Kerford Developments Pty Ltd v Albury Council

Issues 18In the DA appeal, the issues are whether s80(2) of the Act requires the refusal of the application; whether the site is unsuitable because part is designated as a reserve for environmental protection; whether the proposed development will preserve the amenity of the area including biodiversity values through preservation of trees and other vegetation; and whether the proposed development is likely to have unacceptable amenity impacts on persons who purchased lots in the subdivision approved in the 2008 Consent. 19In the Modification appeal, the issues are whether there is power to modify the 2008 Consent, or whether that would not result in the development as modified being substantially the same as that for consent was granted; whether there was power to impose condition A4 requiring the dedication of land; whether the modification should be refused because of impacts on the amenity of the area, including biodiversity values, the aesthetic character and public amenity, protection of native vegetation, and consistency with the public interest in the orderly development of land; and whether the modification should be refused in the exercise of discretion. 20The Council submits that the Court lacks power to grant approval to either application, on the basis that s80(2) of the Act prevents consent being granted to the Subdivision application, and that the threshold requirement that the development as modified is substantially the same as that for which consent was originally granted is not met for the Modification application. If there is power to grant approval, the Council submits that both applications should be dismissed on the merits.

Planning controls 21The site was zoned Albury Fringe under the then Hume Local Environmental Plan 2001 when development application 10.2006.27318.1 was lodged in 2006 and the 2008 Consent was granted. 22The Albury Local Environmental Plan 2010 (the 2010 LEP) commenced on 13 August 2010. Under the 2010 LEP the site is zoned R1 General Residential. The land immediately to the east and to the north on the other side of Thurgoona Drive is also in the R1 General Residential zone. The land to the west on the other side of Kerr Road is zoned E3 Environmental Management. The zoning of the site and the surrounding land is shown on the locality map: Annexure C 23The aims of the 2010 LEP are provided in cl 1.2: (2) The particular aims of this Plan are as follows: (a) to give effect to the desired outcomes, principles and actions contained in the Council's adopted strategies and policy documents, and (b) to promote sustainable urban development by providing for efficient management of urban growth and resource utilisation, and (c) to promote a city for the people, with a high level of social and physical amenity and a diversity of activities and uses, and (d) to maintain or improve biodiversity across Albury, and to avoid significant impacts on matters of environmental significance. 24The objectives of the R1 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. · To encourage affordable housing. · To encourage medium density housing that is designed to achieve a high standard of amenity. 25Under cl 2.3(2) of the 2010 LEP, the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. Subdivision requires development consent (cl 2.6). 26Clause 5.9 provides for preservation of trees and vegetation, and the relevant provisions are: 5.9 Preservation of trees or vegetation (1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation. (2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council. Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner. (3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by: (a) development consent, or (b) a permit granted by the Council. ... (5) This clause does not apply to a tree or other vegetation that the Council is satisfied is dying or dead and is not required as the habitat of native fauna. (6) This clause does not apply to a tree or other vegetation that the Council is satisfied is a risk to human life or property. 27For trees and vegetation not covered by cl 5.9, cl 5.9AA provides that ringbarking, cutting down, topping, lopping, removal, injuring or destruction is permitted without development consent. 28The Albury Development Control Plan 2010 (the DCP) applies. Part 5 provides for Tree Preservation. Clause 5.2 Tree Preservation Order provides that cl 5.9 of the 2010 LEP, and section 5, applies to all trees over 4.5m in height and 3m in spread. The objectives of the Tree Preservation Order are:

1. To conserve and enhance the existing aesthetic character and public amenity of Albury 2.To control the management and/or removal of unsuitable trees 3.To assist the retention and ongoing protection of native vegetation that may have derived from endangered ecological communities and/or that may be habitat for threatened species. 29Clause 5.6 Threatened Species provides in part: The primary effect of receiving bio-diversity certification on the 2010 LEP is that any development requiring consent (or any activity under Part 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act) not requiring consent) is taken to be development that is not likely to significantly affect threatened species. This removes the need to address the Assessment of Significance for threatened species (s.5A of the EP&A Act), prepare species impact statements or meet concurrence/consultation requirements involving the Director General of the NSW Department of Environment, Climate Change & Water (DECCW) or the Minister for Climate Change and the Environment. All development is however required to comply with the biodiversity protection measures of the 2010 LEP, including Land Use Table, zone objectives and related provisions and Clauses 2.6(f), 5.9, 6.3, 7.2, 7.3 and 7.5, which outlines the preservation requirements for native vegetation. Any development, which does not meet these requirements, will be subject to the provisions of the Threatened Species Conservation Act, 1995. In this regard, Council may require additional information, including an Assessment of Significance as part of it's consideration of proposed development. 30On 15 February 2011 the Minister for Climate Change and Water made an order under cl 25(2) of Sch 7 to the Threatened Species Conservation Act 1995 (the TSC Act) conferring biodiversity certification on almost all of the land controlled by the 2010 LEP, including the site.

