Biodiversity certification
72The Council accepts that for biodiversity certified land, no SIS is required to be prepared or submitted with a development application for it to be properly made or properly determined, on the basis that cl 26(1) of Sch 7 and s261(2) of the TSC Act render inoperable s78A(8)(b) of the Act. The Council submits that while s261(3) means that a consent authority is not required to consider likely impacts of the development on biodiversity values, nothing in s261(3), or, by extension cl 26(1) of Sch 7, should be construed as preventing a consent authority from considering the likely impacts of development on biodiversity values. Similarly, nothing in cl26(1) prevents a consent authority from considering whether the public interest would be served or hindered if a development was likely to have significant impacts on the composition, structure and function of ecosystems under s79C(1)(e) of the Act, or taking into account the provisions of its local planning instruments that concern the protection of native vegetation under s79C(1)(a) of the Act.
73The Council submits that in assessing this application, those impacts should be taken into account under s79C(1)(a), (b), (c), (d) and (e), and that Kerford has not provided sufficient information regarding the on-going management of the proposed subdivision to control or manage environmental impacts, in particular on the Speckled Warbler. The Council submits that based on the DEC letters, the local population of Speckled Warbler is at risk of extinction, and that is an impact on the environment. The Council accepts that biodiversity certification means that a strategic view has been taken across the local government area that there are some impacts which will be offset, and submits that while that offset should be taken into account, that does not mean that no analysis of impact is needed. Clause 5.9 of the 2010 LEP applies as part of the assessment process.
74Kerford submits that the legal effect of biodiversity certification is that the proposed development is taken to be development that is not likely to significantly affect any threatened species or its habitat. Other things being equal, development consent would not be refused to an application as a consequence of an environmental impact that is less than significant, and an impact that is less than significant is, by definition, not an impact that is unacceptable. The kind of environmental assessment advocated by the Council is the very thing that biodiversity certification was designed to avoid.
Consideration
75The order made by the Minister on 15 February 2011 conferring biodiversity certification on the 2010 LEP was made pursuant to cl25(2) of Sch 7 to the TSC Act. Clause 25 is one of the savings and transitional provisions inserted in Sch 7 as Part 8 (Provisions consequent on changed arrangements for biodiversity certification) as a consequence of the amendment of the TSC Act by the Threatened Species Conservation Amendment (Biodiversity Certification) Act 2010 which came into force on 2 July 2010. That Act removed Part 7 Div 5 Biodiversity Certification of Environmental Planning Instruments, which enabled the Minister to confer biodiversity certification on an EPI, and inserted a new Part 7AA Biodiversity Certification, which enables biodiversity certification of land.
76Clause 25 of Sch 7 provides:
25 Continuation of power to confer biodiversity certification on an EPI in limited cases
(1) Sections 126G, 126H and 126N, as in force under the former biodiversity certifications arrangements, continue to apply in respect of an existing biodiversity certification proposal.
(2) Accordingly, the Minister may confer biodiversity certification on an EPI (including an established EPI) which is the subject of an existing biodiversity certification proposal under the former biodiversity certification arrangements as if those arrangements had not been repealed.
(3) The order conferring biodiversity certification is to specify the relevant measures to be taken and any conditions of the certification.
(4) An existing biodiversity certification proposal is a proposal to confer biodiversity certification on an EPI of which notice was given, or which was subject to public exhibition, under section 126G before the repeal of the former biodiversity certification arrangements.
(5) This clause does not prevent the Minister from conferring biodiversity certification on land to which an existing biodiversity certification proposal relates under the new biodiversity certification arrangements.
77The reference to the "former biodiversity certification arrangements" is to the provisions of Part 7 Div 5 as in force before their repeal on 2 July 2010 (cl23(1)).
