Landcorp Australia Pty Ltd v Central Coast Council

Land and Environment Court (NSW)|2025-02-06

JUDGMENT

These proceedings are an appeal by Landcorp Australia Pty Ltd under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Central Coast Council's deemed refusal of development application DA/1894/2023 (Development Application).

The proposal

The Development Application as amended seeks consent for a 53 -lot subdivision, with one lot provided as public open space (RE1), demolition of the existing structures and construction of six dwellings including associated tree removal and civil infrastructure at 23-25 Albert Warner Drive, Warnervale (site).

The Issues

On 28 November 2024, the Respondent filed its Amended Statement of Facts and Contentions (ASOFC) raising several issues with the development including:

the biodiversity development assessment report (BDAR) and how biodiversity credits had been calculated;
urban tree retention/adequacy of avoidance and minimisation of impacts;
the adequacy of the arboricultural impact assessment; and
bush fire including relevantly the impact in terms of APZs for Lots 121, 122 and 154 and the likely fire run for Lot 154 from the vegetation within the Sparks Road corridor.

Expert evidence

Several experts were engaged to address these issues and the following joint reports were before the Court: 1. joint civil engineering report filed 10 December 2024 (exhibit 2); 2. joint bushfire report filed 13 December 2024 (exhibit 3); 3. joint planning report filed 18 December 2024 (exhibit 4); and 4. joint ecological and arboricultural report filed 18 December 2024 (exhibit 5).

The hearing

The matter proceeded to hearing on 4 February 2025 commencing with a site view. When the hearing resumed in Court the next day the Council was asked to identify the contested issues. At that time the Council informed me that it no longer raised issue with the applicant's revised BDAR, apart from its certification (I will deal with this issue later). It also informed me as a result of the joint reporting and other material provided that the remaining issues were now discrete and related to: the extent of the fire run, the size of APZs, the habitat corridors, tree removal and connectivity. Overnight discussions between the parties ensued and agreement was reached to resolved all outstanding issues by further amendment of the subdivision plan and the draft conditions of consent.
In that regard, it is to be noted that the amended subdivision plan has increased the buffer on the northern boundary to 20m as an outer protection zone and this has resulted in the loss of two lots (approximate to Lots 121 and 120) to allow a 3.4m APZ inner protection zone and a 6m APZ inner protection zone on a reconfigured Lot 152. There has also been an extension of 5m buffer on the western boundary for Lot 136 to Lot 140 and additional tree planting for habitat on Lot 135 which has assisted to address Dr Mclean's concern about connectivity.
At the request of the parties the hearing was adjourned and the Court arranged for a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conference.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the Court could have made that decision in the proper exercise of its functions.
The preconditions relevant to the exercise of the Court's power to make the agreed final orders were addressed in a jurisdictional statement annexed to the s 34 agreement. In that regard, I note the following:

Integrated Development

The proposal was nominated on the Development Application form as integrated development under s 4.46 of the EPA Act as it requires authorisation under s 100B of the Rural Fires Act 1997 (RF Act) and s 90 of the National Parks and Wildlife Act 1974.

Rural Fires Act 1997 (RF Act)

The amended Development Application is an integrated development for the purposes of s 4.46 of the EPA Act as the proposed development seeks consent for residential purposes.
Section 100B(3) of the RF Act requires that a bush fire safety authority must be obtained from the RFS for development involving the subdivision of land that could be used for residential purposes. The site is mapped as "bushfire prone land", and the amended Development Application seeks consent for subdivision of bush fire prone land for a residential purpose (s 100B(1)(a)).
RFS issued a bushfire safety authority pursuant to s 100B and General Terms of Approval (GTAs) on 15 January 2024 in relation to the original form of the proposed development.
On 30 January 2025, RFS issued its GTAs in relation to the amended Development Application.
The Applicant had an Amended Bushfire Assessment Report prepared by Black Ash Bushfire Consulting, dated 30 September 2024 (Tab 8 of exhibit B) in relation to the amended Development Application. The report certified that the proposed development complies with the performance criteria within the Planning for Bushfire Protection 2019 (PBP).
In accordance with s 4.47 of the EPA Act, the agreed conditions of consent include the requirement to comply with the recommendations in the Amended Bushfire Assessment Report.
Accordingly, I am satisfied that the proposed development complies with the performance criteria in the PBP.