Evidence 31The hearing commenced on site with a view. Evidence was given on site by the owner of lot 5 created in the subdivision approved by the 2008 Consent, which adjoins the Reserve lot. That evidence was that approval of the application would result in the loss of mature trees along Thurgoona Drive, and that they had bought their block on the basis that the reserve was part of the development. 32Expert planning evidence was given on behalf of the applicant by Mr James Laycock and on behalf of the Council by Mr Michael Keys. 33In their joint report, the planners agreed that the site and the surrounding area is currently undergoing a transition from being "fringe urban" land to "urban" land as proposed by the Albury Land Use Strategy 2007 (ALUS) and the 2010 LEP. Under the ALUS the site and the area is located in the northeast growth corridor of Thurgoona. They agreed that the ALUS is a significant underpinning strategic planning document for the 2010 LEP, and that under the ALUS the site is identified as "existing urban" with surrounding land in a general northeast direction from Thurgoona identified as "urban expansion". None of the site, or the Kerr Road or Thurgoona Drive road reserves, are identified as "Linear Conservation, Open Space Connections". The planners agreed that the ALUS has been implemented by the 2010 LEP with the use of the R1 General Residential Zone and the Urban Release Area planning provisions; that the site is not one of the areas excluded from biodiversity certification of the 2010 LEP; and that the proposed development of the site for residential purposes is biodiversity compliant development. The planners disagreed on whether the applications are contrary to the public interest in terms of the orderly development of the site because of biodiversity certification of the 2010 LEP. The planners disagreed on whether the desired future character of the area in which the site is located is reasonably known. Mr Laycock was of the opinion that it is reasonably known given the ALUS and the 2010 LEP; Mr Keys noted that the Council is about to commence a major strategic planning project for the Thurgoona/Wirlinga area to prepare a structure plan for future planning and development of this key growth area of Albury.

Modification application 34It is appropriate to consider the Modification appeal first. Approval of the deletion of condition A4 and the other modifications sought would remove the legal barrier presented, on the Council's submissions, by s80(2) of the Act to approval of the Subdivision application. 35The Council contends that the modification sought under s96(2) of the Act cannot be granted because the deletion of condition A4 and consequential amendments of the 2008 Consent would not result in the development as modified being substantially the same as that originally approved. The Council contends that condition A4 is lawful, and that s101 of the Act would prevent a challenge to the validity of conditions A1, A4, D4 and F9. If there is power to approve the modification, the Council contends that it should be refused, because the land affected by condition A4 should be designated as a reserve for the environmental protection of the Speckled Warbler; and because Kerford has obtained the benefit of the 2008 Consent and is seeking to avoid a burden imposed by that consent, and should not be permitted to resile from its representations that it would designate the land subject to condition A4 as an environmental reserve for the Speckled Warbler. 36Kerford submits that the development originally approved was for an 18 lot subdivision, now 20 lots. Deletion of condition A4 and the other consequential amendments would not of itself increase the number of lots, or change the subdivision layout. Kerford submits that it is the Subdivision application, and not the Modification application, that proposes the subdivision of the Reserve lot, and that application being a fresh development application does not require consideration of whether the ultimate development will be substantially the same development as that originally approved. Condition A4 requires the dedication of land free of cost, but was not allowed by or determined in accordance with a contributions plan and is therefore in breach of s94B of the Act, and would not be protected by s101 of the Act. Condition A4 is also inconsistent with the subsequent inclusion of the land in the R1 zone and is unnecessary because of the biodiversity certification of the 2010 LEP.