78Notice of the proposed biodiversity certification for the 2010 LEP was given by the publication of the report on Proposed Biodiversity Certification for the Albury Local Environmental Plan 2009 under the former s126G(4) of the TSC Act from 9 November 2009, together with a draft of the 2010 LEP, with submissions closing on 29 January 2010 (exhibit 1, tab 56). Accordingly, as at 2 July 2010 the proposal was an "existing biodiversity certification proposal" as defined in cl 25(3), and the power exercised by the Minister to confer biodiversity certification on the 2010 LEP on 15 February 2011 was that conferred by the former s126G(1), continued by cl 25(2) of Sch 7.
79Clause 26 of Sch 7 to the TSC Act provides:
26 Effect of biodiversity certification
(1) Any development for which development consent is required under the provisions of a biodiversity certified EPI is, for the purposes of Part 4 of the Environmental Planning and Assessment Act 1979, taken to be development that is not likely to significantly affect any threatened species, population or ecological community, or its habitat.
(2) An activity to which Part 5 of the Environmental Planning and Assessment Act 1979 applies that a biodiversity certified EPI provides can be carried out without the need for development consent is, for the purposes of that Part, taken to be an activity that is not likely to significantly affect any threatened species, population or ecological community, or its habitat.
(3) This clause applies subject to the conditions of the biodiversity certification.
80Clause 26 is in the same terms as the repealed s126I Effect of Biodiversity Certification of the former Part 7 Div 5.
81In contrast, s126I of Part 7AA now provides in relation to development under Part 4 of the Act:
(2) Development under Part 4 of the Planning Act
Development on biodiversity certified land is taken, for the purposes of Part 4 of the Planning Act, to be development that is not likely to significantly affect any threatened species, population or ecological community under this Act, or its habitat.
(3) A consent authority, when determining a development application in relation to development on biodiversity certified land under Part 4 of the Planning Act, is not required to take into consideration the likely impact of the development on biodiversity values (despite any provision of the Planning Act or any regulation or instrument made under that Act).
82The significant difference between the current provisions and those applicable to the biodiversity certification of the 2010 LEP, is that there was no equivalent to s126I(3) in the former s126I, and there is no equivalent in cl 26.
83In Kerford Developments Pty Ltd v Albury Council [2011] NSWLEC154 Craig J dismissed an application by Kerford to have paragraph 3 of the contentions in the Council's Statement of Facts and Contentions filed on 11 August 2011 struck out. The terms of paragraph 3 are set out at [9] of his Honour's judgment. During the course of that hearing paragraph 3 was amended to read:
The Development Application should be refused because:
(a) The proposed development will not preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation contrary to cl 5.9(1) of the ALEP 2010.
Particulars
(1) The proposed development includes clearing along the Eastern boundary for the purpose of creating asset protection zones and along the Northern boundary for the purpose of constructing an access road;
(2) Trees over 4.5 metres in height and 3m in spread will therefore be removed from the site;
(3) Trees over 4.5 metres in height and 3m in spread provide ground cover that can be used by the speckled warbler;
(4) Removal of the trees will result in the degradation of vegetation that is the preferred habitat of the speckled warbler, a vulnerable species under the Threatened Species Conservation Act 1995;
(5) Inappropriate development of the site will place the population of the speckled warbler at risk of extinction;
(6) It is contrary to biodiversity values to incur a loss of vegetation from the site that has high conservation significance due to:
A. the known presence of a threatened species; and
B. provides linkages to adjoining conservation areas because of the size and strategic position of the site; and
(7) Such trees likely to be removed constitute a semi-isolated strand of vegetation that contributes to the amenity of, and provides a scenic backdrop to, the local area;
(b) the proposed development will not conserve and enhance the existing aesthetic character and public amenity of Albury through the removal of native vegetation contrary to Objective (1) of clause 5.2 of the ADCP2010;
(c) The proposed development will not assist in the retention and on-going protection of native vegetation that may be habitat for threatened species, namely, the speckled warbler;
(d) the proposed development is contrary to the public interest in the orderly development of land because:
i. it is contrary to the objectives of the ALEP2010 and ADCP2010; and
ii. the reserve for the on-going protection of the speckled warbler that was to be provided on the site under the Consent will not be provided under the proposed development."