Biodiversity Conservation Act 2016 (BC Act) and State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP)

BC Act

Part 7 of the BC Act regulates the biodiversity assessment requirements for various types of development approvals under the EPA Act. Related to this assessment is the biodiversity offset scheme, which provides a framework for offsetting unavoidable impacts on biodiversity prescribed under Pt 6 of the BC Act as well as the Biodiversity Conservation Regulation 2017 (BC Regulation).
Under s 7.7(2) of the BC Act, if a proposed development is deemed "likely to significantly affect threatened species", the application for development consent is to be accompanied by a BDAR.
Section 7.2 of the BC Act thereafter provides a series of triggers for when a proposed development is deemed "likely to significantly affect threatened species". In summary, these are: 1. if the proposed development is considered likely to impact threatened species or ecological communities in consideration of the matters specified under s 7.3(1)(a)-(e); 2. if the proposed development exceeds the biodiversity offsets scheme threshold; or 3. if the works proposed are to be carried out in a declared area of outstanding biodiversity value.
In relation to development which "exceeds the biodiversity offsets scheme threshold", s 7.4(1) of the BC Act establishes that a proposed development is considered to exceed the biodiversity offsets scheme threshold if it is development "of an extent or kind that the regulations declare to be development that exceeds the threshold".
Clause 7.2 of the BC Regulation provides that the clearing of native vegetation is declared to exceed the biodiversity offsets scheme threshold if the total area to be cleared is in excess of the amount nominated under the Table at cl 7.2, which is calculated as a function of the total area of the land on which the clearing is to take place.
Pursuant to the cl 7.2 Table, for land that is between 1 and 40ha in area, clearing 0.5ha or more of native vegetation is considered to exceed the biodiversity offsets scheme threshold.
The site has a total area of 5.197ha. The amount of vegetation which will be impacted by the proposed development is 3.02ha (see section 8 in the Amended Biodiversity Development Assessment Report (ABDAR) prepared by Enviro Ecology dated 28 January 2025 (Tab 4 in Exhibit E)). Accordingly, pursuant to s 7.7 of the BC Act, the Development Application is required to be accompanied by a BDAR.
The BDAR satisfies the requirements of the BC Act because: 1. it is required, by s 6.12 to be "prepared by an accredited person" and the report has a one of several persons identified at Chapter 1.5, p12, Tab 4 of Exhibit E, Alex Fraser who holds such accreditation. Mr Fraser describes himself as having co-authored, reviewed the report, applied quality assurance, applied the biodiversity offset payment calculator inputs, created the credit report generation, provided a report review and sign off. Those matters are typical of any scientific report which may be produced with the input of multiple technical experts, but where the overall ownership, responsibility, assembly or in this case "preparation" is one person. Here that is the relevantly accredited Mr Fraser; 2. the term "prepared by" should be construed in this scheme of legislation as "refer[ring] to a document drawn up by the officer whether or not any particular contribution of ideas is evident in the contents of it" per Jacobson J in Australian Securities and Investment Commission v Citigroup Global Markets Australia Pty Limited (No 1) [2006] FCA 845 at [15]-[16] citing Trade Practices Commission v TNT Management Pty Ltd (1982) 39 ALR 665 per Bowen CJ who said at 670 "this appears to be the ordinary meaning of the word 'prepare' in relation to writings or documents". Jacobson J went on to quote Bowen CJ at 670, who said that, "[i]f something more than physical authorship is required it is difficult to define where the line should be drawn" and also observed that "[w]hatever test would have to be applied it would seem to lead to an awkward inquiry of the intellectual contribution of the officer" (at [16]); and 3. this case is distinct from 746 Greendale Road Greendale Pty Ltd v Liverpool City Council [2023] NSWLEC 1372, where the accredited person only accepted responsibility for the time certification for the purposes of s 6.15 of the BC Act (at [31]), but did not do all of the other things that Mr Fraser has done in this case, as listed in (1) above and expressed at Chapter 1.5, p12, Tab 4 of Exhibit E.
Consistent with s 7.7 of the BC Act, the amended Development Application includes an ABDAR which recommends the implementation of a number of mitigation measures through the Vegetation Management Plan for proposed Lot 154 and Vegetation Management Plan in relation to the 5m buffer prepared by Enviro Ecology dated 12 November 2024 (Tabs 4 and 5 of Exhibit C).
The ABDAR provides that the proposed development is considered to have a low impact on habitat connectivity for threatened entities. The proposal has sufficiently avoided and minimised impacts on wildlife that may move through remnant vegetation in the assessment area. It is considered that the proposal will not decrease, amplify gap distances, or meaningfully alter movement corridors in the assessment area to an extent that would adversely affect a threatened species (see Section 5 - Avoid and Minimise - ABDAR Tab 4 of Exhibit E).
Accordingly, despite a revision to the subdivision plan to facilitate the s 34 agreement, which establishes a lesser impact by an increase in corridor connectivity and likely overstates now the credits generated, this is a permissible approach pursuant to s 7.13(4) of the BC Act for the consent authority, and with that, as well as the other matters listed above, I accept that the applicable provisions of the BC Act (particularly s 7.13) and the BC Regulation have therefore been considered and satisfied.

