McCloy Project Management Pty Ltd v Lismore City Council

Land and Environment Court (NSW)|2023-05-16

JUDGMENT

COMMISSIONER: The Eastwood Estate is a new staged residential development located off Invercauld Road in Goonellabah, to the east of Lismore. This appeal concerns the proposed subdivision of the lands zoned R1 Residential that form the remaining stage of the Eastwood Estate residential development. It also includes the creation of an environmental management lot across on lands zone C3 Environmental Management located adjacent to Gundurimba Creek.
Like much of Lismore, the Eastwood Estate, including the Subject Site at 226 Invercauld Road, Goonellabah (also identified as Lot 103 in DP 709070), contains vegetation that includes various preferred koala food trees (KFTs) and has been documented as being used by koalas, including by breeding females.
Indeed, the entrance to the already completed stages of the Eastwood Estate development is marked by a piece of public art (see the photo below taken from the Applicant's closing submissions) acknowledging the presence of koalas in the vicinity of, and indeed within, the Estate, including on the land that is the Subject Site in this appeal.
The developer of the Eastwood Estate, McCloy Project Management Pty Ltd (the Applicant), has now appealed the refusal by Lismore City Council (the Respondent) of its development application, No. 2.2021.262.1, made with owner's consent, which seeks to complete the Eastwood Estate development by creating 196 residential lots.
The application also includes the creation of one residual open space lot with associated roads, bulk earthworks, essential services (water, sewer, power and telecommunications), stormwater management facilities, landscaping and environmental rehabilitation.
The proposed residential subdivision and creation of an environmental management lot on lands zoned C3 (and formerly zoned E3), together with the associated works identified above (at [5]) comprise the 'Proposed Development' in these proceedings.
The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

The Proposed Development

The Applicant's Proposed Development would be delivered in eight stages, during which the following works would be undertaken: 1. Stage 1: construction of 20 lots, including associated services and retaining walls, and the temporary stormwater detention basin, noting that: 1. the temporary detention basin is to be positioned in the location of the final basin; and 2. the temporary basin is to act as a sedimentation basin until such time as the final biofiltration layer is installed during Stage 8; 1. Stage 2: construction of 19 lots, including associated services and retaining walls, a sewage pumping station, and with this stage draining to the temporary sedimentation basin; 2. Stage 3: construction of 21 lots, including associated services and retaining walls, with the stage to drain to the temporary sedimentation basin; 3. Stage 4: construction of 20 lots, including associated services and retaining walls as well as completion of the permanent detention basin to its final design configuration, but excluding installation of the proposed biofiltration layer; 4. Stage 5: construction of 20 lots, including associated services and retaining walls; 5. Stage 6: construction of 35 lots, including associated services and retaining walls; 6. Stage 7: construction of 26 lots, including associated services and retaining walls; 7. Stage 8; construction of 35 lots, including associated services and retaining walls as well as required upgrades to Invercauld Road, and sediment removal from the detention basin followed by installation of the biofiltration layer under direction from the Respondent.
This staging of the Proposed Development is illustrated in the following figure, that formed part of the Applicant's Exhibit G in the proceedings.

The Subject Site and its context

The Subject Site: 1. Fronts Invercauld Road to the west and is adjoined to the north by the existing Eastwood residential development, and to the east (across Gundurimba Creek), south and west by low intensity cattle grazing land and rural residential dwellings; 2. Has existing access off Invercauld Road, with an additional access proposed to be created from the already completed stages of the Eastwood residential development; 3. Is largely zoned R1 General Residential and includes land previously zoned E3 and now zoned C3 Environmental Management pursuant to the provisions of cl 2.3 of Lismore Local Environmental Plan 2012 (LLEP); 4. Has historically been used for the purposes of cattle grazing, with a dwelling and associated infrastructure located in the north-western corner of the site; and 5. Includes areas in which koalas have been sighted, including records of female koalas with young.
An extract from the Land Zoning Map with the Subject Site outlined in red is provided below. The area of the Subject Site currently zoned C3 is illustrated below as being zoned E3, which was its previous zoning:

Notifications and objector submissions

Pursuant to the provisions of the Lismore Community Engagement Strategy 2019, the Applicant's development application (DA No. 2.2021.262.1) was notified between 2 June and 23 July 2021. Twenty-one (21) submissions were received in response to that notification.
Issues identified by the Respondent as having been raised in the submissions included potential impacts in relation to: 1. Aboriginal cultural heritage; 2. Ecological values including those concerning koalas and their habitat, and vegetation; 3. Traffic in the locality; 4. Construction works; and 5. The quality and quantity of stormwater flows in relation to Gundurimba Creek.
In addition, during the hearing the Court received further submissions from three objectors as follows: 1. Ms Ina Egermann, from Friends of the Koala, who expressed concerns in relation to the potential impacts of the Proposed Development on koalas and koala habitat, including in relation to KFTs and the impact of traffic generated by the Proposed Development; 2. Ms Ros Irwin, a resident of Lismore and former mayor of Lismore, who expressed concerns in relation to the Proposed Development's potential impacts on wildlife and wildlife habitat, the character of the area around the Subject Site, and in relation to proposed tree removal. 3. Mr Alan Oshlack, of the Indigenous Justice Advocacy Network, who expressed concerns in relation to the potential impacts of the Proposed Development on Aboriginal cultural heritage, including in relation to what he said was a significant scar tree.

The Applicant seeks to amend its development application

During the hearing, the Applicant sought leave to rely on further documentation and amended plans, including: 1. Further information requiring review by the Respondent's stormwater engineering expert, Ms Collier, in relation to the Applicant's proposed stormwater management and its performance concerning water quality and quantity outcomes; 2. An expert report prepared by the Applicant's expert ecologist concerning impacts of the Proposed Development on the threatened plant Arthraxon hispidus, also known as the hairy joint grass (HJG); 3. An addendum to the Applicant's Biodiversity Development Assessment Report (BDAR) in relation to potential HJG impacts and offsets; 4. An amended cut and fill plan; and 5. An amended staging plan.
The Respondent did not oppose the Applicant's requests to rely on these further plans and documents, and that leave was granted. The Respondent also invited the Court to make an order requiring that the Applicant pay its costs in dealing with the Applicant's amended documents, pursuant to the provisions of s 8.15(3) of the EP&A Act, at the point at which the Court made final orders to dispose of the appeal.
Further, at the conclusion of the third day of the hearing, the Applicant was granted leave for its expert ecologist, Dr David Robertson, to prepare an addendum to its Biodiversity Development Assessment Report (BDAR) in relation to a matter that arose during the hearing concerning the potential adverse impact on HJG plants of proposed environmental restoration works in the C3 zoned lands on the Subject Site.

Certain contentions resolved

At the commencement of the hearing, the Respondent: 1. Noted that certain contentions concerning the intrusion of aspects of the Proposed Development into that part of the Subject Site zoned C3 Environmental Management had been resolved as a consequence of the Applicant's amended plans, which removed areas of asset protection zones (APZs) and the Applicant's elements of the proposed stormwater detention basin from the C3 zoned lands; and 2. Confirmed that the Applicant's amended plans complied with the minimum lot size provisions of cl 4.1 of LLEP which required a minimum lot size of 400m2 in the R1 zoned parts of the Subject Site.
However, the balance of the contentions in the appeal remained, and these broadly concerned matters related to: 1. biodiversity issues, including in relation to whether the yield and design of the proposed subdivision did not sufficiently accommodate the retention of trees including KFTs; 2. traffic issues, including in relation to whether the unfunded upgrade to the intersection of Invercauld Road and Bruxner Highway, which both Parties agreed was required to facilitate the delivery of stages 4-8 of the Proposed Development, represented a precondition to the grant of consent under the provisions of cl 6.9 of LLEP requiring suitable vehicular access; 3. stormwater and flooding, including in relation to satisfying the objectives of the C3 zoned parts of the Subject Site; 4. geotechnical issues, including in relation to the location and functionality of certain infiltration pits close to the C3 lands and whether these gave rise to slope and stability issues; and 5. certain planning issues concerning the provision of parkland spaces within the Proposed Development.