Substantially the same 37Section 96(2)(a) of the Act requires that I be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, namely the 2008 Consent before the previous modifications. 38Consideration of this issue requires both qualitative and quantitative comparison: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298. The test of whether the development is substantially the same requires assessment of whether the modification "does not radically transform the originally approved development": Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351. The word "substantially" means "essentially or materially having the same essence": Vacik Pty Ltd v Penrith City Council (Land and Environment Court, Stein J, 24 February 1992); North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468. 39In order to undertake the qualitative and quantitative comparison required, an understanding of "the development" for which consent was granted is required. The development the subject of development application DA10.2006.27318.1 was described as being for a 24 lot residential subdivision in accordance with plans annexed to the application, and proposed a "20m wide flora and fauna protection area" along the northern boundary of proposed lots 2-8. Kerford submitted with the development application an Assessment of Significance dated September 2006 prepared by Ms Glenda Datson, a horticultural and environmental consultant. That report noted (at 2.0) that the Thurgoona Threatened Species Conservation Strategy (TTSCS) studies and other studies (Davidson 2004; Grabham and Datson 2003) had found that the tree plantation portion of the land on the western side of Kerr Road, opposite the site, was of high conservation significance because it was providing habitat for a number of threatened species. A study of Department of Defence owned land to the east of the site found that that land was also of high conservation significance because it contained Grassy White Box Woodland as well as a number of threatened species including the Swift Parrot. The report noted (at 6.1.1) that Remnant Yellow Box, White Box and Blakely's Red Gum trees (Box-Gum Woodland/Grassy Whitebox Woodland species) have been retained along and within the southern side of the Thurgoona Road road reserve, abutting the development land. These large remnant trees form part of an arboreal corridor running eastwards to Defence Department owned land, which contains significant Grassy Whitebox Woodland, and westwards to TTSCS Precinct G, Site 5. 40The report noted that the understorey has been highly modified with no indigenous middlestorey shrubs remaining; and that "exotic" native species had been introduced to the site, including Argyle Apple, Mugga Ironbark, Red spotted Gum, Wattles and River She-oaks. The report considered the effect of the development on fauna and flora species of conservation significance recorded in the Albury local government area which are known to utilise the habitat type in adjoining Thurgoona areas, including the Swift Parrot, Purple-crowned Lorikeet, Black-chinned Honeyeater, Speckled Warbler, Regent Honeyeater, and Squirrel Glider. In relation to the Speckled Warbler, the report noted that during field studies in August 2006 three birds were observed on the site, and commented (at p8) that "the Thurgoona population is considered to be part of the Albury (local) population", and that while development of the site would not place the loca population at risk of extinction, any loss of habitat for trios and breeding pairs is undesirable. The report concluded that the proposed development would not have a significant effect on threatened species and ecological communities and their conservation, however the loss of any habitat is undesirable. 41Ms Datson provided a further report dated September 2006 on "Actions recommended to be taken to ameliorate the impacts from the development of Lot 19 DP 1057228, Cnr Kerrs Rd & Thurgoona Dr, Thurgoona in relation to Speckled Warbler foraging habitat". That report noted that the Speckled Warbler, Squirrel Glider and Box-Gum Woodland were most likely to be affected as a result of development, and recommended 10 ameliorative actions. Those actions included retaining a 20m wide fenced strip of land along the northern boundary of the site which contained native grasses on which the Speckled Warbler forages, and which would allow for a viable wildlife corridor between patches of habitat; restricting access and limiting disturbance of this strip; revegetating the disturbed area of the wildlife corridor; replacing fencing; installing nest boxes for Squirrel Gliders to replace hollows lost with removal of trees; and payment of money to the Thurgoona Conservation Management Trust Account equal to the cost of setting aside an equivalent area of Speckled Warbler habitat. 