subject site.

Dr Pollard disagrees with Mr Nash that visual density is determinate of character, rather arguing that it is determined by a range of factors which he identifies as:

Built form,
Street presentation and address,
Alterations to the landform,
Landscape, and
Building function. (Exhibit 8)

Further, Dr Pollard argues that the following developments in the vicinity of the subject site are relevant to establishing character:

'Lakeside Gardens' at 17 The Boulevarde. A townhouse and villa development that Dr Pollard describes as 'a tightly sited cluster of connected townhouses and villa units near the golf course, that centres around a communal area containing a swimming pool'.
'Hilltop Grove' off Hilltop Parkway which consists of two storey semi-detached dwellings and single storey villas which overlook a communal area.
43-47 Eastern Valley Way which contains four large freestanding dwellings with limited side setbacks and narrow frontages. (Exhibit 8)

Dr Pollard further argues that the locality also contains visually prominent retaining structures and earthworks, particularly on elevated sites and that these are relevant to the existing character of Tallwoods. (Exhibit 8)
It is Dr Pollard's view that 'the character of the proposed development will be influenced by a range of factors, including the quality of its landscape treatment, the extent of tree cover - particularly on the exposed boundaries, the nature of its layout, and the quality of the design of the community centre'. (Exhibit 8)
Dr Pollard argues that the decision which rezoned the site to R1 General Residential will inevitably lead to proposed uses that will necessarily change the appearance of the site. Dr Pollard disagrees with the view of Mr Nash that the proposed development will have a visual impact. Instead Dr Pollard argues that the visual access to the site from the public domain is limited and consists predominately of filtered views. He describes those views as follows: firstly across the site from Coastal View Drive as it descends the hill when moving in a southerly direction; secondly glimpses from Coastal View Drive into the site from the east and west where the road runs parallel to the site boundary; and finally, filtered views from Blackhead Road. Dr Pollard argues that any views from the public realm in The Bridle Path, Lake View Way or The Sand Pit are unlikely to be significantly affected by the proposed development. (Exhibit 8)
In analysing the first and second views he identified Dr Pollard argues that the view to the site (and the proposed development) is partially obscured by existing development, street trees, and the proposed landscape treatment. Additionally, he argues that the primary aspect of the first and second view, is to the distant ranges, with the site only forming a moderate portion of the view. Finally, he argues that the existing fall across the site, the proposed site benching, street tree planting, retained trees and the proposed landscaping of the site (including the revegetation of the western boundary) will all contribute to the visual softening of any view of the subject site. Analysing the proposed development in this first and second view Dr Pollard notes that whilst the view will encompass some roof forms, they will be a combination of simple planar shapes and given the proposed designs are not a repetitive row of uniform roof forms, subtle variation is between dwellings is expected.
In relation to the views to the site from Blackhead Road, his third view, Dr Pollard concludes that whilst at some points it will be possible to view the proposed development through trees, the substantial setback, the additional landscaping and the existing mature trees will retain the leafy character of Blackhead Road.
In conclusion Dr Pollard's evidence is that '(a)ny higher use of the site, consistent with the relevant R1 [General Residential] zone objectives, will see result in (sic) a visual change to its immediate area, that some who live nearby may not welcome. The removal of some vegetation within the site will alter its appearance from a rural grassland dotted with groups of trees, to a more developed area supporting housing. Any visual impact assessment consideration should go to assessing any proposal in light of the zone objectives, and what would constitute a good visual outcome, given the higher use of the subject land.' In contrast to the likely outcome arising from a standard form subdivision, Dr Pollard notes the following advantages of the proposed MHE: "… the subject proposal retains the trees in the RE1 zone along the whole length of (the) Blackhead Road frontage. Substantial stands of trees located towards the north-western corner and north-eastern corners of the site are also retained, and the western side RE1 area is vegetated as wetlands, passive recreation area. Trees are also retained in landscaped communal areas located between Roads 4 and 5l and between Roads 7 and 8; and Roads 8 and 2." (Exhibit 8)

[27]