84Craig J summarised the effect of paragraph 3 as being to raise the issue directed, at least in part, to the impact that the grant of development consent would have on the Speckled Warbler. Kerford had contended that cl26(1) precludes consideration by the Council or by the Court on appeal of a contention that consent should be refused for any reason associated with the impact of the development on the Speckled Warbler. Craig J held:
15 At least as a submission directed to the exclusion of evidence or argument, I cannot accept Kerford's submission. It seems to me that cl 26 is carefully framed so as to limit its application to such matters as arise for consideration under Pt 4 of the EPA Act by reference to the phrase "likely to significantly affect any threatened species ... or its habitat". As the Council submits, the provisions of the clause would appear to be directed to what it described as "mechanistic" matters rather than an absolute exclusion of consideration.
16 The provisions of Pt 4 of the EPA Act in which the relevant phrase is used are ss 78A(8) and 79B(3). I accept that cl 26(1) of Sch 7 to the Threatened Species Conservation Act would operate so as to remove any obligation on the part of Kerford to prepare a species impact statement (s 78A) or to seek concurrence of the Director-General under s 79B. However, the matters to be considered when determining a development application, as they are identified in s 79C(1) of the EPA Act, are expressed in more general terms. Relevantly, consideration of "the likely impacts of that development, including environmental impacts on both the natural and built environments" (s 79C(1)(b)) does not contain the verbal formula found in cl 26(1). That clause would not, in terms, preclude consideration of an impact associated with the use of land by the Speckled Warbler by reference to s 79C(1)(b).
17 Moreover, a further process of statutory interpretation aids the tentative conclusion I have expressed. The provisions of Pt 8 of Sch 7 to the Threatened Species Conservation Act, in their present form, were inserted by the Threatened Species Conservation Amendment (Biodiversity Certification) Act 2010. Part 8 of Sch 7 is included as containing savings provisions. The 2010 Act also inserted a new Pt 7AA into the Threatened Species Conservation Act providing an amended regime for biodiversity certification. Section 126I is one of the sections addressing biodiversity certification under the new regime. Subsection (2) of that section contains provisions which are essentially the same as those found in cl 26(1) of Sch 7. However, subsection (3) of s 126I provides as follows:
"(3) A consent authority, when determining a development application in relation to development on biodiversity certified land under Part 4 of the Planning Act, is not required to take into consideration the likely impact of the development on biodiversity values (despite any provision of the Planning Act or any regulation or instrument made under that Act)."
Reference to "biodiversity values" in that section includes reference to threatened species (s 4A).
18 An equivalent provision to s 126I(3) was not inserted into Pt 8 of Sch 7 when that Schedule was inserted by the amending legislation. If cl 26 had the effect for which Kerford contends, s 126I(3) would appear to be redundant, at least as it pertains to consideration of likely impacts upon threatened species pursuant to s 79C(1) of the EPA Act. Powerful reasons would be required to infer such redundancy before that conclusion was reached. None have been advanced to persuade me of that position.
19 Nothing that I have said is intended to preclude the argument advanced by Kerford at the final hearing nor to suggest that substantial reliance cannot be placed upon the detail in the Certification Report to address the issue raised. However, by reason of the statutory provisions that I have discussed, I am not prepared to preclude consideration of the issue raised by the Council in its amended paragraph 3 of the contentions in the Statement of Facts and Contentions. The issues agitated before me are sufficiently open to rational argument so as to allow the issue to be fully agitated at the hearing when all the facts are before the Court.
85Kerford's submissions in the hearing of the appeal accepted that cl26 of Sch 7 does not preclude any consideration of impacts on the Speckled Warbler, however it maintains that the result of biodiversity certification is that any such impacts must be taken to be less than significant, relying on the Biodiversity Certification Report prepared by the Department of Environment Climate Change and Water (the BC Report) and the report on Proposed Biodiversity Certification for the Albury Local Environmental Plan 2009 (the PBC Report) prepared as part of the process leading to biodiversity certification.