Remaining contentions

The Respondent maintained that the Applicant's Proposed Development, as amended, and as assessed by the Applicant, did not satisfy the provisions of s 4.15(1) of the EP&A Act and, as a consequence, should not be approved.
The Respondent's basis for its submission was that the environmental impacts of the Proposed Development were not acceptable for the following jurisdictional and merits contentions:

Jurisdictional contentions 1. the Proposed Development was likely to have serious and irreversible impacts on biodiversity value. 2. the Applicant's BDAR did not satisfy the statutory requirements for such a document under the Biodiversity Conservation Act 2016 (the BC Act) and the Biodiversity Assessment Method (BAM). 3. the Applicant had not satisfactorily designed the Proposed Development to avoid and minimise impacts on biodiversity in relation to KFTs and koala habitat, or that its assessed impacts on KFTs and koala habitat could not be relied upon. 4. the Proposed Development did not provide suitable vehicular access as required under cl 6.9 of LLEP (see below at [25(2)]).

Merits considerations: 1. The Court could not be satisfied that the Applicant's proposals for stormwater drainage were based on sound engineering analysis and whether they had avoided and minimised impacts on KFTs and koala habitat; 2. The Court could not be satisfied that the impacts of certain of the Applicant's proposed infiltration pits, including geotechnical impacts, particularly in relation to the C3 zoned lands, were acceptable; 3. The Applicant's subdivision design was not acceptable in relation to the amenity of future residents and could be improved through the provision of two parks rather than the one proposed within the Proposed Development.

The Court was assisted in its considerations of these contentions by the evidence, including the joint reporting, of the Parties' experts as follows: 1. The Parties' expert ecologists, Dr David Robertson, for the Applicant, and Dr Chris McLean, for the Respondent. 2. The Parties' expert planners, Ms Julie Horder, for the Applicant, and Mr Gerard Turrisi, for the Respondent. 3. The Parties' traffic experts, Mr Tim Rogers, for the Applicant, and Mr Ben Midgely, for the Respondent. 4. The Parties' stormwater experts, Mr Drew Bewsher, for the Applicant, and Ms Louise Collier, for the Respondent. 5. The Parties' expert arborists, Mr Peter Gray for the Applicant and Mr Greg Tesoriero, for the Respondent. 6. The Parties' expert geotechnical engineers, Mr Peter Elkington, for the Applicant, and Mr Jeremy Toh, for the Respondent.

Environmental Planning and Assessment Act 1979

Development on the Subject Site is subject to the provisions of the EP&A Act, and the following provisions of that Act are of relevance in this appeal: 1. Section 4.15(1) of the EP&A Act provides that: (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 1. Section 4.15(3A) of the EP&A Act which provides that: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.

Lismore Local Environmental Plan 2012

The following provisions of LLEP are of relevance to the principal contentions in this appeal: 1. Clause 2.3 concerning zone objectives and land use table, and in relation to which; 1. Subclause 2.3(2) requires that 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; and 2. The Subject Site is zoned R1 General Residential and C3 Environmental Management, the objectives of which are: 1. In relation to the land zoned R1: • 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 ensure that new development is compatible with the character, and preserves the amenity, of each residential area. 1. In relation to the land zoned C3: • To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values. • To provide for a limited range of development that does not have an adverse effect on those values. • To encourage the retention of wildlife habitats and associated vegetation and wildlife corridors. 1. Clause 4.1, under which the minimum lot size for subdivision of lands zoned R1 is 400m2; 2. Clause 6.9 in relation to essential services, which provides; Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required - (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable vehicular access.

Biodiversity Conservation Act 2016

The following provisions of the BC Act are of relevance to the current appeal: 1. Section 1.3, which provides the purpose of the Act, and which includes, inter alia: 1.3 The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular - …. (k) to establish a framework to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity, … 1. Section 1.5, which confirms the meanings of biodiversity and biodiversity values for the purposes of the BC Act, as follows: (1) For the purposes of this Act, biodiversity is the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems. (2) For the purposes of this Act, biodiversity values are the following biodiversity values - (a) vegetation integrity - being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state, (b) habitat suitability - being the degree to which the habitat needs of threatened species are present at a particular site, (c) biodiversity values, or biodiversity-related values, prescribed by the regulations. 1. Part 6, in relation to the biodiversity offsets scheme, and which includes the following provisions of relevance to the current appeal: 1. Section 6.5, concerning serious and irreversible impacts of a proposed development which provides: (1) The determination of serious and irreversible impacts on biodiversity values for the purposes of the biodiversity offsets scheme is to be made in accordance with principles prescribed by the regulations. (2) The Environment Agency Head may provide guidance on the determination of any such serious and irreversible impacts, and for that purpose may publish, from time to time, criteria to assist in the application of those principles and lists of potential serious and irreversible impacts. 1. Part 7, which concerns biodiversity assessment and approvals under the EP&A Act which include the following provisions of relevance to the current appeal: 1. subsections 7.2(1) and 7.2(2) which define the circumstances in which a development or activity is "likely to significantly affect threatened species", and which provides as follows: "(1) For the purposes of this Part, development or an activity is likely to significantly affect threatened species if - (a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or (b) the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or (c) it is carried out in a declared area of outstanding biodiversity value. (2) To avoid doubt, subsection (1)(b) does not apply to development that is an activity subject to environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979. 1. section 7.3 which provides the test for determining whether proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats, and which provides as follows: (1) The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats - (a) in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction, (b) in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity - (i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or (ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction, (c) in relation to the habitat of a threatened species or ecological community - (i) the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and (ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality, (d) whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly), (e) whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process. (2) The Minister may, by order published in the Gazette with the concurrence of the Minister for Planning, issue guidelines relating to the determination of whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. Any such guidelines may include consideration of the implementation of strategies under the Biodiversity Conservation Program. 1. section 7.5, which concerns the relationship between the BC Act and "the Planning Act", being the EP&A Act, and which provides that: (1) This Part prevails to the extent of any inconsistency between this Part and the Environmental Planning and Assessment Act 1979 (or any instrument under that Act). (2) A reference in the Environmental Planning and Assessment Act 1979 or any other Act or in any statutory instrument or document to the Environmental Planning and Assessment Act 1979 (whether an express or implied reference) is a reference to that Act as applying in accordance with this Part. 1. section 7.7 which concerns biodiversity assessment for development under Part 4 of the EP&A Act (other than State significant development or complying development), and which provides: (1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979, except - (a) an application for development consent for State significant development, or (b) an application for a complying development certificate. (2) If the proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report. 1. section 7.13, which concerns development other than State significant development or infrastructure, and which provides: (1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 that is required under Division 2 to be accompanied by a biodiversity development assessment report, except - (a) an application for development consent for State significant development, or (b) an application for a complying development certificate. (2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values. (3) If the consent authority decides to grant consent and the biodiversity offsets scheme applies to the proposed development, the conditions of the consent must require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the report (subject to subsection (4)). The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent to avoid or minimise the impact on biodiversity values of the proposed development (being measures on which the report was based). Note - Division 6 of Part 6 enables a person who is required under this section to retire biodiversity credits to make a payment instead to the Biodiversity Conservation Fund of the value of the credits in accordance with the offsets payment calculator. (4) The consent authority may reduce or increase the number of biodiversity credits that would otherwise be required to be retired if the consent authority determines that the reduction or increase is justified having regard to the environmental, social and economic impacts of the proposed development. The consent authority must give reasons for a decision to reduce or increase the number of biodiversity credits. (5) A condition to retire biodiversity credits is required to be complied with before any development is carried out that would impact on biodiversity values. However, a consent to a concept development application may provide for a corresponding staged retirement of biodiversity credits before each stage of development is carried out and without the need for a further biodiversity development assessment report in connection with development applications for the subsequent stages of the development. (6) This section does not operate to limit the matters that a consent authority may take into consideration - (a) in relation to the impact of proposed development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts, or (b) in deciding whether to reduce or increase the number of biodiversity credits to be retired. (7) If a consent authority fails to include a condition relating to the retirement of biodiversity credits required by this section (or fails to give reasons for a decision to reduce or increase the number of biodiversity credits), the Environment Agency Head may impose or vary that condition in accordance with this section in the same manner used by the consent authority in granting the development consent. 1. section 7.16, which concerns a proposed development that has a serious and irreversible impact on biodiversity values, and which provides: (1) In this section, serious and irreversible impacts on biodiversity values of proposed development or activity means serious and irreversible impacts on biodiversity values as determined under section 6.5 that would remain after the measures proposed to be taken to avoid or minimise the impact on biodiversity values of the proposed development or activity. (2) The consent authority must refuse to grant consent under Part 4 of the Environmental Planning and Assessment Act 1979, in the case of an application for development consent to which this Division applies (other than for State significant development), if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values. (3) If the Minister for Planning is of the opinion that proposed State significant development or State significant infrastructure that is the subject of an application to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the Minister - (a) is required to take those impacts into consideration, and (b) is required to determine whether there are any additional and appropriate measures that will minimise those impacts if consent or approval is to be granted. (4) If the determining authority is of the opinion that the proposed activity to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the determining authority - (a) is required to take those impacts into consideration, and (b) is required to determine whether there are any additional and appropriate measures that will minimise those impacts if the activity is to be carried out or approved.