Submissions

Mr Robertson objects to the Court taking into account Mr Nash's evidence in relation to cut and fill as a reason for refusal of the development application. His reasoning can be summarised as follows: 1. the issue raises concerns of procedural fairness for the Applicant as the Respondent's written submissions introduce a new issue concerning the certainty of the development. Mr Robertson submits that this goes beyond the scope of contention 2 and notes that the Respondent failed to seek leave to amend their contentions. Further, they were not the subject of joint conference and: "The cut and fill plan has been available for the whole of last year and it was open to Council to raise these matters at any time, and we would have accommodated it. Immediately after the issue emerged from the arborists' joint evidence we sought to address it by plan amendments but were refused leave on 7 September 2020, on case management grounds. Council has unfairly taken advantage of that refusal by introducing what in substance is a new case, and now seeks to take advantage of it by arguing for the refusal of consent because we have not been permitted to address it." (Applicant's written submissions in reply, 4 February 2021) 1. Further, that if the Court intends to refuse the application on grounds of uncertainty, in accordance with the rules of procedural fairness, it 'must notify the parties that it intends to treat a new ground as a ground for potential refusal, and the parties are then given an opportunity to call evidence and address it': Camberlee Investments Pty Ltd v Shoalhaven City Council [2017] NSWLEC 1585 at [81], Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [129] citing Pet Carriers. (Applicant's written submissions in reply, 4 February 2021)
Notwithstanding the preceding, Mr Robertson argues that the evidence of Mr Pollard and Mr Leathley should be preferred by the Court, namely that the concerns about the levels and cut and fill raised by Mr Nash, can be resolved during detailed design prior to the submission of a Construction Certificate. He submits that these changes are minor, they 'can be effected by changing parameters in the software program and would have a very significant benefit by retaining the trees and the parks and making it simple for disabled access. Further, if the changes are not minor, it would add support to his arguments that the Applicant is prejudiced by the lack of notice". (Applicant's written submissions in reply, 4 February 2021)
Mr Robertson also argues that Mr Nash's evidence, and the Respondent's submissions, fail to consider the effect of the proposed revegetation and landscaping included in the development application. It is Mr Robertson's submission this omission results in the assessment of the merit of the application lacking perspective and balance. Further, it "fails to take into account the fact that the [RE1 Public Recreation zoned] land is largely denuded of native vegetation and that the site for urban development [R1 General Residential zoned land] contains a few scattered old trees and no mid storey or ground vegetation." (Applicant's written submissions in reply, 4 February 2021)
Mr Robertson draws the Court's attention to the Council assessment report for the development application which was before the Respondent. He notes that the Respondent engaged an independent planning consultant to complete the assessment of the development application, prior to the reporting of the development application to the Council for determination. He notes that a draft of the report, Exhibit X, recommends the approval of the development application. Whereas the final report, Exhibit 4, recommends refusal. I have reviewed both reports and considered Mr Robertson's detailed comparative analysis of the two documents. In summary Mr Robertson argues that little change was made to the assessment or reasoning of the report between the two versions, despite the changed recommendation.
Mr Robertson submits that the Court should give no weight to the final assessment report, Exhibit 4.
In relation to character, in contrast to Ms Irish, Mr Robertson argues that Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 (SJD DB2 Pty Ltd) is irrelevant to the issue of the compatibility of the character of the proposed development with the locality. His reasoning can be summarised as:

The Court in SJD DB2 Pty Ltd decided it was open to the Commissioner to give weight to existing approvals in the context over the controls in the applicable LEP (eg FSR and Height) and the character statement in the DCP.
SJD DB2 Pty Ltd asked a different question (whether a breach of the height should be approved) to the decision before the Court in the current matter which is focussed on compatibility. Neither the factual or the legal basis of the two matters is similar.

However, Mr Robertson does note that in SJD DB2 Pty Ltd Preston CJ did reject a submission that taking into consideration approved or constructed development in assessing the merit of an application was irrelevant. Mr Robertson submits it is relevant for the Court, in considering compatibility, to consider what forms of development have been approved within proximity of the subject site.
Mr Robertson argues that more relevant to the Court's consideration of compatibility is the decision of the Court in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture), and the following planning principle from that decision: "22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character."

