UNDERLYING ZONING, INCLUSION IN THE MPIP AND BIODIVERSITY CERTIFICATION
95The applicants submit, and I accept, that the zoning of the Land as Public Recreation - Regional under the SEPP in 2006 had two important effects:
(a)the Land was not considered as part of the later MPIP precinct planning process. This is supported by the planners' joint report; and
(b)the Land was not considered for the conferral of later biodiversity certification under the TSC Act. This is supported by the ecologists' joint report.
96The applicants submit that if the Land had been so considered, then by the acquisition date it would have received biodiversity certification, been zoned Urban Capable under the SEPP, been within the draft MPIP and designated as Industrial - the same as MPIP areas on the eastern side of South Street. Alternatively, it would have been designated Residential.
97The respondent submits to the contrary because of the ecological attributes of the Land.
98Thus, there are three questions. As at the acquisition date:
(a)what was the Land's underlying zoning?
(b)would the Land have been within the draft MPIP and designated industrial?
(c)would biodiversity certification have been conferred upon the Land?
99As the answers to all three questions hinge on ecological features of the Land, it is convenient to consider them together.
100The applicants, supported by the opinion of their planner Mr Rhodes, submit that the underlying zoning was Urban Capable under the SEPP, with the final zoning industrial or residential under the MPIP precinct planning process. In forming that opinion, Mr Rhodes took into account the approach taken to other areas within the Growth Centres, including the MPIP, also containing significant vegetation. Like the Land, they were to be zoned Landscape and Rural Lifestyle and then, when that zoning was abandoned, were zoned Urban Capable. In that regard, he considered that there would have been potential for the Land to be zoned industrial or residential with vegetation removed under an offset arrangement as has occurred with other land containing significant vegetation within the Growth Centres, including in the MPIP. In cross-examination, Mr Rhodes said he did not think it could be zoned without biodiversity certification, but in re-examination he clarified that he was there speaking only about the back two thirds.
101The respondent, supported by the opinion of its planner, Mr McKenzie, submits that the underlying zoning was Environmental Conservation under the SEPP. Mr McKenzie's main reasons were that the vegetation on the Land included threatened or endangered ecological communities; those communities were connected to the very large area to the west also containing endangered ecological communities; the potential for the Land to contribute to the conservation of the biodiversity in the North West Growth Centre; and the desire of the Minister for Planning to obtain biodiversity conservation of as much land as possible in the North West Growth Centre.
102The applicants submit there is nothing in any materials that provide justification for the Public Recreation - Regional Zone because of the ecological significance of the Land. To the contrary, the applicants submit, if it had such significance it should have been zoned Environmental Conservation. It was not. The applicants submit that the Environmental Conservation having been an option at the time the Land was zoned, it is a nonsense to suggest that if the Public Recreation - Regional Zone is ignored it is replaced with an Environmental Conservation zone: a decision to give it that zone had already been made. I do not agree. In my view, the decision not to give the Land an Environmental Conservation zoning is not conclusive.
103Mr Fanning and Dr Robertson agreed that the Land was not included in the biodiversity certification process for the MPIP because it had already been zoned in 2006 Public Recreation - Regional by the SEPP. Dr Robertson disagreed with Mr Fanning that had the Land been included within the biodiversity certification process for the MPIP, the whole of it could have been cleared for industrial or residential purposes.
104In the opinion of the applicants' ecologist, Mr Fanning, without biodiversity certification it was most likely that consent could be obtained for development of only the eastern part, comprising approximately 35%, of the Land. He concluded that that part could reasonably be considered developable because of levels of degradation and modification of the plant communities thereon the Land. He considered that to develop that part would (without biodiversity conservation) require dedication of the balance of the Land for biodiversity conservation purposes. He held the same view in relation to the similar adjacent lots.
105In Mr Fanning's opinion:
(a)conservation of the Land is not necessary for the viability of the Airservices land (to the immediate west) as a significant conservation reserve, and therefore that connectivity would not have been a significant constraint to biodiversity certification of the Land;
(b)had the Land been included within the biodiversity certification process for the MPIP, the whole of the Land could have been cleared for industrial or perhaps residential purposes and offset, just as other patches of endangered ecological communities of a similar size within the MPIP had been so treated; and
(c)the Land could have been part of the biodiversity certified lands in the MPIP.