86The PBC Report provides the context for the proposal for biodiversity certification at part 1.2, referring to the "unique history of environmental planning" in the Albury-Wodonga region. That history includes the involvement of the Albury-Wodonga Development Corporation in land acquisition, management and disposal from 1974, which included significant planting of trees and shrubs. The PBC Report was exhibited concurrently with the draft LEP, and, as stated in the BC Report (at p vii), provided an assessment of the impact of the draft LEP "on the biodiversity values within the Albury local government area". The BC Report was a report to the Minister, which supplemented the assessment of the proposed biodiversity certification documents in the PBC Report "by revising the PBC Report following community consultation of the draft ALEP, public submissions and actions undertaken by ACC", and was to be read together with the PBC Report (exhibit 1, tab 57, pvii).
87The BC Report states at 1.2 that in order to confer biodiversity certification under Part 7 Div 5, the Minister had to be satisfied that the 2010 LEP, in addition to any other relevant measures to be taken, "will lead to the overall improvement or maintenance of biodiversity values". The Executive Summary to the PBC Report states:
Biodiversity certification of the proposed bio-certified area of the 2010 LEP by the Minister for Climate Change and the Environment would mean that any development in the proposed bio-certified area (for which development consent is required under the
LEP), is for the purposes of Part 4 of the Environmental Planning and Assessment Act 1979 taken to be development that is not likely to significantly affect any threatened species, population, or ecological community or its habitat.
That is, biodiversity certification replaces site-by-site, development-by-development assessment of threatened species under the TSC Act with a landscape-wide strategic assessment. In general, it removes the need to undertake detailed threatened species impact assessments at the development application stage for the bio-certified area of the 2010 LEP, reducing government regulation whilst improving or maintaining biodiversity.
88Kerford submits that biodiversity certification does this by identifying features of high conservation value for inclusion in environmental zones (E2 Environmental Conservation and E3 Environmental Management): for example the Kerr Road Habitat Block immediately to the west of the site has been included in the E3 zone. The site is identified as being in a "Developable Area" zone where "losses of vegetation and habitat may occur through the provisions of the 2010 LEP" (p19). The PBC Report notes (at 3.1.2) that DECCW considers that "there are no features of high biodiversity value within the (Developable Area) zones, with the exception of 191ha contained in eight areas". At 4.2.1 there are eight areas (described as 13 in the applicant's written submissions) in the Developable Area zones that contain remnant vegetation that is considered to be "viable in the long term" and excluded from biodiversity certification.
89The consequences of biodiversity certification are summarised at part 5 of the PBC Report as follows:
· greater conservation and developer certainty as to what can and cannot be achieved on particular sites
· greater trust in achieving conservation goals as an 'improve or maintain' outcome is non-negotiable
· less council staff time dedicated to assessing specific development applications and negotiating with developers as to what can and cannot be done
· no financial cost to developers in producing individual assessments, which generally would have exceeded the cost now required to meet offset provisions
· increased financial resources to manage biodiversity through funds obtained through offset mechanisms.
90Kerford submits that both the PBC Report and the BC Report recognise and accept that there will be a loss of some biodiversity values through the carrying out of development in accordance with the provisions of the 2010 LEP, but that this will be offset by the inclusion of land identified as having high conservation values in the environmental zones. The effect of biodiversity certification is that a site specific assessment of biodiversity impacts is not required. The development of the land is in accordance with its inclusion in the Residential Zone and any biodiversity impacts have already been taken into account and offset by the inclusion of other land in the E2 and E3 zones. Any effect on the Speckled Warbler or its habitat is taken not to be significant, and an impact that is not significant is not one that ought result in the refusal of the development application. The biodiversity certification anticipates that there will be clearing of land, and the Court should be satisfied that clearing does not mean that there is a significant impact on the Speckled Warbler. In considering the public interest under s79C(1)(e), the PBC Report at 4.2.1 states that patches of vegetation in Developable Areas less than 4ha in area are considered not to be viable, and the BC report assumes (at 10) that native vegetation in zones proposed for development will be cleared.