42The then Department of Environment and Conservation (DEC) (subsequently Department of Environment and Climate Change (DECC), later Department of Environment Climate Change and Water (DECCW), and now Office of Environment and Heritage (OEH)) in a letter to the Council dated 25 October 2006 advised that the proposal for a 20m corridor was inadequate, and was inconsistent with the TTSCS requirement for a 60m wide corridor along road reserves where there are large hollow bearing trees. DEC considered that the proposal was likely to have a significant effect on threatened species, and that a Species Impact Statement (SIS) was required. 43Ms Datson prepared an "Addendum to Assessment of Significance for Threatened Species" dated November 2006, in which she noted that the recommended 20m wide corridor was in addition to the 20m road reserve, which therefore aligned more closely with the TTSCS recommendation, and concluded that there may be better conservation gains enabled by the retention of the resulting 26.5m corridor along with appropriate monetary compensation for use for Speckled Warbler or other conservation purposes. 44In her November 2006 report Ms Datson concluded that the Speckled Warbler trio observed on the habitat block reserved under the TTSCS on the western side of Kerr Road was either part of the Albury population, or if considered to be a Thurgoona population, was not viable. Ms Datson noted that there are no known populations of Speckled Warbler at other Thurgoona sites, except for a block now separated by the Hume Highway development, and that there is low potential for this trio to flock with other breeding pairs or trios from the Thurgoona area. Earlier studies had observed that the trio had occupied the habitat block on the western side of Kerr Road, moving only occasionally to the site. Since the trio was first observed, most of the land west of Kerr Road has been subdivided into large lot residential land with removal of tree cover, and Kerr Road has been sealed to cater for increased residential traffic and enabling increased traffic speed. Development of housing on residential lots in the Fairways Garden Estate would increase the cat population pressures on the retained habitat block on the western side of Kerr Road. Ms Datson considered that while the majority of the risk to the population related to the Fairway Gardens Estate development, if at least the 0.3ha native grass adjoining the roadside vegetation was retained the Speckled Warbler access to that preferred habitat would be retained, with the risk of collision with traffic. Ms Datson concluded that if this population was considered to be a viable population the development of the site would place the population at risk of extinction which would be compounded because of the likely predation from animals roaming from residences in the Fairway Gardens Estate and south of the site together with the risk of collision with traffic on Kerr Road which they had to cross to gain access to habitat. 45In a letter to the Council dated 15 December 2006 DEC noted the additional information provided in the November 2006 report, and stated it believed that there was insufficient evidence to conclude that the population is not viable, and commented: DEC remains concerned that the development is inconsistent with the Thurgoona TSCS. Approval of the development in its current form would raise questions about Councils commitment to ensuring that development within Albury LGA is sustainable and maintains or improves environmental values. Furthermore, approval of the development in its current form is not consistent with the decision taken by Council in regards to the nearby Fairway Gardens estate. Here, development was largely restricted to cleared land and a 35ha Habitat Retention Area was established. These measures were aimed at ensuring no significant impact on threatened species, including the Speckled Warbler and Squirrel Glider. 46DEC remained of the view that a SIS was required. In a letter dated 31 January 2007 DEC advised Kerford that it was not satisfied that the impact would be trivial or negligible, and that a SIS was required. 47The applicant redesigned the subdivision to provide a reserve covering approximately 30 percent of the land area, and prepared Management Guidelines for the reserve. In oral evidence Mr Laycock stated that the suggestion to set aside 30 percent of the land area as a reserve, and to gift that land to the Department of Lands, had come from DEC, and that it was his understanding that that was the only way that a SIS could be avoided. Kerford wanted to avoid preparing a SIS because of the significant cost and time delay involved. 48The Management Guidelines dated August 2007 (exhibit 1, Tab 11) divided the site into three zones: Speckled Warbler Reserve, which was to be "gifted to public ownership and will be incorporated into the retained habitat network as described in the TTSCS (2004)"; potential habitat areas, being the streetscape of the proposed residential area; and the roadside reserve along the northern boundary. The purpose of the Speckled Warbler Reserve was stated to be to "retain and enhance 1.784ha of suitable habitat for the SW within the study area"; "maintain connectivity between adjoining sites"; and "contribute to the overall habitat area for the SW in the Thurgoona area". The purpose of the Management Guidelines was stated to be "to manage the reserve and retained habitat areas in a way that protects and enhances the habitat of the SW before, during and after the development of the site". 