106The view of the respondent's ecologist, Dr Robertson, expressed in reports, was that a maximum of 1.2 to 2 hectares fronting South Street is potentially developable and that the residue would need to be retained and restored for permanent conservation to balance the losses associated with development. In oral evidence he appeared to indicated that only the cleared area in the eastern part (about one hectare) was developable. In relation to EECs, he attached importance to the connectivity of the Land to the Airservices land to the west.
107There are EECs on the Land. However within the MPIP there are large areas that are similarly constrained yet are not zoned Environmental Conservation (nor Public Recreation - Regional) and have the benefit of biodiversity certification.
108Under condition 14 of the biodiversity certification order a further detailed assessment had to be undertaken of three relatively small areas adjoining or proximate to the Airservices site marked in blue hatching on the biodiversity certification maps. Condition 15 says that this assessment must examine whether the areas meet the criteria specified in Schedule 3 to determine whether they should be protected.
109Assessment of two of those areas, called the North West Remnant and the South West Remnant, was carried out by Eco Logical in its May 2009 report. They did not meet the specified criteria but were nevertheless protected by including them in an Environmental Conservation Zone.
110Mr Fanning was unable to follow the logic of the zoning of the North West and South West Remnants when the same authority had facilitated the destruction of tens upon tens of hectares of EECs in larger patches and better condition than those two areas. There is force in that observation.
111It was put to the parties' ecologists that applying the Schedule 3 criteria to the Land it too would have been zoned Environmental Conservation. Mr Fanning considered that the western two thirds of the Land, which met all of the criteria, would have been zoned that way but that the eastern one third, which did not, would likely have been zoned for development purposes. Dr Robertson considered that the Land except for its cleared area would have been zoned in that way.
112Reference was made in evidence to a triangular patch to the south of the Land on the western side of South Street which, although substantially cleared, was zoned Public Recreation - Regional. I think that is explicable in terms of boundary smoothing. It sits between the Airservices land and an area for emergency overflow of water from the large storage detention basin to be constructed to its south-east. Mr Fanning did not consider that it bore upon the validity of zoning of the eastern part of the Land. I tend to agree.
113The respondent's ecologist, Dr Robertson, was asked to assess land at Shanes Park contiguous with the south-west corner of the Airservices land against the same Schedule 3 criteria in the biodiversity certification order. That land met the criteria. Nevertheless it was zoned Urban and has the benefit of biodiversity certification.
114Mr Fanning considered that, but for its zoning, the boundary of the Public Recreation - Regional Zone for the Land would have been moved westward, together with the adjacent lots, to achieve a straight line boundary. Dr Robertson appeared to consider that only the cleared portion of the Land could be dealt with in that way.
115The ecologists' evidence was that the Land met most of the criteria in Schedule 3.
116Mr Fanning was asked what he believed, having regard to the known facts, would have been the zoning of the Land had it not been for the Public Recreation - Regional Zone. His answer was that there was a high probability of being able to persuade the authority that an appropriate zoning for the front (eastern) part of the Land would be for development purposes in exchange for the quid pro quo being the balance of the land being rehabilitated and dedicated to conservation purposes. He thought that an industrial purpose made sense but it could also have been residential. Logically, he thought, it was not inappropriate to remove highly degraded to degraded vegetation on the eastern part of the Land in exchange for the rehabilitation, maintenance and dedication of the balance. Dr Robertson thought that one logical outcome would be to have development to the east of South Street and conservation to the west of it. I consider that one difficulty with his view is that there is already MPIP land zoned industrial and residential on the western side of South Street to the south and to the north of the Land. In later oral evidence, Dr Robertson said he thought it likely that the Land would have gone into a conservation zone. I am inclined to think that should be read subject to his earlier evidence which appeared to indicate that at least the existing cleared area could be zoned for development.
117Mr Robert Black, a senior officer at the Department of Planning, gave evidence for the respondent. He has held senior roles within both the Department of Planning and the Growth Centres Commission. He was not, however, directly responsible for the determination of the boundaries of the Growth Centres nor the actual zonings of land as set out in the Growth Centres SEPP when it was first made in 2006. His role at the Growth Centres Commission required him to consider development proposals for industrial precincts, including reviewing the proposed boundaries of the MPIP, and recommending changes.