Biodiversity Conservation Regulation 2017

The Biodiversity Conservation Regulation 2017 (the BC Regulation) is of particular relevance in this appeal as the provisions of cl 6.7 of the BC Regulation confirm the principles applicable to the determination of "serious and irreversible impacts on biodiversity values" as referred to in s 6.5 of the BC Act (see above at [26(3)(a)]), and which provides as follows: (1) This clause applies for the purposes of determining whether an impact on diversity values is a serious and irreversible impact for the purposes of the biodiversity offsets scheme. (2) An impact is to be regarded as serious and irreversible if it is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct because - (a) it will cause a further decline of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to be in a rapid rate of decline, or (b) it will further reduce the population size of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very small population size, or (c) it is an impact on the habitat of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very limited geographic distribution, or (d) the impacted species or ecological community is unlikely to respond to measures to improve its habitat and vegetation integrity and therefore its members are not replaceable. (3) For the purpose of this clause, a decline of a species or ecological community is a continuing or projected decline in - (a) an index of abundance appropriate to the taxon, or (b) the geographic distribution and habitat quality of the species or ecological community. (4) If the guidance published by the Environment Agency Head under section 6.5(2) of the Act is changed, a biodiversity assessment report may, during the period of 90 days after the guidance was changed, be prepared on the basis of the guidance in force before the change, but only if the report states that it has been prepared on that basis.

State Environmental Planning Policy (Resilience and Hazards) 2021

Development on the Subject Site is also subject to the provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 in relation to contamination, and which relevantly in relation to the current appeal provides as follows: (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. …

State Environmental Planning Policy (Biodiversity and Conservation) 2021

The provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), notably those in Chs 3 and 4 concerning koala habitat protection, which incorporate the provisions of State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020) and State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP 2021), respectively, apply to development on the Subject Site.
It was common ground at the hearing that the provisions of Ch 4 of SEPP B&C apply to the Subject Site, which is within the Lismore local government area (LGA) which is identified in Sch 2 of the SEPP as land to which Ch 4 of SEPP B&C applies.
More specifically: 1. The provisions of s 4.8 require that: (1) This section applies to land to which this Chapter applies and to which an approved koala plan of management applies. (2) The council's determination of the development application must be consistent with the approved koala plan of management that applies to the land. 1. The provisions of s 4.17 confirm the status of documents that are ta be koala plans of management, as follows: (1) A plan of management approved under a former Koala SEPP in relation to the whole of a local government area or a part of a local government area and in force immediately before this Chapter is taken to be an approved koala plan of management. (2) The following documents published on the NSW planning portal are taken to be approved koala plans of management and may be renamed accordingly - (a) Byron Shire Draft koala plan of management, (b) Tweed Shire Draft koala plan of management. (3) An approved koala plan of management under this section applies to the land specified in the koala plan of management and accordingly section 4.8 extends to apply to that land.

Comprehensive Koala Plan of Management for south-east Lismore

The provisions of s 4.8(2) of SEPP B&C (see above at ([31(1)]) require that determination of the Applicant's development application in this appeal must be consistent with the approved koala plan of management that applies to the Subject Site.
The Comprehensive Koala Plan of Management for south-east Lismore 2011 (the CKPoM) is a koala plan of management for the purposes of Ch 4 of SEPP B&C as, consistent with the provisions of s 4.17 of SEPP B&C (see above at [31(2)]), it is a plan of management approved under a former Koala SEPP in relation to part of the Lismore LGA and in force immediately before Ch 4 commenced.
The CKPoM applies to lands in south east Lismore, including the Subject Site, and seeks, inter alia, to ensure that activities threatening koalas and their habitat, within the koala planning area (which includes the Subject Site) in the south-east of the Lismore LGA are avoided, minimised, mitigated and/or compensated.
The CKPoM includes the following objectives (at paragraph 1.2): "1. identify and list the preferred koala food tree species likely to be found in the Lismore LGA and to map preferred koala habitat in the koala planning area; 2. minimise the effect of those processes within Council's sphere of control and influence which threaten koalas and their habitat; 3. ensure that there is no net loss of preferred or core koala habitat in the area and allow for safe koala movement across the landscape; 4. create, manage and/or restore koala habitat linkages and corridors; 5. provide a transparent and consistent assessment pathway and criteria for the processing of development applications, as well as present guidelines for: koala habitat assessment; food tree and koala habitat retention; compensation for the loss of food trees and koala habitat. 6. promote koalas as an asset for Lismore's economic development and tourism"
The CKPoM also includes the following strategies to ensure that there is no net loss of food trees and koala habitat as part of its preferred KFTs and habitat retention guidelines (at paragraph 4.4): "a. Council may grant development consent only if it is satisfied that: i. development activity results in no net loss of food trees and/or koala habitat; ii. the development is located, designed, constructed, and managed to avoid adverse impacts on food trees and/or koala habitat; b. Avoidance, minimisation and mitigation impacts are the three strategies employed to reduce the scale and/or intensity of any adverse impact of development activities on koalas and their habitat; c. The three strategies identified in (1a) above must be applied for all development activities and at all stages of the proposed development for both small and large impact development; d. Council may grant approval for clearing of food trees or koala habitat only if it is satisfied that: i. the intended measures to avoid, minimise and mitigate likely and potential impacts of the development activity are documented and presented with the DA; ii. sound and logical reasons are provided as to why the retention of food trees or koala habitat is not feasible and clearing of food trees is proposed as a last resort."

Lismore Development Control Plan 2013

The Proposed Development is subject to the provisions of Lismore Development Control Plan 2013 (LDCP), and the provisions of the following parts of LDCP are of particular relevance in this appeal: 1. The provisions of Chapter 5A of LDCP in relation to urban residential development, including: 1. The principles of section 1.2 which provide subdivision development principles including: 1. Principle 6 in relation to environmental management that requires, inter alia, that the development will protect and enhance the natural and cultural values in the area; and 2. Principle 8 in relation to water sensitive design that requires that the development will incorporate water sensitive urban design principles to protect the natural water cycle, support healthy ecosystems and maintain water quality; 1. The provisions of section 4.7 concerning essential services including stormwater management, and including performance criteria P28 which states that the provision of stormwater management measures will, inter alia, deliver high standards of water quality to receiving waters, and protect natural watercourses. 1. The provisions Chapter 22 in relation to water sensitive design, including the suggested solutions in section 22.5 and the water sensitive design measures in section 22.6.