There is no reason to expect that the form of development already established in Tallwoods would necessarily be reflected on the subject site.
Council has consented to medium density development adjoining the land to the north and east of the subject site. (refer paragraph [15])
Character is not confined to what exists, but includes desired future character, and where the planning controls envisage a change in character case law argues that compatibility with future character is more relevant citing: Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146 at [55-56]; Project Venture at [23].
The existing and approved development adjoining the site do not reflect the conventional 450m² lots relied on by Mr Nash.
On the evidence of Dr Pollard, the assertion that the form of development established in Tallwoods is low density is flawed.
The existing housing at Tallwoods and the subject site are separated by clear topographic distinction (one is on the slope of the hill, the other is on the bottom).
The minimum lot size relied on by Mr Nash does not apply to a number of permissible forms of development in the R1 General Residential zone, including: seniors housing, multi dwelling residential, group homes, boarding houses etc.
That district views incorporating residential development is characteristic of the zone and the locality.
The land is zoned for development, there is an expectation that it will change in form and character.
The proposed development is superior to an unplanned, incremental change in that the MHE proposes a built form of controlled height, colour, materials, articulation, and the revegetation and management of the adjoining RE1 Public recreation land.

Finally, Mr Robertson argues the Court should reject the notion that character is largely determined by lot size and FSR and the Court should prefer the evidence of Dr Pollard as summarised at paragraph [269] which is more consistent in approach with the planning principle in Project Venture. Mr Robertson further argues that the Court should prefer the evidence of Dr Pollard, in part, due to his preeminent experience and qualifications, over those of Mr Nash.
In relation to the assertion that the proposal will diminish urban amenity Mr Robertson concludes that although some MHE's are characterised by poor urban design, that is not the case of the amended proposal before the Court. He argues it has firstly a variety of roof and dwelling forms to provide articulation. Secondly, it is not correct to say the street form proposed is any different to the form that may be expected on gently sloping land, the roads are sinuous and provide interest. Thirdly, views to the site will be mediated by existing and proposed landscape, recessive colours and setbacks. (Applicant's written submissions 24 November 2020)
Mr Robertson submits that the proposed development meets the objectives of the zone by introducing a variety of housing. He submits that: "Council's argument depends on sameness rather than compatibility, whereas Dr Pollard assesses character by reference to the same concepts as the planning principle [Project Venture]. The argument that a change in existing character was sufficient to establish incompatibility is exactly what Project Venture cautions against, because on that basis every upzoning would be ineffective." (Applicant's written submissions 4 February 2021)
Mr Robertson concludes that lack of compatibility, applying the test in Project Venture, is not a basis for refusal of the application.
Ms Irish submits that, on the evidence before it, the Court should conclude that the amended proposal will have adverse visual amenity impacts on adjoining dwellings, the public domain and more distant properties that overlook the site. Further, she argues that the visual impact is exacerbated by the proposed loss of vegetation.
Ms Irish argues, citing SJD DB2 Pty Ltd at [52], that the zoning of the land, the objectives of the zone, the landuse table, and the relevant development standards 'frame the character and built form of the neighbourhood or area and shape the desired future character. Applying this approach, she argues it is relevant that an MHE is, on her submission, an innominate use (ie. not expressly provided for) in the R1 General Residential zone, and prohibited in the RE1 Public Recreation zone.
Further, she concurs with Mr Robertson that 'developments that are approved or constructed in a neighbourhood or area change the built form and character that exist at any particular time'. (Respondent's written submissions 10 December 2020) She submits that this change occurs in response to the provisions of LEP 2010, existing consents and the EPA Act.
Ms Irish argues that Dr Pollard's evidence fails to reflect the impacts of cut and fill, or the need for maintenance of areas of the site as inner or outer protection zones for bushfire, on vegetation removal on the site. In failing to take these factors into account in considering the feasibility to retain vegetation, Ms Irish argues Dr Pollard does not adequately account for the impacts of the development in analysing the view of the proposed MHE from both Blackhead Road and Coastal View Drive. She states: "An examination of the subsequently provided details of the proposed site benching on which Dr Pollard relies, discloses a wholesale failure to take the opportunity to design roads which have regard to the topography of the site, along existing contours, so as to minimise the substantial earthworks and benching (retaining walls/ edge beams) to create manufactured home sites." (Respondent's written submissions 10 December 2020)

[29]