91In essence, Kerford's argument based on the PBC and BC Reports is that the zoning of the site, and in particular the Reserve lot, as Residential rather than E2 or E3, anticipates clearing of the land, and that any consequent loss of biodiversity values, including the loss of Speckled Warbler habitat, would be compensated for by retention of other land in the environmental zones. While I accept that in general terms that may reflect the approach adopted in the biodiversity certification process, I am not persuaded that the consequence is that any impact on the Speckled Warbler is to be taken as not significant, or in effect, disregarded for the purposes of assessing the Subdivision application in accordance with s79C of the Act.
92As noted above, one of the purposes of the PBC Report was to assess, for the purposes of then s126G of the TSC Act, whether the then draft LEP would lead to an overall improvement or maintenance of biodiversity values including threatened species and communities. The PBC Report includes description of protection mechanisms (part 3) and an assessment of the biodiversity certification proposal (part 4). Part 4 incorporates discussion of the studies previously undertaken in the local government area, including the TTSCS commissioned by the Albury Wodonga Development Corporation, and which had been incorporated into the ALUS. At 4.1.3 the PBC Report notes that records of all species listed under the TSC Act had been mapped and compared against the zones for Natural Areas (being the E2 and E3 zones); and 14 percent of the locations of threatened species records within the local government area were within Development Zones. At 3.1.2 the PBC Report notes that while DECCW considers that there are no features of high biodiversity values in the Developable Area Zones (including the Residential zones) with the exception of the 191ha in the eight areas, "the protection of other features with lower biodiversity value would be appropriately protected through the operation of Clause 5.9 Preservation of trees or vegetation " of the then draft LEP. Part 3.2.1 addresses cl 5.9 in further detail.
93The site is not one of the eight areas in the Developable Areas excluded from biodiversity certification. Those areas that were excluded were, on the oral evidence of Mr Keys, areas larger than 4ha which, according to the PBC Report at 4.2.1, were considered to be viable in the long term. The fact that the site was not one of the excluded areas is not determinative, however. At 2.5.2 the BC Report notes that while DECCW assumes the native vegetation in areas proposed for development will be lost as those zones are developed, "the operation of Clause 5.9 of the ALEP may mitigate those losses".
94In my view, the PBC and BC Reports do not support a conclusion that biodiversity certification of the 2010 LEP means either that no consideration of likely impacts is required, or that it is to be assumed that any impact is so insignificant as to not be determinative. Rather, the recognition of the operation of cl 5.9 of the 2010 LEP to direct attention to the impact on biodiversity values of vegetation clearing in the Development zones means that consideration of the likely impacts of the proposed development and the suitability of the site under s79C is not precluded by the fact of biodiversity certification.
Conclusion
95Applying Kerford Developments Pty Ltd v Albury Council [2011] NSWLEC154 ,the approach to be adopted to considering the impacts of the proposed development on the Speckled Warbler in the context of biodiversity certification of the 2010 LEP is first, that the use of the language of s78A(8) and s79B(3) in cl26(1) of "likely to significantly affect any threatened species ... or its habitat", is directed to "mechanistic" matters rather than an absolute exclusion of consideration, and as a consequence there is no obligation to prepare a SIS in relation to the proposed subdivision: Kerford Developments Pty Ltd v Albury Council [2011] NSWLEC154 at [16]. Secondly, the omission in cl26 of a provision corresponding to the present s126I(3) is an indication of legislative intent not to exclude consideration of the likely impacts of the proposed development under s79C(1): Kerford Developments Pty Ltd v Albury Council [2011] NSWLEC154 at [18]. The textual analysis undertaken by Craig J is supported by consideration of the legislative context in which the 2010 amendments were made, namely the change from biodiversity certification of environmental planning instruments to the necessarily more focussed biodiversity certification of land. The BC Report and PBC Report do not counter the indication of legislative intent identified by Craig J, or support the proposition that no assessment of impacts in accordance with s79C(1) in relation to the matters that were the subject of the assessment for biodiversity certification is required, or that it should be assumed that any impact is insignificant. As noted above, the biodiversity certification of the 2010 LEP relied on Sch 7 of the TSC Act, and not the present Part 7AA of the TSC Act, and I do not agree with the Council that the present s126I(3), which, it submits, permits but does not require consideration of the likely impact of the development on biodiversity values, has any application. There are no relevant conditions of the biodiversity certification that would be required under cl 26(3) of Sch 7 to be taken into account. In my view, s79C(1) applies to require consideration of likely impacts on the environment, which include impacts on the Speckled Warbler, in accordance with s79C(1)(b), and the suitability of the site for the proposed development, in accordance with s79C(1)(c).