Remaining contentions resolved

The remaining contentions in the appeal were identified above (at [21]) and resolution of those contentions requires the Court to consider the following principal questions: 1. is the Proposed Development likely to have serious and irreversible impacts on biodiversity values? 2. has the Applicant provided a BDAR that satisfies the statutory requirements for such a document under the provisions of s 7.13(2) of the BC Act and the BC Regulation? 3. does the Proposed Development provide suitable vehicular access as required under cl 6.9 of LLEP? 4. are the Applicant's proposals for stormwater management satisfactory in relation to the relevant statutory requirements and whether they are, as a consequence, acceptable?
I will address each of these questions ad seriatum.
In doing so, I note for the record that during the hearing the Respondent had objected to the tender of an annexure (referred at the hearing as Appendix C) to the joint report of the Parties' ecology experts. The Appendix C document was a letter from a Mr Havillah of GeoLINK in relation to vegetation assessment concerning the Applicant's proposed installation of stormwater infiltration pits, and following my consideration of the Parties' submissions concerning the respondent's objection, I ruled that the Havillah letter be removed from the expert ecologists' joint report because: 1. while the letter had been requested by the Applicant's expert ecologist, Dr Robertson, in good faith, in order to cover a gap that he had identified in the Applicant's assessment of potential impacts arising from its proposed infiltration pits, it was, in my judgment, expert evidence that had not been adduced under the direction of the Court; 2. the potential evidence provided in the letter, was also evidence provided by an expert who was not an expert working under the direction of the Court, and that expert was unavailable to the Parties during the proceedings for the purposes of cross-examination.

Is the Proposed Development likely to have serious and irreversible impacts on biodiversity values?

The provisions of s 7.16(2) of the BC Act (see above at [26(4)(f)]) require that the consent authority, or the Court on appeal, must refuse to grant consent under Pt 4 of the EP&A Act in the case of an application for development consent to which Div 4 of Pt 7 applies (other than for State significant development), if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.
The definition of serious and irreversible impacts is provided within cl 6.7(2) of the BC Regulation (see above at [27]), which states that: (2) An impact is to be regarded as serious and irreversible if it is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct because - (a) it will cause a further decline of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to be in a rapid rate of decline, or (b) it will further reduce the population size of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very small population size, or (c) it is an impact on the habitat of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very limited geographic distribution, or (d) the impacted species or ecological community is unlikely to respond to measures to improve its habitat and vegetation integrity and therefore its members are not replaceable.
The biodiversity values to which the provisions of cl 7.16(2) refer are those in s 1.5 of the BC Act (see above at [26(2)]) and cl 1.4 of the BC Regulation (see below at [44]).
In terms of the BC Act, biodiversity values include vegetation integrity, habitat suitability and any other values identified in the BC Regulation.
Clause 1.4 of the BC Regulation identifies the following additional matters as being biodiversity values: … (a) threatened species abundance - being the occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site, (b) vegetation abundance - being the occurrence and abundance of vegetation at a particular site, (c) habitat connectivity - the degree to which a particular site connects different areas of habitat of threatened species to facilitate the movement of those species across their range, (d) threatened species movement - being the degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle, (e) flight path integrity - being the degree to which the flight paths of protected animals over a particular site are free from interference, (f) water sustainability - being the degree to which water quality, water bodies and hydrological processes sustain threatened species and threatened ecological communities at a particular site.
The focus of the considerations in relation to serious and irreversible impacts is, therefore, whether the Proposed Development is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct, as a consequence of impacts on biodiversity values.
The Respondent had contended that the Proposed Development was likely to have serious and irreversible impacts on two threatened species: 1. the koala, Phascolarctos cinereus, through the Applicant's proposed removal of KFTs and a potential increase in the risk of vehicle collision due to the increased use of Invercauld Rd which would provide the principal access route to and from the Prosed Development; and 2. The threatened plant species, Arthraxon hispidus, also known as the HJG.
The specific questions for resolution in this appeal are therefore whether the Proposed Development, as amended, is likely to contribute significantly to the risk of either the koala or the HJG becoming extinct as a consequence of the project's impacts on the biodiversity values identified above (at [44] and [45])?
The short answer to this question is that it is unlikely that the Proposed Development would have impacts on biodiversity values such that it may cause the extinction of either the koala or HJG because, in my assessment: 1. the Applicant's proposed removal of some 20 KFTs on the Subject Site, while undoubtedly likely to impact on the local population of koalas, is unlikely to lead to the extinction of this species, which, while an endangered species, remains present across a much broader area of NSW than the Subject Site, including in areas of Lismore to the west of the Subject Site; and 2. while the Proposed Development will have a significant impact on the local occurrence (that is the occurrence on the Subject Site) of the HJG, the HJG will remain widespread in its distribution in NSW, such that the Proposed Development is unlikely to contribute significantly to the risk of the HJG becoming extinct.

Has the Applicant provided a BDAR that satisfies the statutory requirements for such a document under the provisions of s 7.13(2) of the BC Act, and the BC Regulation?