49The Management Guidelines stated that the amended subdivision plan and the Management Guidelines were to be lodged with the Council and a request made to DECC as "as to whether the amended subdivision layout in the context of the MP requires a SIS". 50In a letter dated 4 October 2007 the Council's Acting Town Planning Team Leader advised Kerford's consultant planner that after considering the amended subdivision plan and management guidelines for the proposed reserve, DECC had advised that the proposal remained "likely to significantly impact upon the Speckled Warbler and accordingly a Species Impact Statement is still required", however with four changes to the management guidelines and the addition of a 30m wide corridor along the southern half of the western boundary of the site to the proposed reserve, the effects on the Speckled Warbler would "be ameliorated to the extent that no significant effect is likely" (Annexure PG8, exhibit C). In an affidavit sworn on 25 September 2011, Mr Paul Guy, Director of Kerford, states: 13.I arranged for new plans for the development to be prepared that met DEC's requirements for the Reserve which were lodged with Council on 10 December 2007. The DA was approved on 3 March 2008. 51The Council's Development Application Assessment Report recommending approval of the amended application (exhibit 9) refers to the amendment to "18 lots and a large reserve with management guidelines" being now consistent with DECC advice and concerns, and to an amendment being received from Kerford on 10 December 2007 "consistent with DECC advice". The Development Application Assessment Report noted that "it is considered that the increase in the reserve with the management guidelines is sufficient to mitigate the risk to the Speckled Warbler". The Conclusion notes that the originally proposed 20m wide exclusion zone along the northern boundary had been amended to create a habitat reserve with management plan predominantly across the northern area of the site, and that this was extended to include a narrower section along the western Kerr Road boundary; that Parks and Recreation staff had given general endorsement of the ameliorative measures proposed; and concludes that "the application has responded to the need to protect a local population of a threatened species". 52Based on the process of consideration of the development application by Council as outlined above, leading to approval of the amended proposal for 18 lots and the Reserve lot as shown on the stamped plans in accordance with the recommendation in the Development Application Assessment Report, I am satisfied that the development for which consent was granted in 2008 included the ameliorative measures proposed by the applicant in the form of the Reserve lot and Management Guidelines. 53Section 78A(8)(b) of the Act, which requires that a development application be accompanied by a SIS if the application is in respect of development on land that "is likely to significantly affect threatened species, populations or ecological communities, or their habitats", focuses on the development proposed in the development application. It is the development as it stands immediately before the determination of the application that has to be evaluated, including any ameliorative measures proposed: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Anor [2010] NSWLEC 48; Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121. 54The Reserve lot and the Management Guidelines formed part of the amended development as proposed by Kerford, submitted to Council on 10 December 2007, and approved by the Council. It is clear from the correspondence between DEC and the Council, and the Council's Development Application Assessment Report, that the amendment of the application to include the Reserve lot to retain and enhance habitat which was proposed to "be gifted to public ownership" and the Management Guidelines applicable both to the Reserve lot and to the residential lots, as ameliorative measures, was sufficient to satisfy the Council that the development was not likely to significantly affect threatened species, and could be approved without a SIS. 55While the deletion of condition A4 would of itself not alter the number of lots approved in the 2008 Consent, the deletion of the requirement that the Reserve lot be reserved for environmental protection would remove the ameliorative measures that enabled the Council to grant consent, and would in my view "radically transform" the originally approved development. I am not satisfied that if condition A4 were deleted and the associated amendments made to other conditions that the development to which the consent as modified relates would be substantially the same development as the development for which consent was originally granted.