Environmental Impacts

In relation to flora and fauna impacts arising from the development I note that the proposed development includes the removal of nine hollow bearing trees (with a total of 42 hollows). This is a direct impact, in addition to the tree removal detailed in the proceeding, that arises from the proposed development.
Whilst I accept the evidence of Mr Conacher that the development will also provide for revegetation and habitat restoration, including nest box installation. I accept Mr Bell's concerns that this will concentrate habitat at a density and in a spatial arrangement that does not adequately mitigate the loss. Further, the replanting of the nominated species will take time to reach maturity. The proposed development will result in both a loss of habitat trees and a loss of significant vegetation.
Further, I accept Mr Bell's criticism that the BDAR, the VMP and the development plans are inconsistent and not appropriately integrated, making it difficult to assess and weigh the positive and detrimental impacts that will arise from the proposed development.
In their evidence a number of experts detailed the comparative impacts of the proposed development against that of a standard subdivision. I have given this comparison some weight, but given the diverse list of permissible uses in both the relevant zones, in my view the comparative extent of impacts of an MHE in comparison to a 'standard residential subdivision' or a 'traditional subdivision' in not determinative of the acceptability of the impacts proposed by the actual development for which consent is sought.
However, I do accept the evidence and submissions that the centralised management of the MHE is a relevant factor in giving weight to the positive revegetation and management proposed by the development. I have given this aspect weight in assessing the likely impacts of the development: s 4.15(1)(b) of the EPA Act.
Another of the material impacts arising from the proposed development is the extent of tree removal proposed. As detailed in paragraph [204] and following the extent of tree removal proposed varied throughout the conduct of the hearing. In part this arose from:

The amendment to the proposed development which resulted in greater tree retention [see 208];
The fact that not all trees on the site were assessed by the Applicant's arborist;
The difference in evidence between the experts as to the likely retention of trees where they are subjected to the extensive cut and fill works.

The oral evidence of Mr Kingdon, resiled from his documented conclusion of the potential for retention of a number of trees.
The conditions of consent (agreed between the parties) note the intent to retain 172 trees (or 51% of the existing trees) on the site.
I am not persuaded by Mr Leathley's evidence that the fact of the R1 General Residential zoning of the site is axiomatic with the expected outcome of the clearing of the centre of the site for development. The desire to balance both the orderly and economic use of land with the protection of the environment is captured in the aims of LEP 2010 at c 1.2. In my view the extent of tree removal directly proposed by the development, as well as that likely to arise from the substantial earthworks and construction proposed in proximity to retained trees, is an impact that warrants refusal of the application: s 4.15(1)(b) of the EPA Act. My reasoning is contained in the following paragraphs.
The addendum to Mr Kingdom's arboricultural assessment is predicated on amendments to the Applicant's development application which are not before the Court. In particular changes to the design of the entry of the community centre to reduce the conflict with Tree 79 are key to his conclusion that the resultant impacts to TPZ are reduced to a 6.62% intrusion. (Exhibit A2)
Mr Kingdom's oral evidence, when pressed about the cut and fill impact to Trees 184, 191, 193-195, 328, 149, 150 and 108, all proposed for retention, was to concede that they should be removed due to the impact on them of the proposed works.
The preceding, and Mr Kingdom's concessions in oral evidence, lend weight to the validity of the concerns expressed by Mr Duncombe that 15 trees (including 184, 191, 193-195, 328, 149, 150, 108 and others) nominated by the Applicant for retention would be unable to ultimately be retained due to unsustainable levels of encroachment into the TPZ as a result of cut or fill. I note these trees are also captured by the proposed condition extracted at [209], making even the retention of 172 trees an unlikely outcome.
I accept that the development application does involve positive revegetation works detailed in the VMP as well as replanting and landscape works as detailed in the landscape plans at Exhibit E. Further, the amendments made to the development to allow for the additional retention of the existing trees fronting Coastal View Drive is a positive change to the proposed development. However, much of what is proposed in the landscape plan is of small scale with limited canopy height trees and only a small number of trees of species that are to be removed by the development are incorporated in the landscaping proposed. Where eucalypts are proposed to be replanted they occur in private land and on the perimeter of the development site.
The assessment of the merit of the application involves balancing the impacts that will arise from the implementation of the development both positive impacts and detrimental as detailed in in the development plans, the VMP, the landscape plan etc. In doing so I accept the evidence of Mr Leathley that some benefits that accrue from the central management of the MHE as a type of development, I have taken these benefits into account. However, on balance I find that the extent of tree removal proposed is a likely impact of the development that warrants refusal of the development application: s 4.15(1) (b) of the EPA Act.