The Proposed Development is subject to the provisions of Pt 7 of the BC Act (see above (at [26]) in relation to biodiversity assessment and approvals under the EP&A Act, and as required under s 1.7 of the EP&A Act. Those provisions of the BC Act include the provisions of s7.13(2) which requires that: (2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.
The Respondent had initially contended that: 1. The Applicant's BDAR had not considered the impact on HJG arising from proposals to restore the C3 lands to a vegetated state favourable to rainforest species; 2. The Applicant's BDAR, including its further considerations in relation to HJG contained in its BDAR addendum, had not adequately considered all feasible opportunities to avoid and minimise potential impacts of the Proposed Development, including in relation to HJG habitat; and 3. While the Applicant's BDAR had assessed the impact of the Proposed Development on KFTs, as identified by the Applicant (including the proposed removal of some 20 KFTs), the impacts on biodiversity values as identified by the Applicant, and as assessed in the BDAR, underestimated the actual impacts of the Proposed Development on KFTs.
Dealing with each of these considerations in turn: 1. during the hearing, the Applicant's expert ecologist, Dr Robertson, had conceded that the restoration of the C3 lands as proposed would, in fact, reduce the area of the C3 lands that would be suitable for HJG, including that it had not properly calculated the correct credits to be retired in relation to the reduction in HJG habitat; and 1. the Applicant had provided, without objection from the Respondent, and indeed with its agreement, an amended BDAR that had completed an assessment of potential impacts on threatened species and communities as identified by the Applicant, including in relation to HJG; 2. the Applicant's BDAR, including its supplementary consideration of impacts on HGJ, includes the calculation of biodiversity credits required for retirement to offset the Proposed Development's impacts on these species and communities as identified by the Applicant, such that if consent were granted, a condition of consent could be imposed to require the retirement of the calculated credits, as required under s 7.13(3) of the BC Act; 1. the Respondent's expert ecologist, Dr McLean, had stated in his response to the Applicant's amended BDAR and further input from Dr Robertson, that the BDAR had not considered all feasible opportunities to avoid and minimise the potential impacts of the Proposed Development, including in relation to HJG, and that more could have been done to preserve the numbers of this species on the Subject Site, but: 1. the requirements of the BAM, published by the NSW Department of Planning, Industry and Environment, are that the Applicant's BDAR must document: 1. the reasonable measures taken by the proponent to avoid or minimise clearing of native vegetation and threatened species habitat during proposal design; and 2. justify efforts to avoid or minimise impacts through design; and 1. the BAM does not, as suggested by Dr McLean, require that the Applicant consider all feasible (emphasis added) opportunities to avoid and minimise the potential impacts of the Proposed Development on HJG, just that it document and justify efforts to avoid or minimise impacts through design; 2. the Applicant's BDAR Addendum for HJG, prepared by Dr Robertson, with input from Geolink, does document, within its Attachment A, efforts by the Applicant to avoid or minimise impacts through design of the Proposed Development, and justifies these in terms the biology and conservation status of the HJG; 3. the Applicant's BDAR addendum in relation to HJG notes that, while it is likely that vegetation restoration works proposed within the C3 lands, including increased canopy cove and removal of cattle grazing, would reduce the distribution of HJG within the C3 lands, HJG would persist within parts of the C3 lands including along gully lines; 4. I note that the Applicant's final amended BDAR had also documented and justified efforts made to avoid and minimise potential impacts on koalas, including: 1. a reduction in the number of KFTs proposed for removal from 30 to 20 trees; 2. widened verges on some roads to facilitate movement of koalas through the Subject Site post development; 3. the provision of permeable fencing to facilitate koala movement through the Subject Site post development; 4. the prohibition of keeping of domestic dogs throughout the Proposed Development through the imposition of restrictions on land titles; 5. reduced traffic speeds on roads within the Proposed Development to reduce the risk of koala hits by vehicles; 1. Having considered the Applicant's BDAR, including its addendum concerning HJG, I am satisfied that the BDAR has addressed the requirements of the BAM that it should document and justify efforts to avoid or minimise impacts on biodiversity values, including in relation to HJG, through the design of the Proposed Development; 1. I have also considered the Applicant's BDAR in relation to its assessment of potential impacts on trees, including KFTs, and: 1. I have considered the evidence of the Parties' expert arborists, Mr Tesoreiro and Mr Gray, in relation to whether the trees proposed by the Applicant for retention can, and would, be retained under the design of the Proposed Development; 2. I note that the expert arborists: 1. have agreed that certain trees, identified as trees 17 and 26, can be retained within the Applicant's proposed design; and 2. notwithstanding the Applicant's provision of modified plans for earthworks, including proposed excavation works required for roads and footpaths, the expert arborists disagreed that a further 11 trees, all of which are KFTs to a greater or lesser extent, proposed for retention could be retained under the Proposed Development; 1. in their oral evidence, the expert arborists discussed their differing assessments on the likely retention of each of the 11 trees in relation to which they disagreed; and 1. while the experts often disagreed in relation to the quantative impact of the Proposed Development on the tree protection zones (TPZ) of each tree, the encroachments of works into the TPZs of trees was generally a major encroachment; 2. Mr Tesoreiro confirmed in his evidence that the Applicant's proposed design of sewers and footpaths, and related earthworks, would have such significant impacts on trees 68, 76, 77, 101, 102, 103, 104, 106, 107, 108 and 111, that those trees would not survive the intrusions into their TPZs and so could not be retained as part of the Proposed Development; 3. Mr Gray conceded that, in order for certain trees to be retained, such as trees 102 and 107, both of the species Eucalyptus tereticornis, and tree 111, a Corymbia intermedia, changes would be required to the location of the Applicant's proposed sewer network to support the retention of those trees. Mr Gray said that he understood that such changes could be made, but no plans were tendered by the Applicant to demonstrate that such changes could be achieved; 4. Mr Gray also noted that the design of footpaths, and required excavation, as illustrated within the Applicant's plans, would require amendment to ensure that impacts on the TPZs of trees 68, 76, 77 and 106 were avoided through the construction of footpaths above grade; 1. based on the evidence of the Parties' expert arborists, I am satisfied that the evidence of Mr Tesoreiro is a more reliable predicter of potential impacts of the Proposed Development on trees, noting: 1. the concessions provided by Mr Gray under cross examination in which he agreed that a number of his more optimistic predictions with respect to tree retention could only be achieved through amendment to the Applicant's plans; 2. I have no evidence before me that the required amendments identified by Mr Gary in relation to relocation of sewers and construction of above grade footpaths are achievable, and such amendments are certainly not represented in the plans upon which the arborists undertook their tree retention assessments, nor were they identified by Mr Gray in his joint reporting with Mr Tesoreiro; 3. the predicted tree retention outcomes envisaged by Mr Gray required that the identified trees also withstand intrusions into their TPZs that significantly exceed the recommended intrusions under Australian standards in order to be confident that trees would withstand TPZ intrusions and so remain viable in the long term; 4. the evidence of Mr Tesoreiro is more consistent with the application of the precautionary principle in relation to assessing the prospects for the long-term retention of trees within the Proposed Development; 1. based on my conclusions concerning the evidence of the expert arborists, I am satisfied that: 1. the Applicant's BDAR in its final amended form, and including its addendum in relation to HJG, has underestimated the assessed impacts of the Proposed Development on biodiversity values, notably those in relation to impacts on koala habitat, specifically KFTs, as identified in cl 1.4(a), (b), (c) and (d) of the BC Regulation; 2. the Applicant's Proposed Development, as represented by the plans upon which it relies, are inconsistent with the requirements identified by its own expert arborist as those that would be necessary to achieve its tree retention outcomes for trees 68, 76, 77, 106, 102, 107 and 111; 3. based on the evidence of the Respondent's expert arborist, Mr Tesoreiro, which I prefer to that provided by Mr Gray, and for the reasons provided by Mr Tesoreiro, which I adopt, the Applicant's proposed retention of trees 68, 76, 77, 101, 102, 103, 104, 106, 107, 108 and 111 is unlikely to be achieved; 1. based on my conclusions above (at [(e)]), and noting the likely impacts of the Proposed Development on KFTs proposed for retention, but which are unlikely to be retained: 1. I am unable to be satisfied that the Proposed Development's impacts on biodiversity values, which is a consideration under the provisions of s 7.13(2) of the BC Act, have been fully or satisfactorily assessed within the Applicant's BDAR; 2. I am unable to be satisfied the Proposed Development is located, designed, constructed and managed to avoid adverse impacts on KFTs and koala habitat, as required under the provisions of Part 4.4 (1)(a) of CKPoM; and 3. as a consequence of my finding above at [(ii)]), I am unable to be satisfied the Proposed Development is consistent with the approved koala plan of management which is required under s 4.8(2) of SEPP B&C.
As a consequence of the above points (at [52]), I am satisfied that: 1. the Proposed Development would not have a serious and irreversible impact on biodiversity values including in relation to the koala and HJG; and 2. the Applicant's BDAR has documented and justified the efforts to avoid and minimise impacts, as identified by the Applicant, as required under the BAM; but 3. the Applicant has not identified and assessed fully the Proposed Development's impacts on the biodiversity values, notably in relation to the retention of KFTs which form part of koala habitat, and which: 1. can be a further consideration under the provisions of cl 7.13(2) of the BC Act; and 2. is required in order for the Proposed Development to be consistent with the CKPoM and to satisfy the provisions of s 4.8(2) of SEPP B&C; 1. the likely impacts of the Proposed Development, including its natural environmental impacts, have not been satisfactorily assessed, which is a consideration under the provisions of s 4.15(1)(b) of the EP&A Act; 2. noting the points above (at [(3)] and [(4)], the Applicant's Proposed Development, on its merits, should not be approved.