Condition A4 56Kerford submits that condition A4 requires the dedication of land free of cost within the meaning of s94 of the Act, and was imposed in breach of s94B of the Act which provides that a condition requiring dedication of land may be imposed only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under s94EA. Kerford further submits that condition A4 is inconsistent with the subsequent inclusion of the land in the R1 zone under the 2010 LEP, and is unnecessary because of the biodiversity certification of the 2010 LEP. 57The Council relies in response to that submission on s101 of the Act, which provides: 101 Validity of development consents and complying development certificates If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given. 58I agree with Kerford's submission that s101 would not protect a condition imposed in breach of s94B the Act: Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695. However, in my view condition A4 was not the source of a requirement that the Reserve lot be dedicated free of charge. Rather, the proposal to dedicate the land as a retained habitat area was part of the development application which included the amended plans and management guidelines in their final form as submitted to the Council on 10 December 2007, and referenced in condition A1 of the 2008 Consent (exhibit 1, tab 12). Section 80A(1)(a) authorises the imposition of a condition if it relates to any matter referred to in section 79C(1) of relevance to the development the subject of the consent. Those matters include the likely impacts of the development, including environmental impacts on the natural environment (s79C(1)(b)). In my view condition A4 provides the process for implementation of the proposal made by Kerford for creation of the reserve in order to address the likely impacts of the proposed development on the Speckled Warbler: see Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52. The Council's assessment report on the Modification application (exhibit 1, p461) notes that the terms of conditions A4, D4 and F9 reflect the requirements of the then NSW Department of Lands as part of their agreement to accept ownership and management of the land. I am satisfied that condition A4 gave effect to, and provided the process for implementing, the commitment made by Kerford to provide the Reserve lot as part of the development application, and did not require the dedication of land free of cost. Conclusion 59The conclusion that the development as proposed to be modified is not substantially the same as that for which consent was initially granted means that the Modification application must be refused, and the Modification appeal dismissed. In those circumstances it is not necessary to consider Kerford's submissions that condition A4 is unnecessary, and inconsistent with the zoning, or the other matters going to the merits of the Modification application.

Subdivision application Section 80(2) 60The Council contends that s80(2) of the Act precludes the granting of consent to the Subdivision application. Section 80(1) and (2) provide: 80 Determination (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development. 61The Council submits that the subdivision of the land would if carried out result in a contravention of conditions A1, A4 and D4 of the 2008 Consent and hence the Act, and the requirements of s80(2) are satisfied. Condition A4 states that the reserve is not to be dealt with as a residue lot to a subdivision, and that requirement was engaged once Kerford undertook the development the subject of the 2008 Consent. Kerford is obliged not to use the Reserve lot as a residue lot and it is in breach of that obligation by submitting the development application. The Council relies on the decision of Bignold J in Rutland v Shoalhaven Shire Council (1997) 94 LGERA 370 for the proposition that where development proposed is for subdivision and would result in the contravention of an earlier consent, s80(2) requires refusal of the application. 62Kerford submits that s80(2) does not in terms require refusal of an application merely because the development the subject of the application would, if carried out, be inconsistent with the conditions of a previous development consent. To fall within s80(2) the Court must be satisfied that if the subdivision is carried out it will result in a breach of the Act, an environmental planning instrument (EPI) or the regulations. In this instance the 2010 LEP provides that the proposed subdivision may be carried out with development consent, and a contravention of s76A of the Act would only arise if the subdivision is carried out otherwise than in accordance with the consent and conditions. The relevant time for consideration of any contravention is the time at which the subdivision is carried out, and if a proposed subdivision is inconsistent with the conditions of an existing development consent and those conditions are amended to remove the inconsistency before the subdivision is carried out, there is no relevant "contravention". In this matter the conditions in the existing development consent with which the proposed subdivision would be inconsistent will be removed upon the granting of the development consent for the subdivision by the imposition of a condition modifying the earlier consent under s80A(1)(b) of the Act. 63Kerford submits that Rutland can be distinguished from the facts in this matter where the earlier condition was unlawfully imposed contrary to s94; there is no condition expressly prohibiting the subdivision of the land; and the biodiversity certification of the 2010 LEP has removed any justification for the earlier condition; and that in any event Rutland was disapproved by the Court of Appeal in Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104. 