Assessment of the proposed development
96Kerford relies on the fact that none of the site or the Kerr Road or Thurgoona Road road reserves was identified in the ALUS as "Linear Conservation, Open Space Connections", which were translated to the E2 or E3 zones in the 2010 LEP, and on the zoning of the site as R1 General Residential rather than E2 Environmental Management.
97Mr Keys was questioned on the ALUS and the zoning of the site under the 2010 LEP. Mr Keys agreed that there is no specific provision in the ALUS for the site to provide a linkage between the land on the western side of Kerr Road and the land owned by the ADF to the east. In his opinion the ALUS was meant to be a strategic document that provided grounding and direction for future planning of the city. Consideration of environmental constraints and where it was necessary to provide conservation linkages was based on the existing studies and information that was available at the time, which did not include the potential presence of Speckled Warbler on the site. That information was not part of the information fed into the ALUS; the site was in an area that was outside the area where specific strategies and in depth detailed investigation had been undertaken under the TTSCS. Mr Keys' evidence was that the land was already zoned Residential, and during consideration of the zoning of the site as R1 in the 2010 LEP the 2008 Consent had been activated, and then in discussions with OEH and council officers they chose to rely on the provisions of that consent that had been activated and did not choose to rezone the site.
98Mr Keys has been the Council's Director of Planning and Environment since April 2006 and, based on his curriculum vitae, his responsibilities have included the adoption of the 2010 LEP. I accept his evidence concerning the decision to zone the site R1 under the 2010 LEP, which is consistent with a letter dated 9 May 2011 from the A/Manager Landscape and Aboriginal Heritage Protection of OEH opposing the Subdivision Application (exhibit 1, tab 34). That letter includes a reference to a submission made by the then DECC on 12 May 2008 that the Reserve lot be zoned as E2 Environmental Protection. The letter notes that the Council's response to that submission was that this would require "back zoning" which the Council was not prepared to impose, and that further discussions between OEH and the Council concluded that as the original consent conditions protected the reserve the vegetation would remain protected despite being in a R1 zone. While that letter was written after the event, it was a response to a request dated 2 May 2011 from the Council seeking comments on the Subdivision application, and there is nothing to suggest that it is not an accurate reflection of OEH's records of the consideration of the original application and OEH's reasons for objecting to the Subdivision application.
99The continuation of the residential zoning from the former LEP to the 2010 LEP should in my view be understood in the context of the existing 2008 Consent. At the time the 2010 LEP came into effect the Reserve lot (while by then in stage 2 of the project) was required as part of the development consent, and Kerford had obtained a construction certificate to enable work to proceed in accordance with the consent. There is nothing in the legislation, or in the PBC or BC Reports, to indicate that biodiversity certification was intended to override the provisions of any existing development consents. While planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted, that may be subject to the need to ensure acceptable environmental impacts: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399. In the circumstances of this case, at the time the 2010 LEP came into effect the site was already subject to a development consent which had made provision to respond to identified environmental impacts. Accordingly, I do not regard it as determinative that the site, or more particularly the Reserve lot, is zoned R1 under the 2010 LEP.