Does the Proposed Development provide suitable vehicular access as required under cl 6.9 of LLEP

The Respondent had contended that the Proposed Development did not provide suitable vehicular access to the Subject Site as required under cl 6.9 of LLEP (see above at [25(3)]).
The basis for this contention was the agreed evidence of the Parties' expert traffic engineers that: 1. The Applicant's proposed subdivision would have unacceptable impacts on the operation of the intersection of Invercauld Road and the Bruxner Highway; and 2. The management of the potential traffic impacts of Stages 4 to 8 of the Proposed Development required that the intersection of Invercauld Road and the Bruxner Highway be upgraded to maintain the functionality of that intersection under the influence of the additional traffic flows generated by those later stages of the development.
In relation to this contention, the Parties provided the following further submissions: 1. the Respondent submitted that: 1. although upgrade works to the Invercauld Road intersection with the Bruxner Highway were identified in the Respondent's 2014 contributions plan, with an anticipated budget for those works, no such works had been undertaken to date to provide the required upgrade; 2. the fact that those required upgrade works had not been undertaken would give rise to questions about whether they would ever occur; and 3. given the above points, it was not certain that the required suitable vehicular access for Stages 4 to 8 of the Proposed Development is available for the purposes of satisfying cl 6.9 of LLEP; 1. the Applicant submitted that: 1. it did not dispute what was contained in the Respondent's contributions plan which it observed was uncontroversial, and which it accepted could and does change from time to time; 2. the Proposed Development did not include a proposal to upgrade the intersection at Invercauld Road and Bruxner Highway, and acknowledged that these works were the responsibility of others, including the Respondent and Transport for NSW, over which it had no control; 3. notwithstanding the above, it was content to accept the imposition of a condition of consent, described as a Grampian condition, based on precedent in the case of Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council 1984 S.C. (H.L.) 58, which would limit certain aspects of a development proceeding until certain off-site works were completed; 4. such Grampian conditions had been imposed by the Court, and I note the extended discussion by my learned colleague Adam AC in Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234 (at [196] to [208]), prior to his imposition of a Grampian condition (at [209]) as an operational condition in relation to the grant of consent; and 5. a decision of the Court that it was satisfied as to the current availability of suitable vehicular access to the Subject Site in relation to the Proposed Development would be consistent with the assessment of the Proposed Development by the Respondent's Development Assessment Officer, tendered as part of Exhibit 3 during the hearing, which noted that all essential services were available for the Proposed Development as required under the provisions of cl 6.9 of LLEP.
I have considered the submissions of the Parties and the evidence of the Parties traffic engineering experts on this matter, and I agree with the Applicant that, while the upgrade of the intersection at Invercauld Road and the Bruxner Highway is required for, and should be a conditioned for completion prior to the commencement of any works on Stages 4 to 8 of the Proposed Development, the Subject Site does have suitable vehicular access for the purposes of satisfying the provisions of cl 6.9, noting that: 1. vehicles can access the Subject Site from Invercauld Road as well as the road network within those completed parts of the Eastwood Estate development; 2. as discussed during the hearing, Invercauld Road has road network connections to other parts of Lismore and Goonellabah, and services provided by those towns, via thoroughfares such as Cynthia Wilson Drive and connections through Simons Avenue/Clifford St/Norwood Avenue/Pleasant Street to Rous Road; and 3. consistent with the assessment of the Council's Development Assessment Officer cited by the Applicant in its submissions, I am satisfied that the essential services identified within cl 6.9 of LLEP are available or that adequate arrangements have been made to make them available when required in relation to the Applicant's Proposed Development.

Are the Applicant's proposals for stormwater management satisfactory in relation to the relevant statutory requirements and whether they are, as a consequence, acceptable?