64At issue in Rutland was a condition imposed on a development consent for subdivision of land into two lots creating restrictions as to user under s88B of the Conveyancing Act including "(a) No further subdivision of proposed Lot A (85.6ha)". The registration of the Deposited Plan included a restriction stating "There shall be no subdivision of the lot burdened without the consent of the Shoalhaven City Council". In an appeal against refusal of development consent to subdivide that lot, Bignold J determined a number of questions of law, including whether the carrying out of the subdivision would involve a contravention of the earlier development consent, and whether the proposed development was legally incapable of being granted development consent by virtue of s91(2) (now s80(2)) of the Act. Bignold J concluded (at 375) that the development consent properly construed imposed as a condition "the absolute prohibition of any further subdivision of the subject land" and that the carrying out of the proposed subdivision would result in a contravention of that consent. Bignold J held: For reasons that will appear when I consider question 3, I am of the opinion that s 91(2) of the EP&A Act is the statutory provision most relevantly to be applied to my findings that the carrying out of the proposed subdivision according to the applicant's development application would involve a contravention of the development consent. However, even apart from that specific provision, I am of the opinion that the proposed development would, by virtue of the direct conflict with the development consent, not be legally capable of receiving development consent granted under the EP&A Act for reasons similar to the principles propounded by Hope J (as he then was) in Laidlaw Pty Ltd v Cleverley (1972) 25 LGRA 196 at 205 and 206 and by Mason J (as he then was) in Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at 146; 28 LGRA 410 at 417. 65Addressing the application of s91(2), Bignold J held (at 376) that s91(2) operated by way of qualification to the powers of the consent authority to determine a development application by expressly removing the discretion to grant development consent, and that it is no answer to its operation that the proposed development is permissible development. Section 91(2) operated to require refusal of the development application because that application being an application for subdivision fell squarely within the ambit of the subsection; subdivision of the land would result in a contravention of the Act, namely ss76(2)(b), 122-124 and 125; and the relevant contravention was the direct infringement of the condition of the earlier consent, the legal effect of the prohibition operating either directly prohibit the further subdivision of the land or indirectly by virtue of the s88B instrument. Bignold J held that the condition was intended to have a continuing effect after the subdivision had been created. While accepting that generally speaking it is not relevant to the determination of a development application that there exists in respect of the land a number of existing development consents, and that generally speaking the grant of a new development consent "will constitute a fresh chapter in the planning history of a development site", Bignold J held (at 377-8): Despite these established axioms of planning law, the fundamental weakness in the applicant's argument is that it fails to appreciate that the very legal existence of the subject land (and the second lot created in the same subdivision) depends upon the development consent which itself is predicated upon the stipulation that the subject land be not further subdivided. Ultimately, the applicant's argument does not come to terms with the ongoing effect of that stipulation not only for any future development of the subject land, but also in respect of the second lot that was created by the development consent. (The applicant's current development application only relates to the subject land). It is because of the ongoing effect of the condition that the obtaining of a fresh development consent does not constitute an independent chapter in the planning history of the subject land. However, the complete answer to the Applicant's argument is provided by the very existence of s 91(2) of the EP&A Act which, in the context of the conferral of plenary power on a consent authority to determine a development application, imposes an imperative duty to refuse such an application "where the development ... being the subdivision of land, would if carried out, result in a contravention of an environmental planning instrument or of this Act, whether arising in relation to that or any other development". 66Rutland was considered by the Court of Appeal in Pancho Properties , which concerned a development application for use of an existing dwelling as a manager's residence where condition 3 of a previous consent for the erection of a "replacement dwelling" on the same lot provided that upon completion of the replacement dwelling the original dwelling "must be removed from the site". Giles JA, with whom Heydon JA and Young CJ in Eq agreed, noted: 44 Section 91(2) of the Act is concerned with subdivision and is not presently relevant. What appear to be the relevant passages in Laidlaw Pty Ltd v Cleverley and Woollahra Municipal Council v Banool Developments Pty Ltd are to the effect that consent can not be given to a development which would be contrary to an environmental planning instrument. With respect, there is not a necessary transmission to conflict with a condition of an earlier development consent, and I do not think these cases provided a sound basis for the decision in Rutland v Shoalhaven City Council . 