Chapter 2 - Vegetation in Non-Rural Areas

Chapter 2 of the Biodiversity SEPP details provisions regarding the preservation and management of vegetation in non-rural areas.
Section 2.3 of the Biodiversity SEPP provides the land to which Chapter 2 applies. The Site is not located within the local government area in s 2.3(1)(a). The Site is located within land zoned part R1 General Residential, Zone R2 Low Density Residential and Zone RE1 Public Recreation as identified in section 2.3(1)(b).
Chapter 2 of the Biodiversity SEPP applies as the proposed development seeks consent to remove 3.02ha of native vegetation and retain 442 trees within land zoned RE1 and within the proposed buffer location shown on the Tree Removal/Retention Plan prepared by ADW Johnson dated 23 September 2024 (Tab 6 of Exhibit B).
Pursuant to s 2.7(1) of the Biodiversity SEPP, a permit or approval to clear vegetation is not required if it is clearing of a kind that is authorised under the Local Land Services Act 2013 (LLS Act), s 60O or Pt 5B.
Section 60O of the LLS Act provides that the clearing of native vegetation in a regulated rural area is authorised under other legislation as the proposed clearing 3.02ha of native vegetation and the retention of 442 trees, is authorised by a development consent under Pt 4 of the EPA Act (s 60O(a)(i)).
The Applicant has provided the following documents in support of the proposed tree removal: 1. Tree removal and tree retention plans prepared by ADW Johnson Pty Limited dated September 2024 (Tab 6 in Exhibit B); 2. Amended Landscaping plans (Revision H) prepared by Moir Studio dated 16 December 2024 (Tab 4 in Exhibit D); 3. Arboricultural Impact Assessment prepared by Advanced Treescape Consulting dated 5 July 2023 (Tab 4 in Exhibit A); 4. Amended Arboricultural Impact Assessment prepared by Advanced Treescape Consulting dated 17 December 2024 (Tab 6 in Exhibit D); 5. ABDAR (Tab 3 in Exhibit E); and 6. Amended Statement of Environmental Effects prepared by Planning Ingenuity Pty Ltd dated 14 November 2024 (Tab 1 in Exhibit B).
Accordingly, the parties submit and I accept that the proposed development complies with s 2.7 of the Biodiversity SEPP.

Chapter 4 Koala Habitat Protection 2021

Chapter 4 of the Biodiversity SEPP details provisions regarding the conservation and management of areas of natural vegetation that provide habitat for koalas.
Section 4.9 refers to land that does not have an approved koala plan of management which applies. The site contains tree species that are used by Koalas identified as "Koala use tree species" in the Biodiversity SEPP.
Sections 1.7.4.1 and 4.3 of the ABDAR (Tab 3 in Exhibit E) includes an assessment against Chapter 4 of the Biodiversity SEPP. The ABDAR notes there is an insignificant area of Koala habitat on the Site. The ABDAR recommends that during construction and operation of the proposed development, the potential for direct and indirect harm to Koala habitat will be actively managed by the implementation of a number of mitigation measures as detailed in section 5.
Accordingly, I am satisfied that the proposed development complies with s 4.9 of the Biodiversity SEPP.

Conditions of consent

The parties have agreed on conditions of consent. The parties agree that the conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles.

Power of the Court to make orders in accordance with the section 34 agreement

The Applicant considers that the approval of the amended Development Application does not result in any contravention of the EPA Act, any environmental planning instrument or the EPA Regulation. As such the Court may exercise its function under s 4.16(1) of the EPA Act and grant consent to the amended Development Application.
The terms of the decision set out in the parties' s 34 agreement represent a decision the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act).
Having regard to all of the above matters, including a consideration of the jurisdictional statement, I am satisfied that that the jurisdictional prerequisites to the proper exercise of the power to approve the amended Development Application have been met.
Accordingly, the Court notes that: 1. The Respondent, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending DA/1894/2023 in accordance with the Amended Proposed Subdivision Layout Plan prepared by ADW Johnson dated 5 February 2025.
The Court orders that: 1. The Applicant is to pay the Respondent's costs as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development consent is granted to DA/1894/2023 for a 53-lot subdivision, demolition of existing structures and construction of 6 dwellings including associated tree removal and civil infrastructure works at 23-35 Albert Warner Drive, Warnervale in accordance with the conditions marked 'Annexure A'.

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: 06 February 2025

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cases Cited (3)