The provisions of cl 6.9 of LLEP (see above at [25(3)]) also require that development consent must not be granted to a development unless the consent authority, or the Court on appeal, is satisfied that certain services, including in relation to stormwater drainage and on-site detention, that are essential for the Proposed Development, are available or that adequate arrangements have been made to make them available when required.
Further, the provisions of Chapter 5A of LDCP in relation to urban residential subdivision include a section 4.7 (see above at [37(1)(b)]) concerning essential services, and in relation to stormwater management have performance criteria P28 that requires the provision of stormwater management measures that will, inter alia, deliver high standards of water quality to receiving waters and protect natural watercourses. It also identifies that an acceptable solution to meet the P28 criteria is for the subdivision design and construction to comply with the requirements of Chapter 22 of LDCP (see above at [37(2)]) concerning water sensitive urban design.
The Applicant has proposed that stormwater flows arising from the Proposed Development be directed to a single stormwater management basin which would act as a sedimentation basin during the construction phase of the development and which would, subsequently, act as a water quality treatment facility following completion of the construction phase.
The location of the basin is illustrated in the figure below (shaded in blue), where it can be found about midway along the eastern side of the Proposed Development.
The Applicant's proposed stormwater detention basin is located within that portion of the Subject Site zoned R1 General residential, having been previously proposed for location within the area of the Subject Site zoned C3 Environmental management.
The Applicant also submits that the design of the single stormwater detention basin is responsive to Lismore City Council's engineering design requirements which it submits prefer designs based around a single basin in order to simplify the management of such assets once they are transferred by the Applicant to the Council which would take long term responsibility for its management.
The Parties' stormwater engineering experts, Mr Bewsher, for the Applicant, and Ms Collier, for the Respondent, prepared a joint expert report which was tendered as evidence at the hearing, along with a supplementary report prepared at the direction of the Court and also tendered into evidence.
On the basis of those reports, the Parties agreed that a number of stormwater related matters that had been in contention had been resolved through the Applicant's most recent amendments to its Proposed Development, or through the Applicant's agreement to accept the imposition of proposed conditions of consent.
The Parties' stormwater engineering experts identified that the only remaining contention unresolved by these experts was the necessity for the Applicant to provide a 'combined' Model for Urban Stormwater Improvement Conceptualisation (MUSIC) model for the management of stormwater on the Subject Site, and in relation to this: 1. he Respondent's stormwater expert, Ms Collier, said that: 1. the Applicant had provided three separate MUSIC models which served different purposes and provided different, and at times inconsistent, outcomes; 2. the three models were identified as the so-called "NDC original model", the "G&S model", and the "revised NDC model"; and 3. the key issues remaining were: 1. the G&S model did not appear to report surface runoff, and the model therefore is not representative of the surface flows exiting the bioretention basin and so the potential impacts of those flows on the receiving environment cannot be confirmed reliably; 2. some of the NDC model assumptions possibly overstate the pollution load from the existing site use and therefore the model outcomes in relation to achieving neutral or beneficial outcomes following the Proposed Development's delivery may not be reliable; and 3. the G&S model may also over-estimate the amount of sub-surface flow by virtue of the use of soil storage capacity and recharge rates that are representative of a different underlying soil type to that which is actually present on the site, and specifically the use of parameters for a clay loam soil type rather than clay soils; 1. a further issue remaining was that, in Ms Collier's assessment, the Applicant's proposed inclusion of infiltration pits in its subdivision design effectively transferred what Ms Collier described as a "reasonable portion of day-to-day stormwater treatment" from the bioretention basin to the infiltration pits, which are not designed for this purpose, and which would result in a reduction in the quality of treatment of pollutants in stormwater flows. 1. the Applicant's expert, Mr Bewsher stated in response to the above points that: 1. the G&S model was not developed to assess the performance of the bioretention basin and surface runoff, and was better suited to assist in the assessment of subsurface flows, and so Ms Collier's conclusions and concerns in relation to underestimation of surface flows in the G&S model, and the impacts of those flows, were inappropriately founded; 2. the NDC model assumptions were consistent with good practice and current land use, particularly in relation to the selected current use of the land for cattle grazing; and 3. the soil profile selection used in the G&S model is appropriate and consistent with advice from developers of the MUSIC model; 4. the Applicant's infiltration pits would capture less than 20% of post development run-off and screens located upstream of these pits would capture trash and litter, while nutrient treatment levels would not be inconsistent with flows originating from the land under its current use for cattle grazing.
During their oral testimony at the hearing: 1. Ms Collier, for the Respondent: 1. noted that she held no conceptual opposition to the use of infiltration pits as proposed by the Applicant but was not confident that the pits were designed to deal with likely stormwater flows and so would not achieve water quality treatment outcomes required so as not to impact adversely the environmental features, including water quality, in the C3 lands; and 2. reiterated her concerns in relation to the Applicant's use of three MUSIC models which operated on differing assumptions, such as using differing data sources for such parameters as rainfall, and which, in her view: 1. made it difficult to draw conclusions in relation to the post development performance of the Applicant's Proposed Development in relation to stormwater capture and treatment; 2. did not provide a satisfactory basis for approval of the Proposed Development including through a reliance on the imposition of conditions of consent; 1. Mr Bewsher: 1. stated that the different MUSIC models had each been prepared for different assessment purposes; 2. confirmed his position that the use of cattle grazing as the current use of the land was correct; 3. confirmed that the location of proposed infiltration pits did not need relocation in response to the expert evidence of the Parties' geotechnical engineers in relation to presence or otherwise of fill at the locations of proposed pits; 4. agreed with the Respondent that: 1. he could not confirm what the nutrient loads would be from water passing through the infiltration pits; 2. the nutrient loads likely to be generated by the infiltration pits had not been determined; 3. while 80% of stormwater flows would be directed to the bioretention basins, all of the water from low flow storm events would be directed to the infiltration pits, and would, as a consequence, not be treated before discharge from the pits; 4. the 2.5m width of the proposed infiltration pit structures would not fit into the 1.5m width of verges proposed by the Applicant in the design of some areas, including in areas where some trees were proposed for planting in the vicinity of the proposed infiltration pits; and 5. in order to respond to the inadequate width of some verges, or the proposed location of trees, that may restrict the installation of the pits, either the location of the trees or the pit locations would need to be changed from those illustrated in the Applicant's plans.
In response to the above evidence from the Parties' stormwater experts: 1. The Applicant, relying on the evidence of Mr Bewsher, submitted that: 1. Mr Bewsher had responded adequately to the concerns identified by Ms Collier, noting in particular the matters identified by her above (at [66(1)(c)]) concerning the current use of the Subject Site, the selection of soil type within the MUSIC model and the matters concerning surface and subsurface flows; 2. while the Parties' experts remained apart in relation to the Applicant's MUSIC modelling, there would be no benefit in undertaking further modelling; 3. the Applicant's proposed bioretention basin complied in both size and for the purpose of managing water quality outcomes; 4. it had satisfied the Court adequately so far as development consent is concerned with stormwater quality and stormwater quantity design which has been "carefully evidenced"; 1. the Respondent, relying on the evidence of Ms Collier, submitted that: 1. the Court could not be confident of the stormwater management outcomes that would arise from the Applicant's Proposed Development, and so could not form a state of satisfaction with respect to the assessment of the environmental impacts of the Proposed Development such that it could be the subject of a grant of consent; and 2. even though the Applicant submitted that its proposed stormwater management system would have a neutral or beneficial impact in relation to the management of stormwater flowing into the C3 zoned lands post development, it was not willing to make good that submission through adoption of the Respondent's proposed condition, identified as proposed condition 12(a) in the Respondent's draft conditions that formed Exhibit 11, but rather sought to qualify its intended stormwater outcomes through proposing that the Respondent's no change outcomes in relation to water quality be substituted by a requirement that the Proposed Development should generate no 'significant' change in water quality and quantity.
I have considered the evidence provided by the Parties' expert stormwater engineers (above at [66] and [67]), and their submissions (see above at [68]), and I have concluded that: 1. I agree with the Applicant, relying on the evidence of Mr Bewsher, that the assumptions of the three MUSIC models with respect to the current use of the Subject Site, and its selection of soil type are appropriate, and do not compromise the outcomes generated by those models; 2. Notwithstanding this, I agree with the Respondent's submission in closing (see above at [68(2)(a)]) that I am unable to form a state of satisfaction with respect to the Applicant's assessment of the environmental impacts of the Proposed Development stormwater management such that the Applicant's development application in this appeal could be the subject of a grant of consent because: 1. I agree with, and adopt, Ms Collier's evidence (see above at [67(1)(a)]) that, in relation to the proposed use of infiltration pits, I cannot be confident that the pits have designed to deal with likely stormwater flows and I am not satisfied that the pits would achieve the water quality treatment outcomes required so as not to impact adversely the environmental features, including water quality, in the C3 zoned lands; 2. I also note the evidence of Mr Bewsher (see above at [67(2)(d)]) which, in my assessment, is consistent with the evidence of Ms Collier, with respect to the reliance that can be placed on the design of the Applicant's proposed use of infiltration pits, and which, to my satisfaction: 1. confirms that up to 20% of overall stormwater flows and 100% of low flow stormwater events, which I consider a significant proportion of all flows to be managed, would have no water quality management prior to their entering the C3 zoned environmental lands on the Subject Site; and 2. gives rise to the uncertainty concerning the deliverability of the Applicant's stormwater management plans noting that, as stated by Mr Bewsher, he could not confirm that the infiltration pits could be accommodated within certain proposed verge locations owing to either the inadequate width of the verge or the proposed planting of trees in those locations.
I also conclude, based on my findings above (at [69(2)]) that the Proposed Development, should also not be approved because it: 1. Does not meet the requirements of Chapter 22 of LDCP in relation to water sensitive urban design, because: 1. I am not satisfied that it provides an appropriate combination of the water sensitive design measures, and, as noted by Mr Bewsher, has not demonstrated through any assessment, the compliance of the infiltration pit elements of its stormwater management system which will capture up to 20% of stormwater flows from the Proposed Development, as required under Table 4 of Chapter 22 of LDCP; 2. I am not satisfied that the Applicant's stormwater plans represent any of the so-called "deemed to comply" solutions identified for residential developments in Table 2 of Chapter 22 of LDCP; 3. I am not satisfied that it would achieve the objectives of Chapter 22 of LDCP, in particular objectives 3, 6 and 7 which require that the Proposed Development should: 1. ensure that stormwater discharged from a new development minimises adverse impacts on the environment and receiving waters; 2. protect and restore aquatic ecosystems within the development site and downstream; and 3. ensure the function of stormwater drainage and flood protection elements of designs are not compromised by incompatible or inappropriate water sensitive designs; 1. does not meet performance criteria P28 in section 4.7 of Chapter 5A of LDCP in relation to urban residential subdivision, and which specifically concerns essential services, and which requires the provision of stormwater management measures that will, inter alia, deliver high standards of water quality to receiving waters and protect natural watercourses; 2. does not achieve the objectives identified in Principles 6 and 8 in section 1.2 of Chapter 5A (see above at (37(1)(a)), which serve, in my assessment, as objectives for performance criteria P28 in section 4.7 of Chapter 5A of LDCP, and which require that the Proposed Development should: 1. protect and enhance the natural and cultural values of the area; and 2. incorporate water sensitive urban design principles to protect the natural water cycle, support healthy ecosystems, and maintain water quality; 1. as a consequence of my conclusions above (at [(1)], [(2)] and [(3)]), the Proposed Development does not represent a feasible alternative solution that would merit the application of flexibility in relation to compliance with the controls in Chapters 5A and 22 of LDCP; and 2. relying on my conclusions above (at [(1)] to [(4)]), the Proposed Development does not satisfy the provisions of cl 6.9 of LLEP in relation to the provision of essential services in relation to stormwater management.
Based on my conclusions above (at [70]) and noting the uncertainty of the potential water quality impacts of the Proposed Development on the C3 zoned lands on the Subject Site, I am unable to be satisfied that the Proposed Development is consistent with the objectives of the C3 zone (see above at [25(1)(b)(ii)]), particularly the objective to protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values, which, pursuant to cl 2.3(2) of LLEP, is a matter to which I am required to have when determining a development application.
I also note, but do not rely upon, the Respondent's submission (above at [68(2)(b)]) that the Applicant has proposed that the Respondent's proposed condition 12(a) requiring that the Proposed Development result in no change to water quality flowing into the C3 zoned lands be qualified through the inclusion of the phrase no significant change in water quality be he required outcome, and which: 1. would weaken, in my assessment, the likelihood of the Applicant's Proposed Development successfully mitigating its potential stormwater impacts on the C3 zoned lands; and 2. would limit the capacity of any regulator to hold the Applicant to account should the stormwater flows from the Proposed Development, at some point, be assessed to have an adverse impact on the C3 lands, as the Applicant's proposed alternative condition does not proffer any definition by which the "no significant change" outcome might be assessed. By contrast, the Respondent's no change requirement would be more clearly and easily be monitored and determined.