100Clause 2.3(2) of the 2010 LEP requires consideration of the objectives of the R1 zone. Mr Laycock and Mr Keys agreed that the Subdivision application is consistent with the objectives of the R1 zone under the 2010 LEP, and I accept their evidence. The planners also agreed that the Subdivision application is consistent with the objectives of the 2010 LEP cl 1.2(2)(a) and (b), and generally consistent with (c), although they differed on whether the Subdivision application provides for a high level of physical amenity. The planners disagreed on the level of weight to be given to the 2010 LEP aims in cl 1.2(2)(c) and (d) in relation to community expectation. In particular, Mr Laycock was of the opinion in relation to (d) that the siting and design of the proposed access road along the northern boundary of the site is consistent with community expectations that large remnant trees located in a road reserve would be protected if there are available options to ensure that they are protected. Mr Keys was of the opinion that as the biodiversity certification of the 2010 LEP came into effect after the 2008 Consent there is a reasonable community expectation that the commitments provided for in that consent would not be altered.
101Clause 5.9 of the 2010 LEP (by virtue of cl 5.2 of the DCP) applies to trees over 4.5m in height and 3m in spread. Mr Laycock and Mr Keys agreed that the minimum number of trees that would be required to be removed to comply with the terms of the APZ requirements would not be determined until development proposals for each lot are known, however from their observations of residentially zoned lots with native vegetation the same or similar to that on the site, when those lots are developed the majority of existing vegetation has been removed. The planners agreed that to establish an APZ to IPA requirements on the eastern boundary of the site would necessitate a 10m wide area and the clearing of two trees over 4.5m in height and 3m in spread, and that the clearing of those trees would be minor and inconsequential and would not detrimentally affect the amenity of the area. They agreed that to construct the proposed access road along the northern boundary of the site would necessitate the removal of approximately 40 trees over 4.5m in height and 3m in spread. The planners disagreed on whether the removal of those trees would be such that the proposed development would not preserve the amenity of the area, including biodiversity values, contrary to cl 5.9 of the 2010 LEP.
102The planners were in agreement that the word "biodiversity" in cl 5.9 means the possible presence of non-threatened native species and non-native species using the vegetation as habitat. Mr Laycock was of the opinion that the proposed removal of 40 trees would not detrimentally affect the amenity of the area as the site is not visually prominent when viewed from surrounding privately owned land or from the public domain in the area being the road reserves of Kerr Road and Thurgoona Drive, and there is a stand of visually aesthetic remnant trees which act as a visual backdrop to the site when viewed from the south and act as a visual buffer when viewed from the north. Surrounding land may also be the preferred habitat of the Speckled Warbler, for example the land to the east and south of the site. The proposed access road was designed and sited specifically to avoid the removal of and avoid adverse impact on the large remnant trees within the road reserve on Thurgoona Drive, and there is scope for the road reserve area to be embellished with shrubs, bushes and ground covers. In Mr Keys' opinion the scope of influence of the amenity of the area is more expansive than that identified by Mr Laycock. In his opinion the retention of large remnant trees in the road reserve is a benefit of the development, however the retention of smaller and more congested vegetation on the site would reinforce the "bushland" setting and appearance. Adjoining sites are an important element in providing linkages to areas of habitat that could be utilised by the Speckled Warbler, and negotiation concerning a development application for the adjoining land to the east would provide a 20m wide reserve along Thurgoona Drive which would provide a linkage from the site to the ADF land to the east.
103I accept the evidence of the planners as to the extent of clearing of trees that would be required for the APZ on the eastern boundary and for the proposed access road along the northern boundary. In applying cl 5.9, there is no definition in the 2010 LEP of "biodiversity values". Clause 5.9 is a compulsory provision in the Standard Instrument, and there is no definition in that instrument. The term "biodiversity" is defined in the 2010 LEP to mean "biological diversity" which is itself defined to have the same meaning as in the TSC Act, which is:
biological diversity means the diversity of life and is made up of the following 3 components:
(a) genetic diversity-the variety of genes (or units of heredity) in any population,
(b) species diversity-the variety of species,
(c) ecosystem diversity-the variety of communities or ecosystems.
104Section 4A of the TSCAct (inserted in 2006) defines "biodiversity values":
(1) For the purposes of this Act, biodiversity values includes the composition, structure and function of ecosystems, and includes (but is not limited to) threatened species, populations and ecological communities, and their habitats.