[30]

Character

Following a consideration of the evidence and the submissions of the parties, it is my view that the proposed development places a density of development and facilities on the site that is of a form and character that is not compatible with the existing character of the locality. Additionally, I find that the development will have an adverse visual impact. As a result, I find that the proposed development is unsuitable given its location, design and relationship with the character surrounding area. My reasoning is contained in the following.
I accept Mr Nash's description of the existing character at paragraph [260] as being a fair account of the existing character of Tallwoods. I have also given consideration to the resident's submissions and my own observations of the character of the locality in determining the compatibility of the proposed development.
I accept the conclusion of Mr Nash that the development will have a detrimental visual impact and that the detrimental visual impact arises from the intended removal of existing vegetation and through the density and characteristics of the proposed development (small allotment sizes, extent of site coverage, minimal setbacks, lack of pockets of vegetation, lack of separation within the 'residential' component of the development).
However, I accept the evidence of Dr Pollard that visual density is narrower means of determining that character than the factors he nominates, namely built form, street presentation and address, alterations to the landform, landscape and building function. I accept the submission of Mr Robertson that the factors nominated by Dr Pollard appropriately align with the planning principle in Project Venture.
I accept the evidence of Mr Nash that the proposed development, characterised by small allotment sizes, extensive site coverage and minimal setback is in contrast to the existing character of the residential development at Tallwoods. I am not persuaded by the examples provided by Dr Pollard at [251] as they are outside a reasonable visual catchment due to their distance from the subject site. I note that Project Venture at [26] gives weight in the assessment of compatibility to the relationship of the proposed built form to surrounding space. Applying Project Venture, it is my view that this relationship of built form to space is markedly different in the proposed development than the character of the existing development in proximity to the site. However, of itself, such a difference in built form may not be so stark as to jarring or unsympathetic. To determine the materiality of this impact I have adopted the framework of factors identified by Dr Pollard as determination of character at [269], namely: built form, street address, alterations to landform, landscape and building function.
Note I consider the second factor (street address) identified by Dr Pollard as part of the discussion of visual impact below.
In considering the third factor Dr Pollard identifies (alteration to land form) I accept his assertion at [273] that given the rezoning of the subject site, some change of character from the current rural setting is envisaged by the planning instruments. In undertaking the assessment of his element 'alterations to the land form', I have given weight to the existing consents that have been granted in proximity to the subject site, and their role as potential influence on the future character of the locality (refer paragraph [15]) for an indication as to the location and form of the developments.
The immediately adjacent site has a consent, DA/567/2011, that differs in my view in two key respects to the form of development proposed by the current development application. Firstly, the layout of the street network follows the site contours, and secondly the development provides for a central landscaped corridor which serves to reduce the length of the proposed road network and provides a visual break in the urban development. A similar approach is taken in the approval to the north of the site, DA 803/2015. In contrast the proposed development relies on significant site benching to create levels appropriate to the MHE and concentrates the retention or planting of vegetation to the perimeter of the site.
In considering the fourth factor (landscape) Dr Pollard identifies, as detailed in the preceding, over 50% of the existing vegetation is proposed to be removed, likely more given the uncertainty of tree retention detailed in the preceding. Further, the form of the landscaping proposed is unlikely to create a meaningful scale or density of planting that will offset this impact. Many of the existing trees on the site reach a height of some 25 - 30+m, giving them scale and significance in the setting of the locality. The tallest trees proposed in the landscape plan are street trees which may reach a mature height of some 20m, no significant canopy trees are proposed in the landscape plan to be planted in groups or swathes to provide a visual break to the MHE layout.
In weighing these impacts, I have given consideration to the positive aspects of the development including the revegetation and rehabilitation works proposed by the VMP. Further, I acknowledge that some change of character from the current rural setting is envisaged by the planning instruments, however a specific characteristic of the Tallwoods locality is the retention and emphasis placed on remnant vegetation and landscaping. Canopy trees assist in defining this character and in my view the proposed development in unsympathetic to this characteristic in its current form.
In considering Dr Pollard's final characteristic (building fucntion), in my view, it is the specifics of the current development application that render it unacceptable, not the proposed use of the site for the purposes of a manufactured home estate.
Considering these factors in totality and the planning principle in Project Venture I find that the proposed development is not compatible with the character of the locality and in combination with the detrimental impacts arising from the proposed development this impact warrants the refusal of the application.