118Mr Black deposed that, with few exceptions, the Department fixed precinct boundaries by reference to man-made or natural features, such as proposed road reservations, existing roads and creeks. He said that it does not often use cadastral boundaries when fixing precinct boundaries. He said that he would be very unlikely to recommend fixing the western boundary of the MPIP at the western boundary of the Land (and, by extension, to the lots to the north and south of the Land). Instead, he would have recommended the Department fix the boundary at South Street, being a typical kind of boundary marker adopted by the Department. Assuming the existing zoning is to be disregarded, he would have formed the view that the appropriate zone to which to rezone the Land would have been the E2 Environmental Conservation zone. He considered that the Department would have recommended that zoning.
119Mr Black's evidence does not in my view sit comfortably with the fact that:
(a)the western boundary of the MPIP extends west of South Street in areas proximate to, and both south and north of, the Land and was zoned Urban Capable under the SEPP; and
(b)those areas were later zoned Industrial or Residential.
120The respondent contends that all patches of EECs that have connectivity to a larger patch of higher ecological value in the North West Growth Centre have been zoned E2 - Environmental Conservation under the Growth Centres SEPP, post acquisition. I think, as the applicants submit, that is not entirely correct. At the eastern edge of the MPIP there are areas of high ecological constraint that appear to adjoin land ultimately conserved (referred to at the hearing as "the teeth of the comb") which have been designated Urban Capable and have the benefit of biodiversity certification.
121Plans in evidence that were put to the ecologists show that within the MPIP, areas received biodiversity certification and were designated Urban Capable even though in the Eco Logical 2009 report they were identified as Priority 1 vegetation for retention, mapped as having a high ecological constraint category, and identified as high constraint. Thus, identification of the Land as having those characteristics would not necessarily have prevented the Land from being within the MPIP and having biodiversity certification.
122I accept the evidence of Mr Fanning that conservation of the Land is not necessary for the viability of the Airservices land.
123After weighing the evidence, which points in different directions, and the submissions, my conclusions are as follows:
(a)because of its existing zoning, the Land was not considered for biodiversity certification and MPIP precinct planning;
(b)except for its existing zoning, about one third of the Land fronting South Street probably would have received biodiversity certification, been zoned Urban Capable under the SEPP and later Industrial. The same probably would apply to adjoining lots. The remaining two thirds probably would have received an Environmental Conservation zoning. Matters influencing these conclusions include the following:
(i)that one third of the Land includes a large cleared area and vegetation which is degraded compared with most of the remainder;
(ii)at the acquisition date the Urban Capable zoned areas in the MPIP with biodiversity certification extended west of South Street - both north and south of, and proximate to, the Land. The part to the north came to be zoned Residential and the part to the south Industrial;
(iii)other land adjacent to the south west corner of the Airservices land met the conservation order schedule 3 criteria yet was zoned Urban and received biodiversity certification; and
(iv)my conclusion as to the one third is consistent with the view of the applicants' ecologist, and is not that far away from the view expressed in reports by the respondent's ecologist that up to two hectares on the eastern side of the Land was developable (although in oral evidence he appeared to restrict it to the cleared area). They both agreed in oral evidence that the remainder would have a conservation zoning.
124There is little in the evidence to choose between an industrial zoning or a residential zoning for the eastern one third of the Land. On balance, I consider that it probably would have been designated industrial. My reasoning may be understood by reference to the SEPP zoning map copied in annexure "B" to this judgment. The Land (and the adjoining lots) face the industrial zoned areas in the MPIP on the opposite side of South Street. So too does the industrial zoned lot in the MPIP on the western side of South Street, just south of the Land. The western boundary of the eastern one third of the Land and adjoining lots roughly corresponds with a notional northern extension of the western boundary of that industrial zoned lot. The residential zoned lots in the MPIP on the western side of South Street and to the north of the Land almost entirely do not face the industrial zoned areas. They face areas zoned as Business Park which constitute a buffer between the industrial zoned areas and other residential zoned areas to the north. Overall, it seems to me that an industrial zoning for the eastern one third of the Land would be more harmonious than a residential zoning with the overall zonings in the MPIP.