105Section 126G of the TSC Act as in force at the time of exhibition of the PBC Report, and continued by cl 25 of Sch 7 to the TSC Act, provided:
(1) The Minister may by order published in the Gazette confer biodiversity certification on an EPI if satisfied that the EPI, in addition to any other relevant measures to be taken, will lead to the overall improvement or maintenance of biodiversity values. Biodiversity values include threatened species, populations and ecological communities, and their habitats.
106The PBC and BC Reports confirm that cl 5.9 was a factor in the assessment of the proposal for biodiversity certification of the 2010 LEP. Given the close focus on the provisions of the 2010 LEP in undertaking the assessment as to whether that instrument would lead to an overall improvement or maintenance of biodiversity values, I am satisfied that the term "biodiversity values" in cl 5.9 should be read to include threatened species, as well as other species using the area as habitat. That would be consistent with the broad definition of "biodiversity", and consistent with the former s126G(1) of the TSC Act under which the 2010 LEP was biodiversity certified. It was clear from the oral evidence that the planners had adopted a more limited approach to cl 5.9, based on their assessment of the consequences of biodiversity certification. Both planners conceded that their expertise did not extend to assessment of impacts on threatened species and that they would defer to opinions expressed by others with appropriate expertise.
107The evidence as to the studies and reports undertaken concerning the presence of threatened species, including the Speckled Warbler, and assessing the likely impact on them of the proposed development, is summarised at [39]-[45] above. In particular, the reports of Ms Datson provided in the assessment of the development application leading to the 2008 Consent identified the site as habitat of the Speckled Warbler, and that loss of habitat was undesirable. Ms Datson recommended the retention of a 20m wide fenced corridor along the Thurgoona Road road reserve, which would be in addition to that required for the road reserve, to allow for a viable wildlife corridor between patches of habitat. The oral evidence was that neither Kerford nor the Council has undertaken any further assessment of the presence or otherwise of the Speckled Warbler. There is no indication that there is any other information relating to the presence of Speckled Warbler on the site that might indicate that the situation has changed since the earlier assessments. While there has been clearing and construction on some of the lots approved in the 2008 Consent, on the view the Reserve lot appeared undisturbed. I am satisfied on the evidence available to me that the clearing of trees along the eastern boundary and for the proposed access road would adversely impact on the habitat of the Speckled Warbler and thus on the Speckled Warbler itself.
108Based on the view, I agree with Mr Keys that while the larger remnant trees could be retained along Thurgoona Drive, the retention of a significant number of smaller trees in the area of the proposed road access would reinforce the bushland setting and appearance of the site.
109I am satisfied that removal of the trees as agreed between the planners would not be consistent with the objectives of the Tree Preservation order specified in part 5.2 of the DCP, being to conserve and enhance the existing aesthetic character of Albury, and to assist in the retention and ongoing protection of native vegetation that may be habitat for threatened species.
110In those circumstances, I agree with the Council that the clearing of trees for the proposed subdivision would not preserve the amenity of the area including biodiversity values as sought by cl 5.9, and would have an adverse impact on the habitat of the Speckled Warbler and on the Speckled Warbler.
Conclusion
111Based on my assessment of the likely impacts of the proposed development, I am not satisfied that the site is suitable for the development, and consent to the Subdivision application should be refused. That conclusion makes it unnecessary to consider the other submissions made by the Council relating to the expectations of the purchasers of lots in the subdivision approved by the 2008 Consent, and its submission that Kerford is attempting to resile from representations made in the course of assessment of that application.
112The orders of the Court are:
Appeal 10622 of 2011
- The appeal is dismissed.
- Development application DA 10.2011.390925.1 for a 15 lot residential subdivision is refused.
- Exhibits are returned except for exhibits B, G and 2.
Appeal 10817 of 2011
- The appeal is dismissed.
- Application to modify development consent 10.2006.27318.5 granted on 3 March 2008 (as modified) is refused.
- Exhibits are returned except for exhibits 4 and F.
Linda Pearson
Commissioner of the Court