[31]

Visual impact

The subject site is in a natural landform depression. Given the elevated nature of the surrounding streets and houses, from my observations of the site and the evidence, I am persuaded the proposed development will be a visible element from public and private viewpoints. Visibility of itself is not an impact, but given theincongruity of the density and tightly packed nature of the site planning proposed on the subject site, the extent of tree removal, the limited landscape treatment of the site and within the development, and the finding of incompatibility with character I am satisfied the proposed development will have a detrimental visual impact.
I am not persuaded by Mr Leathley's description of the proposed development as being characterised by '… smaller building's interspersed with trees, greenspace and road network', refer paragraph [254]. In my assessment the proposed development cannot be categorised as interspersed with landscaping. In my view this is not the approach that has been adopted in the layout of the site, the civil works plans or the landscape plan. Further, on the evidence, there is uncertainty of tree retention, the impact of cut and fill on the number of trees to be retained and the levels of the pocket parks proposed. These conclusions affect the weight I have given to Mr Leathley's assessment of the visual impact of the development as summarised at [255].
In reaching my conclusion of detrimental visual impact I have given consideration to the set of typical dwelling types provided and the photomontages prepared by the Applicant. I accept the assessment of Mr Leathley of the potential locations from which a view of the site may be available (see paragraph [252]), however on the basis of the findings I have made regarding tree retention and compatibility I do not accept his conclusion that the impact is acceptable. I accept and prefer the evidence of Mr Nash as summarised at [259]-[263].
Finally, in considering the evidence and submissions on character and the reasonableness of the visual impact I have given weight to the submissions of the public as to the value of the distinctive character of Tallwoods and its natural characteristics. I am satisfied that many of these submissions are reasonable and lend support to the proceeding conclusion that the form and density of development proposed by the development application, its visual impacts and incompatibility with character are unacceptable. (s 4.15(c) of the EPA Act).
As noted by McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117] in determining whether a subject site is suitable for a particular purpose, or whether the impacts arising from a development are acceptable, weight must be given to the land's zoning in determining what appropriate development is for the site. Whilst the use of the site as a manufactured home estate is permissible as an innominate use, the appropriateness of such a use to a specific site or context will depend on site design, planning and the constraints of the location. In this particular case I am not satisfied that the design of the proposed development will result in acceptable environmental impacts.
I find that after a careful evaluation of the evidence and the submissions that given the likely detrimental impacts, the application is not acceptable on its merits: s 4.15(b) of the EPA Act.

Ms Irish's arguments in relation to the application of SEPP 36 can be summarised as follows: 1. That SEPP 36 does not apply to the RE1-Public Recreation land by effect of Schedule 2, which at (6) excludes (emphasis added): Land which under any environmental planning instrument is within an area or zone identified in that instrument by the description - • open space, other than open space (private recreation) • environmental protection • scenic protection • rural (where the land is not adjacent to or adjoining land zoned for urban use). 1. That applying Warringah Shire Council v Punnett and Associates Pty Ltd (2001) 122 LGERA 1; [2001] NSWCA 480 at [26], the words 'within an area or zone' in the chapeau should be interpreted more broadly than just the title of the relevant zone. Secondly, in the first dot point exclusion 'open space, other than open space (private recreation)' the words 'other than' have the effect of meaning 'unless'. Therefore the exclusion has the clear meaning: 'land which is within an area or zone identified under any environmental planning instrument by the description "open space, other than (private recreation)" will not be excluded, and development for the purposes of a manufactured home estate may be carried out on such land under SEPP 36 if it is also land on which development for the purposes of a caravan park can be carried out.' (Respondents written submissions 10 December 2020) As it does not have a descriptor of private recreation, applying a purposive construction, the RE1- Public Recreation zoned land is caught by the exclusion in Schedule 2 (6) of SEPP 36. 1. That when lodged the development application was not made pursuant to SEPP 36. 2. SEPP 36 does not override any prohibition in LEP 2010 in circumstances where: 1. SEPP 36 expressly excludes its operation by effect of Schedule 2 (6). 2. If applicability of the instrument to the proposed development is found elsewhere in SEPP 36, then cl 4(1) provides that SEPP 36 prevails, only to the extent of the inconsistency between the instruments.

Joint Venture Pty Ltd v Mid-Coast Council

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (34 paragraphs)

Parties

Cases Cited (36)