45 In Mason Architects v North Sydney Council development consent had been granted on conditions which included that a restriction as to user be created limiting dwelling size on some of the lots to be developed. Application was then made for consent to development whereby the dwelling size would be greater than earlier stated. It was held that the judgment in Rutland v Shoalhaven City Council was determinative and that the application could not be approved. 46 Talbot J clearly enough doubted the correctness of these decisions, but distinguished them on the ground that there could not at the time of the hearing be conflict in the present case because the appeal in relation to condition 3 suspended its effect. I have some difficulty with this distinction. If the appeal against the refusal of consent to use the existing dwelling as a manager's residence were allowed, and the appeal in relation to condition 3 were then dismissed, where would that leave the consent to use the existing dwelling as a manager's residence? 47 In my opinion, however, condition 3 does not preclude consent to a use of the existing dwelling whereby it does not have to be removed from the land. Condition 3 is, of course, a very relevant matter in considering whether or not one or other of the applications should be granted, but it would be possible for consent to use the existing dwelling as a manager's residence or as a rural worker's dwelling to be granted on condition that the consent to the erection of the new dwelling be modified or surrendered (s 80A(1)(b) of the Act) or on condition that the new dwelling be removed (s 80A(1)(c)). That is sufficient to determine the separate question. However unlikely the grant of consent may be, it can not be said that the applications must fail. In the language of the question, they are competent. 67The Council submits that Bignold J's finding on s91(2) was not considered in Pancho Properties , and that accordingly, Rutland is still authority for the first part of Bignold J's reasoning. The Council submits that it was the latter part of Bignold J's reasoning that was later applied by Lloyd J in Mason Architects v North Sydney Council [1999] NSWLEC 176, criticised by Talbot J in Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60, and criticised in Pancho Properties . 68While Pancho Properties was not concerned with an application for subdivision, and s91(2) (and thus s80(2)) was not directly applicable, I agree with Kerford that the disagreement with the reasoning in Rutland addresses the underlying basis for that reasoning on both aspects as articulated by the Council. While Giles JA accepts that the authorities relied upon by Bignold J support the proposition that consent cannot be given to a development which would be contrary to an EPI (and which may be subject to the possibility of overcoming that barrier with a SEPP 1 objection: Bowen v Willoughby City Council [2000] NSWLEC 69) it does not follow that consent cannot be given where there is a conflict with a condition of an earlier development consent. I agree with Kerford's submissions that the observations of Giles JA concerning both the legal effect of inconsistency with previous consent conditions (at [44]) and the granting of consent subject to a condition modifying an earlier inconsistent condition (at [47]) apply with equal force to an application for a subdivision to which s80(2) does apply. As Kerford's submissions note, Bignold J subsequently distinguished Rutland in Moss v Kiama Council (2003) 127 LGERA 83 and Yu v Ku-ring-gai Council [2004] NSWLEC 569. In Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60 Talbot J noted (at [97]) that Rutland was based on the concept of a condition having a continuing effect so that the obtaining of a fresh consent did not constitute an independent chapter in the planning history of the land. At [98] Talbot J concluded that no such prospective result had been identified in the case then before the Court, and concluded that the contradiction of a condition in an earlier consent by the granting of a further development consent does not, of itself, result in a contravention of the Act, an EPI or the regulations. 69If I am wrong on that, and Rutland is authority for the proposition that s80(2) requires refusal of a development application for subdivision if the approval would contravene a condition of an earlier consent, it is in my view distinguishable in the context of this application, where condition A4 does not expressly prohibit a further subdivision of the Reserve lot. 70I agree with Kerford that s80(2) does not require refusal of the Subdivision application, and that consistent with Pancho Properties if consent is granted it could be subject to a condition imposed under s80A(1)(b) requiring modification of the 2008 Consent. Whether development consent should be granted depends on an assessment of the application in accordance with s79C of the Act. 71The first issue to consider in addressing the Council's contentions relating to the suitability of the site for the proposed development is the consequence of biodiversity certification of the 2010 LEP.

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

1. The appeal is dismissed.
2. Development application DA 10.2011.390925.1 for a 15 lot residential subdivision is refused.
3. Exhibits are returned except for exhibits B, G and 2. Appeal 10817 of 2011
4. The appeal is dismissed.
5. Application to modify development consent 10.2006.27318.5 granted on 3 March 2008 (as modified) is refused.
6. Exhibits are returned except for exhibits 4 and F. Linda Pearson Commissioner of the Court

Amendments 08 February 2012 - Amendments to linked diagrams Amended paragraphs: [6], [15], & [22] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2012