Alternative designs of the Applicant's stormwater management system

I have already made findings in this judgment that the Proposed Development should not be approved because: 1. as identified above (at [53(3)]), the Applicant has not identified and assessed fully the Proposed Development's impacts on the biodiversity values, notably in relation to the retention of KFTs which form part of koala habitat; and 2. as identified above (at [70]), I am unable to be satisfied that the Applicant's stormwater management system: 1. includes measures that would, inter alia, deliver high standards of water quality to receiving waters and protect natural watercourses, as required under performance criteria P28 of Chapter 5A of LDCP; 2. would achieve the objectives of Chapter 22 of LDCP, in particular objectives 3, 6 and 7; 3. would achieve the objectives identified in Principles 6 and 8 in section 1.2 of Chapter 5A, which serve, in my assessment, as an objective for performance criteria P28 in section 4.7 of Chapter 5A of LDCP; 4. does not represent a feasible alternative solution that would merit the application of flexibility in relation to compliance with the controls in Chapters 5A and 22 of LDCP; and 5. fulfills the provisions of cl 6.9 of LLEP in relation to the provision of essential services in relation to stormwater management; 6. is consistent with the objectives of the C3 zone land that forms part of the Subject Site.
A further issue that arose in relation to the Applicant's stormwater management system was the matter concerning whether the Applicant's design, which centred on the provision of a single detention basin for reasons identified by the Applicant above (at [63]), was the most appropriate design given its implications for road and lot design in the area of lots 501, 502 and 503. That road design, and the consequential design of lots 501, 502 and 503, would require the removal of a further significant stand of KFTs.
In response to the Applicant's submission (see above at [63]) that the design of the stormwater treatment system had been in response to a specific requirement from Lismore City Council engineering guidelines requiring a single detention basis, the Respondent had submitted that: 1. while the relocation of the bioretention basin from the C3 zoned lands, as originally proposed, into the Applicant's R1 zoned lands was a positive development, the location of that basin in the R1 zoned lands required certain earthworks to be undertaken in the vicinity of proposed lots 501, 502 and 503 so that stormwater and drainage could be directed to the single basin. This would require the removal of a stand of KFTs that have high environmental/biodiversity value and which, if possible (through a further amended design), ought be retained; and 2. Lismore City Council's strategic engineer, Mr Lucas Myers, in a memo dated 5 April 2023 which was tendered as evidence at the hearing, had noted that while Council had no formal policy on minimising long term maintenance requirements of subdivisions and their assets: 1. Council's general advice to proponents was that they should design stormwater management assets in subdivisions to minimise, and where possible centralise (eg. a singular basin or sewer pump station) those assets; 2. the objectives of Council's policy on the subdivision of land included an objective to minimise adverse environmental effects on the natural environment; 3. based on the above points (at [(a)] and [(b)]), Council would consider accepting additional maintenance structures if necessary to avoid or minimise adverse effects on the natural environment, such as impacts on significant trees or other important ecological features of the site; and 4. more specifically, Council would consider accepting additional stormwater infrastructure, such as a second detention basin, if this would mitigate the potential ecological impacts in the vicinity of lots 501, 502 and 503, such as removing the requirement to remove the significant KFTS near those blocks.
Both Parties in their respective closing submissions had drawn the Court's attention to the remarks of McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 (referred to hereafter as BGP Properties) (at [117]-[119]) concerning weight that must be given to the intent of the zoning of land in determining development applications, and in relation to which: 1. the Applicant had noted the former Chief Justice's remark in BGP Properties that ; "117 …. planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects"… and; 1. the Respondent, in reply to the observation of the Applicant: 1. had first observed that the former Chief Justice had also said in BGP Properties (at [118] and [119]) that: "118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project." 1. had later stated (in Transcript 16/5/2 pg 53 para 45) that: "… it does not say that residential development of the subject land and conserving biodiversity on this site is mutually exclusive. The problem is that the subject design doesn't achieve an acceptable or appropriate balance between providing residential lots and conserving important biodiversity, at both a local and state level, and its particularly the koala in this case that is of significant importance."
Noting the comments made by the Council's Strategic Engineer as recorded above (at [75(2)]), along with my reasons summarised above (at [75]) for refusal of the Applicant's development application in this appeal, I agree with the submission of the Respondent above (at [76(2)(b)]) in relation to the likelihood of future development on the Subject Site, and the design of any such future development.

Conclusions

On the basis of my assessment and conclusions above in this judgment, I am satisfied that, having regard to the matters in s 4.15(1)(b) - (e) of the EP&A Act, the Proposed Development should not be approved because: 1. as noted above at [73(1)], as identified above (at [55(3)]), I am not satisfied that the Applicant's development application identified and assessed fully the Proposed Development's potential impacts on the biodiversity values, notably in relation to the retention of KFTs which form part of koala habitat, and which: 1. can be a further consideration in relation to the determination of a development application under the provisions of s 7.13(2) of the BC Act; 2. is required in order for the Proposed Development to be consistent with the CKPoM and to satisfy the provisions of s 4.8(2) of SEPP B&C; and 3. as a consequence, requires that I conclude that the likely impacts of the Proposed Development, including its natural environmental impacts, have not, in my opinion, been satisfactorily assessed, which is a consideration under the provisions of s 4.15(1)(b) of the EP&A Act; 1. as identified above at [72], I unable to be satisfied that the Applicant's stormwater management system is acceptable for the reasons provided above (at [70(1)] to [70(5)], and [71]) in relation to: 1. the inconsistency of the Proposed Development with controls, and non-achievement of objectives, concerning stormwater management and water sensitive urban design in Chapters 5A and 22 of LDCP; and 2. its inconsistency of the Proposed Development with the objectives of the C3 zoned lands on the Subject Site.
Having concluded that the Proposed Development should not be approved for reasons identified above (at [78]), it is not necessary for me to resolve the remaining contentions in the appeal in relation to: 1. potential geotechnical impacts associated with the Applicant's proposed installation of infiltration pits for stormwater management (see above at [20(4)]); and 2. the provision of parklands, and the amenity of the Proposed Development for future residents (see above at [22(7)]).
Finally, I note that, as identified above (at [17]), the Respondent had sought an order that the Applicant pay its costs thrown away in dealing with the Applicant's amended plans and further documentation, and I agree that an order to this effect should be made in disposing of the appeal.
As a consequence, the Court is able to make the following orders.

Orders

The Court orders: 1. the Applicant is ordered to pay the Respondent's costs thrown away in dealing with the Applicant's amended plans and further documentation in the appeal, as agreed or assessed, pursuant to the provisions of s 8.15(3) of the EP&A Act. 2. the appeal is dismissed. 3. the Applicant's development application No. 2.2021.262.1 seeking consent for the subdivision of land to create 196 residential lots, along with one residual open space lot and associated roads, bulk earthworks, essential services (water, sewer, power and telecommunications), stormwater management facilities, landscaping and environmental rehabilitation works, is determined by way of refusal. 4. the exhibits are returned, with the exception of exhibits A, B, C and 2.

Amendments 19 July 2023 - Pursuant to rule 36.17 of the UCPR, typographical error amended at paragraph [4]. 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: 19 July 2023

(2004) 138 LGERA 237

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

Parties

Cases Cited (3)